Quinn v. Higgins

• Decision Date: 22 September 1885
• Citation: 24 N.W. 482,63 Wis. 664
• Parties: QUINN v. HIGGINS.
• Court: Wisconsin Supreme Court

63 Wis. 664

24 N.W. 482

QUINN

v.HIGGINS.

Supreme Court of Wisconsin.

Filed September 22, 1885.

Appeal from circuit court, Columbia county.Bardeen & Mylrea and G. W. Cate, for respondent, James Quinn.

Silverthorn, Hurley & Ryan, for appellant, S. G. Higgins.

TAYLOR, J.

This is an action brought by the respondent to recover damages of the defendant for malpractice as a surgeon in setting and caring for a broken leg of the respondent. On the trial in the circuit court the respondent recovered over $1,600 damages. Judgment was entered upon such verdict, and the defendant appealed to this court. A motion for a new trial was made in the court below, and denied. One of the grounds of such motion was that the verdict was unsupported by the evidence. The denial of the motion on that ground is assigned as one of the errors relied upon by the appellant in this court. This point was pressed upon this court by the learned counsel for the appellant, in his oral argument, and the opinion of this court was asked by the learned counsel upon that point. As we have come to the conclusion that the judgment in this case must be reversed for errors occurring on the trial in the exclusion of evidence offered by the appellant, and as it is probable that there will be a new trial of the case, we do not feel called upon to pass upon the whole merits of the case, as requested by the learned counsel for the appellant.

The question of negligence and carelessness on the part of the surgeon in the treatment he gave the plaintiff's leg, while it is one which the jury must necessarily determine upon the whole evidence in the case, is still a question which must be determined mainly upon expert evidence. Certainly the claimed misconduct of the surgeon is not so flagrant that a man entirely ignorant of surgery can form an intelligent judgment as to the propriety or impropriety of the treatment given by the defendant, unaided by evidence of men skilled in surgery, and having superior knowledge as to what treatment should have been given to the broken leg under all the circumstances. The defendant was therefore entitled to show, if he could, by witnesses having superior knowledge and skill in surgery, that the treatment he gave the plaintiff's leg was such as a surgeon of ordinary knowledge and skill in his profession would and ought to have given.

The exclusion of any material evidence of the expert witnesses offered by the defendant which had a direct tendency to show that his treatment was proper, and such as a surgeon of ordinary learning and skill in his profession would have adopted in the case, must necessarily prejudice the defendant.

The complaint made by the plaintiff was that the defendant had so carelessly and negligently treated and cared for his broken limb that the bones had not united at the fracture in the ordinary way by the usual bony substance, but that they were “held together by a fibrous ligament, or connective tissue, forming a false joint at the seat of fracture,” and that the leg was in this condition long after the time had elapsed when fractures of that kind ordinarily, with proper treatment, would have been firmly joined with a bony substance. The fact that this was the condition of the bones of the plaintiff's leg a considerable length of time after the bone would in ordinary cases have been healed under proper treatment, was relied upon as evidence of improper treatment more than any positive proofs showing that the actual treatment given by the defendant was faulty, careless, and improper.

Among the other evidence given by the respondent, the deposition of Dr. Senn, of Milwaukee, who appears to be a skillful and learned surgeon, was read in evidence, and in his testimony the doctor describes the condition of the leg when he was called to prescribe for the plaintiff, and he states that this ligamentous connection had taken place at the place of fracture, making the false joint when he first examined the leg. On the cross-examination the defendant questioned the witness as to the causes which might result in this ligamentous union instead of the usual bony union; and for the purpose of showing, if he could, that the ligamentous union was not in all cases the result of bad treatment on the part of the attending surgeon, or other attendants, or even improper conduct on the part of the patient himself, he propounded this question: “Non-union in compound fractures may take place in cases of the best treatment, sometimes?” This question was objected to by the plaintiff, and the objection was sustained by the court. The answer given to it, and found in the deposition, was not permitted to be read to the jury. The answer was as follows: “Most certainly; not only in compound, but in simple fractures, and produce a condition similar to the one found in Mr. Quinn.” The objection to the question was “that it was leading, and not proper cross-examination.”

We are very clear that the objection should have been overruled. The witness had testified as to the condition of the leg when he first saw and examined it. The condition in which he described the limb was undoubtedly shown on the part of the plaintiff as tending to show improper treatment on the part of the defendant, and it seems to us very clear that the defendant had the right on the cross-examination of the witness to disprove the inference of negligence on his part sought to be drawn from its condition, by showing that such condition might, and often did, result from causes other than negligence on the part of the attending surgeon, and that it did often result under the best of care. The evidence was certainly competent either as direct or cross-examination,...