Ness v. Yeomans, 5841.

Decision Date21 January 1931
Docket NumberNo. 5841.,5841.
Citation234 N.W. 75,60 N.D. 368
PartiesNESS v. YEOMANS.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

One who is shown to have experience in the taking and interpretation of X-ray pictures is not rendered incompetent to testify in a malpractice case simply because he is a chiropractor pursuing a system of treatment for human ills different from that pursued by the defendant.

Syllabus by the Court.

A physician and surgeon is not an insurer of the results of his treatment of a patient.

Syllabus by the Court.

In an action against a surgeon for damages claimed because of alleged malpractice, it is incumbent upon the plaintiff to show that the course of treatment prescribed and followed by the defendant was not the good and accepted practice of his school of medicine in his community; or that the defendant neglected to give proper treatment, or violated some of the rules of such good practice so that the result complained of necessarily came from wrong methods employed or the violation of good practice.

Additional Syllabus by Editorial Staff.

Appeal from District Court, Ward County; Geo. H. Moellring, Judge.

Action by Gilbert Ness against T. N. Yeomans. There was a verdict for plaintiff, and the court denied defendant's motion for judgment notwithstanding the verdict or for new trial, and defendant appeals.

Reversed and remanded.

Geo. A. McGee and I. H. Breaw, both of Minot, for appellant.

John J. Garrity, E. R. Sinkler, and G. O. Brekke, all of Minot, for respondent.

BURR, J.

The defendant, a physician and surgeon, is charged with malpractice arising from the setting and treatment of a broken arm. The jury found for the plaintiff, and, the court having denied a motion for judgment notwithstanding the verdict or for a new trial, the defendant appeals.

There are 87 assignments of errors, 66 of which deal with rulings on the admission of testimony, 17 with reference to the charge given to the jury, and the remainder with rulings on the motion for a new trial, etc. In addition there is a specific allegation that the evidence is insufficient to sustain the verdict.

On the 17th of November, 1929, the plaintiff suffered a fracture of the ulna of the right arm at a point about one-third of the distance from the wrist to the elbow. Two days thereafter, while he was in the hospital in Minot, the defendant was called to treat him, and set the bone giving some subsequent treatment. Plaintiff's claim is the bone was not properly set, and that the proper subsequent treatment was not given. It is the claim of the defendant that under all of the circumstances of the case the union of the bone is a good union, and that, if the plaintiff suffered from stiffness of the muscles and tendons, it was because of his failure to follow instructions given him by the defendant and his failure to come for treatment.

[1] Many of the objections made by the defendant during the introduction of testimony center around the testimony given by one L. M. Ellithorpe. The plaintiff, in order to prove his case, introduced certain X-ray pictures, some of which were taken by this witness.

As foundation for the introduction of these pictures, the witness testified that he was a duly and regularly licensed chiropractic under the laws of this state, with several years' practice and with six years' experience in the making of X-ray pictures. He showed that he had made a thorough study of human anatomy for about two years while at school, and that this was part of his training; that he had taken several hundred of these pictures and knew the contour, position, and action of the bones in the human body. He showed the position in which the arm was placed at the time of the taking of the X-ray, and stated the picture identified was a true and correct picture of the arm at the time the picture was taken. He was then permitted to testify as to what the picture showed-the break in the bone, its position, and the nature of the union. To all of this the defendant interposed objections, the theory being that, because the witness was a chiropractor, pursuing a system of treatment for human ills different from that pursued by the defendant, he was not competent to give expert testimony.

There was no error in permitting the witness to testify as to the taking of the X-ray photographs and what these showed. The fact that he was a chiropractic was a mere incident, except so far as it showed his knowledge and study of human anatomy. The names, number, and position of the bones in the human body are the same, whether one is a regular physician, a chiropractic, or a laic. It is not the school which he follows; but his knowledge, experience, and special training which qualifies the witness to testify as an expert in such cases. A chiropractor may testify as to matters in which he is qualified to speak so long as he is not attempting to testify in regard to a school of treatment separate and distinct from his. He could not testify as to the methods and practices of this other school without showing his qualifications therefor. He was not so testifying. In the matter before the court it was immaterial that he was a chiropractor. If he had studied human anatomy so as to acquire special knowledge, if he knew how to take X-ray photographs so as to give correct representations, if he knew how to read and interpret them, then he was qualified to speak. The question of the qualification of the witness is primarily one for the trial court. A chiropractor may testify and interpret an X-ray picture upon showing practice therein and professional study. See Ladlie v. American Glycerin Co., 115 Kan. 507, 223 P. 272, 273. The weight given his testimony is for the jury. There was no error in permitting his testimony on such subjects in this case.

Owing to the quality of the evidence introduced, as shown by the record, it is not necessary for us to pass upon other assignments of error in the introduction of testimony nor the allegations of error with reference to the charge given by the court or failure to charge.

According to the testimony of the plaintiff he was fifty-five years of age at the time of the accident. He broke his arm November 17, 1929. Two days thereafter he came to the hospital and the defendant commenced treatment. Plaintiff says the defendant examined the arm through an X-ray machine, attempted to set the bone, put on a cast with the assistance of one of the nurses, and that the defendant never examined it again through the X-ray; that the nurse put the arm in a sling with the palm of the hand up; that he returned in about four weeks, for treatment, and this time the defendant opened the cast, drew it tighter, and plaintiff went home for another two weeks; when he came back defendant was absent and he consulted Dr. C.; later he went to another doctor and did not go back to defendant because he thought he couldn't do me anything when it wasn't set right.” He says that at the end of eight weeks the defendant told him to let the arm drop down, to flex the joints and to “start to work with it but I was not able to do that”; and the other doctor told him to do the same, but it hurt too much; that he could turn his arm in a certain way but not in other ways; that Dr. Cameron took an X-ray and later Dr. Devine, and that during the summer of 1929 Dr. Ellithorpe, the chiropractor, took...

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4 cases
  • Stokes v. Dailey
    • United States
    • North Dakota Supreme Court
    • July 10, 1959
    ...not guarantee or insure a good result, or that he will effect a cure. 70 C.J.S. Physicians and Surgeons Sec. 47, p. 954; Ness v. Yeomans, 60 N.D. 368, 234 N.W. 75. A physician's implied obligation arising from his employment is only that no injury shall result from any want of care or skill......
  • Klein v. Harper
    • United States
    • North Dakota Supreme Court
    • April 22, 1971
    ...of the witness is primarily one for the trial court. * * * The weight given his testimony is for the jury.' Ness v. Yeomans, 60 N.D. 368, 234 N.W.2d 75, 76 (1931). The court held that there was no error in permitting the testimony of the chiropractor on such subjects in that case. Ness v. Y......
  • Benzmiller v. Swanson
    • United States
    • North Dakota Supreme Court
    • October 2, 1962
    ...of a special agreement, a physician or surgeon does not guarantee or insure a good result, or that he will effect a cure. Ness v. Yeomans, 60 N.D. 368, 234 N.W. 75; Stokes v. Dailey (N.D.), 97 N.W.2d 676; 70 C.J.S. Physicians and Surgeons Sec. 47, p. 954. A physician does have an implied ob......
  • Collom v. Pierson, 11428
    • United States
    • North Dakota Supreme Court
    • August 20, 1987
    ...his knowledge, experience, and special training which qualifies the witness to testify as an expert in such cases." Ness v. Yeomans, 60 N.D. 368, 234 N.W. 75, 76 (1931). If the medical witness has such "knowledge, experience [or] special training," an objection about his particular field or......

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