Osborn v. Carey

• Decision Date: 31 May 1913
• Citation: 132 P. 967,24 Idaho 158
• Parties: ELTON OSBORN, an Infant, by CHAS. S. OSBORN, His Guardian ad Litem, Respondent, v. FRANK T. CAREY, Appellant
• Court: Idaho Supreme Court

132 P. 967

24 Idaho 158

ELTON OSBORN, an Infant, by CHAS. S. OSBORN, His Guardian ad Litem, Respondent, v. FRANK T. CAREY, Appellant

Supreme Court of Idaho

May 31, 1913

PHYSICIAN-MALPRACTICE-COMPLAINT-UNCERTAINTY-NOT SPECIFIC-DEMURRER-CROSS-EXAMINATION-ADVERSE PARTY-NEGLIGENCE-EVIDENCE-IMPROPER DIAGNOSIS-IMPROPER TREATMENT-EXPERT EVIDENCE-HISTORY OF THE CASE-HYPOTHETICAL QUESTION-INSTRUCTIONS.

1. In an action to recover damages for negligence and carelessness in the diagnosis and treatment of what is alleged to be a "well-known disease," without naming the disease or without alleging wherein the treatment was wrong, the complaint is uncertain and not specific, and subject to demurrer on the ground of uncertainty.

2. A complaint which does not specifically allege the things concerning which negligence is imputed is open to demurrer for uncertainty.

3. Where a physician is called as an expert witness to give his opinion based upon assumed facts and the "history of the case," which history was material to such opinion and was not within the personal knowledge of the expert witness but had been obtained from conversation with others, such opinion has no value as proof.

4. The "history of the case" should be put in evidence as any other fact, and then the jury should give such weight to the expert opinion as it deserves; but if the "history of the case" is not introduced in evidence, then the expert opinion thereon should be given no weight.

5. The jury should determine whether or not the facts upon which the hypothetical question is based have been proved to their satisfaction, and if the witness states that the history of the case was given him by other persons, and does not state what that history was, such expert opinion is not entitled to any weight or value as evidence.

6. Held, that the evidence is not sufficient to support the verdict.

7. Where a witness on cross-examination is examined as to prior inconsistent statements which are in writing, the writing must first be exhibited to the witness before he is required to answer.

8. Held, that the giving of a certain instruction was not error.

APPEAL from the District Court of the Fourth Judicial District for Lincoln County. Hon. Edward A. Walters, Judge.

Action to recover damages on the ground of carelessness and negligence in diagnosing and treating a certain disease. Judgment for plaintiff. Reversed.

Judgment reversed and a new trial granted, with costs in favor of the appellant.

Bowen & Porter, W. P. Guthrie and Frank T. Disney, for Appellant.

In overruling defendant's demurrer the court placed the defendant at a great disadvantage. He was entitled to know just what was the disease from which it was contended plaintiff was suffering. He was certainly entitled to understand the nature of plaintiff's proof. Under the very general allegation of the complaint, plaintiff could prove the disease to be a hundred different ailments.

Our demurrer is likewise well taken on another ground. Even though the ailment were osteomyelitis; even though the defendant treated it as blood poisoning, still the nature of the disease might be such that in the opinion of physicians they should be treated alike, and if such were so, defendant would not be liable for using such treatment even though it did not produce a good result. (Tomer v. Aiken, 126 Iowa 114, 101 N.W. 769; Jackson v. Burnham, 20 Colo. 532, 39 P. 577; Hawley v. Williams, 90 Ind. 160.)

Where a witness on cross-examination is to be examined as to prior inconsistent statements which are in writing, the writing must first be exhibited to the witness. (Am. & Eng. Ency. of Law, 1062, 1063, 1088, 1096; Elliott on Evidence, secs. 971, 973; Greenleaf on Evidence, secs. 450, 450b; Stephen's Dig., p. 592; Wigmore on Evidence, secs. 920, 969.)

"The hypothetical question should include substantially all the facts relating to the subject upon which the opinion is sought." (Kennedy on Evidence, p. 30.)

An opinion based upon assumed facts not proven or in evidence is entitled to no weight. (Wigmore on Evidence, sec. 672; Forsyth v. Doolittle, 120 U.S. 77, 7 S.Ct. 408, 30 L.Ed. 586; Hall v. Rankin, 87 Iowa 261, 54 N.W. 217; Lawson on Expert Opinion Evidence, pp. 152, 153; Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 11 S.Ct. 720, 35 L.Ed. 371; Smart v. Kansas City, 91 Mo.App. 586; 5 Ency. of Evidence, pp. 645, 646; Central R. & Bldg. Co. v. Maltsby, 90 Ga. 630, 16 S.E. 953; In re Will of Norman, 72 Iowa 84, 33 N. W: 374; Howe v. Richards, 112 Iowa 220, 83 N.W. 909; Roark v. Greeno, 61 Kan. 299, 59 P. 655; Lanford v. Jones, 18 Ore. 307, 22 P. 1064; note to Hull v. St. Louis, 42 L. R. A. 761; Stone v. Chicago etc. Ry. Co., 66 Mich. 76, 33 N.W. 24; Brickwood's Sackett on Instructions to Juries, sec. 382; People v. Foley, 64 Mich. 148, 31 N.W. 94.)

