R. N. Baldwin v. J. H. Gaines

• Decision Date: 02 October 1917
• Citation: 102 A. 338,92 Vt. 61
• Parties: R. N. BALDWIN v. J. H. GAINES
• Court: Vermont Supreme Court

102 A. 338

92 Vt. 61

R. N. BALDWIN v. J. H. GAINES

Supreme Court of Vermont

October 2, 1917

May Term, 1917.

CASE against a physician for malpractice in setting and caring for a fractured femur. Plea, the general issue. Trial by jury at the September Term, 1916, Orleans County, Stanton, J presiding. Verdict and judgment for plaintiff. Defendant excepted.

Judgment reversed as to damages, and cause remanded for retrial on that question only.

J W. Redmond and Aaron H. Grout for defendant.

Frank D. Thompson, J. Rolf Searles and E. S. Jones for plaintiff.

Present WATSON, C. J., HASELTON, POWERS, TAYLOR, and MILES, JJ.

OPINION

POWERS

This is an action against a physician for malpractice. There was evidence tending to show that the plaintiff was in an automobile accident and suffered a simple, oblique fracture of the middle third of the right femur. He was taken to a hotel in Newport, where he was attended by the defendant and another physician, Dr. Blanchard. These two doctors, with other assistance, set the leg, making use of a long splint, called a Liston splint. Both doctors attended the plaintiff for a time, and the defendant attended him until he was moved to his home in Irasburgh, on December 20, 1913, which was about three weeks after the accident. Two days after this removal, the defendant visited the plaintiff professionally at the latter's home, and once later saw him when he was at Irasburgh to visit another patient. On January 15, 1914, Dr. Templeton, who was then caring for the plaintiff, removed the splint and found the injured leg two and one-fourth inches shorter than the other one. This condition is permanent, and the ends of the broken bone overlap, so that there is an angular deformity at the point of fracture. This result causes pain and discomfort, and interferes with his ability to handle his business.

The plaintiff called the defendant to the stand and examined him as a witness. When he was questioned by his own counsel, he was asked what medical authorities prescribed the method of reduction and treatment used by him on the plaintiff; and, without objection he replied that Walsham was such an authority. Thereupon his counsel produced a book entitled "Surgery, its Theory and Practice," by the author named, and asked the witness if the book, on pages 445 and 446, exactly described the method so used by him. This question was excluded and the defendant excepted. The exclusion was correct. That the contents of the book were not evidence of the facts therein stated is shown by Rogers v. State, 77 Vt. 454, 61 A. 489, and many other cases outside the State. And it is improper, in the circumstances here existing, to ask a medical expert if he is acquainted with a certain book, and calling his attention to a particular paragraph, to ask a question in the language of the book, and thus indirectly introduce such passage in evidence. Marshall v. Brown, 50 Mich. 148, 15 N.W. 55; In re Mason, 60 Hun 46, 14 N.Y.S. 434; State v. Coleman, 20 S.C. 441; People v. Goldenson, 76 Cal. 328, 19 P. 161; St. Louis, etc. R. Co. v. Jones, (Tex.) 14 S.W. 309; Lilley v. Parkinson, 91 Cal. 655, 27 P. 1091. See Rudd v. Rounds, 64 Vt. 432, 25 A. 438. The suggestion that the evidence would corroborate the witness is without force. It is not permissible to reinforce a witness in this way. Gallagher v. Market St. R. Co., 67 Cal. 13, 6 P. 869, 56 Am. Rep. 713; Fox v. Peninsular, etc. Works, 84 Mich. 676, 48 N.W. 203; Davis v. State, 38 Md. 15.

There was no error in the cross examination of Dr. Stockwell. He was an expert witness for the defendant, and in his direct testimony, referring to the method used by the defendant, asserted that it was a treatment recognized by the best authorities. In cross examination he was very properly asked to name the authorities thus referred to (Chicago Union Trac. Co. v. Ertrachter, 228 Ill. 114, 81 N.E. 816) and replied that Walsham was the one he most relied upon, and that Stimson spoke of this method. Thereupon, the witness was asked if Stimson did not say that traction by weight and pulley or elastic traction was almost exclusively employed in such cases; and, subject to exception, the witness replied in effect, that he did. It is apparent that in his first statement, the witness intended to have the jury understand that Stimson approved the Liston method of treatment. It was, therefore, proper cross examination, to show by the book itself that the author did not approve such treatment. While it was not permissible to read the book into the case for the mere purpose of showing that the author disagreed with the witness. ( Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 679; Hall v. Murdock, 114 Mich. 233, 72 N.W. 150; State v. Brunette, 28 N.D. 539, 150 N.W. 271, Ann. Cas. 1916E, 340), it was permissible to contradict and discredit him by showing that the book did not warrant his statement. Gallagher v. Market St. R. R. Co., 67 Cal. 13, 6 P. 869, 51 Am. Rep. 680; Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 679; People v. Millard, 53 Mich. 63, 18 N.W. 562; Ripon v. Bittel, 30 Wis. 614; Clark v. Com., 111 Ky. 443, 63 S.W. 740.

