Pelky v. Palmer

• Decision Date: 02 June 1896
• Citation: 109 Mich. 561,67 N.W. 561
• Court: Michigan Supreme Court
• Parties: PELKY v. PALMER.

67 N.W. 561

109 Mich. 561

PELKY v. PALMER.

Supreme Court of Michigan

June 2, 1896

Error to circuit court, Jackson county; Erastus Peck, Judge.

Action by John A. Pelly against Frank E. Palmer. There was a judgment for defendant, and plaintiff brings error. Reversed.

Richard Price (Rienzi Loud, of counsel), for appellant.

A. M Culver and John Atkinson, for appellee.

HOOKER J.

The plaintiff was defeated in an action for malpractice, brought against a surgeon whom he employed to set his broken arm. He was unable to give the defendant information as to the cause of the injury, which he discovered while on his way home from Parma, a neighboring village. The defendant set his arm on Tuesday morning. On Thursday the plaintiff called at defendant's office in Albion and found him absent, and a card upon his door stating that he had gone to the state of Ohio. The plaintiff called again upon Saturday and complained to the defendant that his hand and arm hurt him. Defendant stated that he could not attend to him then as he had an urgent call to attend a person who had just had a stroke of paralysis, but he finally looked at his hand which plaintiff says was black underneath, and cut away some of the wood of the splint, and told him to come the next day, which he did. At that time, according to the plaintiff's version, the defendant pointed out lines of gangrene from the elbow to the wrist. He tied it up, and plaintiff called again Wednesday, according to defendant's instructions. Subsequently defendant called upon the plaintiff, and treated him for 15 days. The arm shrunk, and has troubled him since in ways described. Defendant's testimony is quite at variance with that of the plaintiff, but need not be stated.

The first question of importance arises over a request to charge that "the defendant was bound to exercise such skill care, and attention, in setting the arm of plaintiff and its treatment thereafter, as should be ordinarily exercised by a man of his profession under like circumstances." The court modified this, and instructed the jury that: "Now, Dr. Palmer was bound to exercise reasonable and ordinary care, skill, and diligence in his treatment of plaintiff's arm and injuries. That was the measure of his legal duty,-such care, skill, and diligence as physicians and surgeons in the neighborhood where he resided, and where he practiced his profession, and who are engaged in the same general line of practice, ordinarily have and exercise in like cases. And the defendant can be held to no higher or greater care, skill, and diligence than this. Now, I instruct you, with reference to this point, that ordinary skill implies ordinary judgment in the selection and adoption of methods and details of a surgeon's practice, and the defendant, Dr. Palmer, should not be held guilty of malpractice in this case, if, in these respects, he exercised the ordinary judgment of physicians in his neighborhood, even though it may be found that some other course would have been better, or would have prevented the unfortunate results here complained of. He could not be liable in this case for errors of judgment, unless you find, from the evidence, that he failed to exercise the ordinary judgment of physicians in his neighborhood in deciding upon and pursuing a course where different physicians of ordinary skill and judgment might disagree as to the practice to be pursued or the precise course to be adopted." We may reasonably take judicial notice that a surgeon's skill depends somewhat upon his experience and opportunity for witnessing operations, and it is to be expected that the degrees of surgical skill met with in different localities will be affected by these things. While a man with no skill, or inconsiderable skill, should not shelter himself behind the claim that he was the only practitioner in his neighborhood, and therefore that he was possessed of the ordinary skill required, although shown to possess less than the ordinary skill to be met with in such localities, or, as the books sometimes say, in the general neighborhood, it is true that the character of the locality has an important bearing upon the degree...