Edward K. Walsh and Sutphen & Sutphen, for Respondent.

We submit that the complaint contained all the averments necessary or usual in such cases. The pleaders studiously followed the suggestions to be found in the forms of complaints in similar malpractice actions as given in 3 Sutherland on Code Pleading, sec. 5226; Kinkead, Code Pleading, sec. 789.

It is never necessary to include in a hypothetical question all the facts previously proven. (17 Cyc. 242.)

What facts a hypothetical question must cover are determined by the sound discretion of the trial judge. (Kelly v. Perrault, 5 Idaho 221, 48 P. 45; Russ v. Wabash Western R. R. Co., 112 Mo. 45, 20 S.W. 472, 18 L. R. A. 823; 17 Cyc. 244.)

If the verdict is supported by substantial evidence, or if the testimony is materially conflicting, the judgment will not be disturbed. (Civ. Code, sec. 4824; Church v. Van Housen, 15 Idaho 249, 97 P. 36.)

The manner by which it may be ascertained whether a medical treatment or surgical operation has been skillfully done is by examination, on information derived from the patient, or from facts proved on trial, or by combinations of parts thereof, or both. (McClelland, Civil Malpractice, 303; Walsh v. Sayre, note 37 L. R. A., N. S., 738, subd. X; Barber v. Merriam, 11 Allen (Mass.), 322; Rogers on Expert Testimony, sec. 48.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an action brought by the plaintiff, an infant of about the age of twelve years, by his guardian ad litem, against the respondent, a physician practicing his profession at Gooding, Lincoln county, Idaho, for damages for an alleged act of malpractice in mistakenly diagnosing and treating an ailment of the leg. Said infant will hereafter be referred to as the respondent.

It is alleged in the complaint that on or about the 14th of November, 1911, the respondent was afflicted with a disease of his right leg and that appellant was called to attend and treat him for the disease, and that he carelessly failed to make a proper examination of the respondent, such as a physician of ordinary skill would have done, and pronounced the disease to be blood poisoning, when in fact it was a disease of the leg "at the right tibia," which disease and ailment has well known and peculiar signs and symptoms which an ordinary physician would detect, and that he continued negligently and unskillfully to treat the respondent for blood poisoning until about March 10, 1912. It is also alleged that the respondent suffered damage by injury to his health and constitution, great mental anguish and physical pain, and by being permanently deformed, crippled and weakened in body, to his damage in the sum of $ 5,000.

To this complaint a general and special demurrer was filed and overruled by the court. The answer of the defendant admitted the employment but denied the various acts and charges of negligence set forth in the complaint. The case was tried by the court with a jury, who rendered a verdict in favor of the respondent in the sum of $ 4,000. This appeal is from that judgment.

The action of the court in overruling the demurrer, the ruling of the court in the admission and rejection of certain evidence, and the giving of a certain instruction are assigned as error.

(1) First we will consider the assignment of error in regard to the action, of the court in overruling the demurrer.

It is alleged in the complaint that the respondent was afflicted with a "disease of the leg at the (right) tibia," and that "said disease or ailment has well known, peculiar signs and symptoms." One ground of said demurrer was that said allegation was uncertain, in that it does not appear from the complaint what was the name or nature of the alleged disease or what were the signs or symptoms of said disease which it is alleged are well known and peculiar. It is contended that in overruling said demurrer and not requiring the respondent to allege the name of the disease and the symptoms referred to, the appellant was placed at a great disadvantage on the trial, as he was entitled to know just what disease it was with which it is alleged the respondent was suffering; that he was entitled to be advised by the complaint with which one of the hundreds of well-known, different ailments or diseases it was claimed respondent was suffering, so as to be able to have his evidence ready in presenting his defense.

In this class of cases, in order to enable counsel to properly prepare a case for trial, it is usually necessary for them to make considerable study of the ailment or disease with which it is claimed a plaintiff was suffering, in order that they may properly defend their client. The danger to the defendant in such a case on a general allegation of a disease claimed to be a "well-known disease," without naming it, or giving its signs and symptoms, is certainly increased in a malpractice action over the ordinary...