Dr. Young, another expert for the defendant, testified in direct examination that the Liston method was well recognized by the authorities. He also testified in cross examination that he had observed that there was usually a great deal of pain from the use of Buck's extension. Thereupon, counsel for the plaintiff asked the witness if Scudder on Fractures, a recognized authority, did not say that as a general rule the use of Buck's extension was followed by very little pain; and he was shown the book to refresh his recollection. This was objected to by the defendant, but the objection was overruled and the answer taken subject to exception. This was error. It was not competent to contradict the witness in this way. As to the matter of the pain incident to the use of Buck's extension, this witness spoke of his experience and observation only, and made no reference, directly or indirectly to Scudder or any other medical authority. His standing was entirely different from that of Dr. Stockwell, who spoke wholly of what the authorities approved. And right there lies the vital distinction. When an expert witness testifies to his own experience and observation only, authorities cannot be read into the case, either directly or indirectly in his cross examination. Enos v. St. Paul F. & M. Ins. Co., 4 S.D. 639, 57 N.W. 919, 46 Am. St. Rep. 796; State v. Brunette, 28 N.D. 539, 150 N.W. 271, Ann. Cas. 1916E, 340. But when he testifies as to what the authorities show, or bases an opinion in whole or in part upon what they advocate, the books may be used to contradict the witness and to discredit his testimony, though he mentions no particular author. State v. Brunette, 28 N.D. 539, 150 N.W. 271, Ann. Cas. 1916E, 340; Wittenberg v. Onsgard, 78 Minn. 342, 81 N.W. 14, 47 L.R.A. 141.

Just when and how far these books can be used to test the qualifications of the witness, we do not now inquire as the transcript shows that this ground of admissibility, if otherwise available, was excluded by what was said and done below. But this error is not made to appear harmful. When the answer of the witness was complete, it appeared that all the author said was that "ordinarily there would be little or no pain associated with the repair of the fracture," without a word about any particular method or apparatus. The defendant had already admitted that Scudder made this statement, and under any rule and in any view the error was harmless.

Dr. Templeton, testifying for the plaintiff as an expert, said that when a leg was put up as this one was, and severe pain continued at the point of fracture, it indicated that the dressings were too tight at some place, or the parts were not in apposition. So far no objection was made. He was then asked what should be done in a case like that, and subject to exception replied that a careful examination of the injured parts should be made. We need take no time with this exception. It is so obvious from the testimony that such an examination should be made in the circumstances stated that the answer could not have prejudiced the defendant.

During the cross examination of Dr. Templeton, he testified that the books approved of various methods of securing the requisite extension, counter extension and fixation in such fractures as here involved; but that he had never observed an approval of the use of a splint of the character of the one employed by the defendant, though he had read of it in obsolete works. He was then shown a copy of Stimson on Fractures, published in 1900, and he testified that he never heard of it before and knew nothing about it as an authority, but should not call it obsolete. He was then asked if he noticed that among the dressings therein prescribed was a side or hip splint, usually with traction. This question being objected to was excluded, and the defendant excepted.

The object of this inquiry, as stated by counsel and as shown by a formal offer, was to show the fact that the author approved this kind of a splint. But later on in the trial, the passage referred to was read to Dr. Longe, and all the benefit therefrom asked for by counsel was obtained. Thus the error, if any, was rendered harmless. Livingston Mfg. Co. v. Rizzi Bros., 86 Vt. 419, 85 A. 912.

A sister of the plaintiff, who took care of him a part of the time during his disability, testified that she observed that the injured leg was shorter than the other. In cross examination she was asked to state how long it was after she began taking care of him that she made this discovery, and replied that she did not remember. She was asked if it was within a...