Reber v. Herring

• Decision Date: 28 March 1887
• Docket Number: 163
• Citation: 115 Pa. 599,8 A. 830
• Parties: Reber v. Herring
• Court: Pennsylvania Supreme Court

8 A. 830

115 Pa. 599

Reber v. Herring

No. 163

Supreme Court of Pennsylvania

March 28, 1887

Argued February 28, 1887

ERROR to the Court of Common Pleas of Berks county: Of July Term 1885, No. 163.

Case by Peter Herring against Mayberry S. Reber, M.D., to recover damages for an alleged want of skill and care and for negligence and inattention as a physician in treating an ulcer of the plaintiff. Plea, not guilty.

The facts of the case as they appeared on the trial before HAGENMAN, J., sufficiently appear in the charge of the court and the opinion of the Supreme Court.

On the trial the plaintiff's counsel asked the following hypothetical questions:

Mr Reber: Q. When a patient, suffering from a fracture in the lower part of the leg, in the month of May or June, has the foot of the injured limb encased in a tight stocking covering the entire foot, excepting the sole, placed in a fracture box, with a cord fastened to both sides of the stocking at about the middle of the foot, with a weight attached to the other end of said cord, so as to keep the foot extended, the weight being a tin vessel containing about a quart of sand, and the entire leg in this condition resting mainly upon its heel for several weeks without being changed, or receiving any care or other attention at the heel, what, under such circumstances and conditions, would likely be the effect upon the heel?

Mr. Jones: Objected to by the defendant, as a supposititious case, and not supported by the evidence in this case. Objection overruled. Exception for defendant. (First assignment of error.)

Mr. Reber: Q. If maggots form in the heel under such circumstances, does it not show that it is unskillful and improper treatment to permit them to remain and increase in number until a part of the heel, as large as a man's thumb, is destroyed by them?

Mr. Jones: Objected to, by the defendant, as a supposititious case, not based on the evidence in this case, and an impossible thing. Objection overruled. Exception for defendant. (Fourth assignment of error.)

In the general charge the court instructed the jury as follows:

This action was brought by Peter Herring against Dr. Mayberry S. Reber to recover damages for unskillful and careless treatment. The evidence discloses that on the 27th of May, 1882, the plaintiff was at Shoemakersville, and there, or near by, met with an accident in which his leg was badly broken between the knee and the ankle. He was taken to the house of his son, and was there treated by the defendant, Dr. Reber. The bones were properly set; and there is no allegation of want of skill or care in the setting and treating of the fractured bones.

After some considerable time, the heel seems to have become very sore, and sloughed away pretty largely, and maggots were breeded. About six weeks after the accident the plaintiff was brought to Reading, where he was treated by Dr. Sterly, and after remaining here for about eleven weeks, he went to Lehigh county, where he at present lives. He still suffers, and, from the evidence, probably will suffer from the injury which his heel sustained, either from the treatment, or from the accident which happened to him at Shoemakersville.

There is no dispute in the testimony that the heel became exceedingly sore, and that there was considerable sloughing away of the heel. The question in dispute is whether the treatment which the doctor gave the patient was proper, -- was it that skill which a physician should bring to the care of his patient, or was it not? If it were not, -- if the injury of which the plaintiff complains were caused by a want of skill, a want of care on the part of the physician, then the defendant would be liable to the plaintiff for such damages as the jury would find him under the circumstances entitled to. On the other hand, if proper care and proper skill were bestowed -- such as a physician should bring to the treatment of such a case -- then the plaintiff would not be entitled to recover.

There is no dispute between counsel as to what the law is in a case of this kind. There is an implied contract of a surgeon or a physician who attends a patient, that he will use all known and reasonable means to accomplish the object for which he is called in to treat the patient; and that he will attend his patient carefully and diligently. His relation to his patient implies that he possesses, and will employ in the treatment of the case, such reasonable skill and diligence as are ordinarily exercised in his profession by a thoroughly educated surgeon or physician. This is the rule of law. And the question arises, did this defendant, when he was called in, use that skill and diligence which he was required to use? If he did, he is not responsible; if he did not, he is responsible.

The evidence of the plaintiff, who is an old gentleman, is that Dr. Reber was called in to attend him; that he fixed up his leg and put it in a box; that the doctor came nearly every day; he worked around it; cannot say if he opened; was lying on my back and in a few days it began to burn; told the doctor, who then placed something under it, but think it was too late; was sore; he got salve and some wash; he never looked at it particularly; put salve on; it got very sore, and maggots got in; had great pain, at times was not conscious; I told him I had pain; he looked in, and rubbed salve on it; told him how painful it was, a week or longer before it opened; my daughter waited on me. The daughter he referred to more especially is Mrs. Eck. She came up to see her father after this accident occurred, and was there on Decoration Day, which was the following Tuesday after the accident happened.

Mrs. Eck says she lived in Reading, and on Decoration Day, the 30th of May (the accident happened on the 27th), they put his leg in a box, on cotton, and the foot of the leg; they cut off the foot of a stocking and then sewed it up; I told the doctor that father wanted the box opened, he had so much pain (this was subsequent to the time). But after this leg was dressed and put in the box, several of the witnesses have testified that there were supports from the ceiling down, holding the box up; and that there was an extension applied. In other words, to this stocking which was around the foot there were strips or bandages of some kind sewed fast, or were around the foot, and there was a suspension of some kind from the ceiling, to the end of which a box of sand was put. Some of the witnesses speak of a tin can, containing about a quart, and that it was full of sand. Mrs. Eck then speaks of having gone up several times to see her father, and that while she was there, after this stocking was fitted to the foot, it was sewed up on both sides; and that this was never removed, as far as she knows, until some four weeks after the accident occurred. She says, I told the doctor that father wanted the box opened, he had so much pain; doctor said it was rheumatism at the time; the time he opened the box was four weeks after the accident; father said, it was like crawling, -- she used the German word which no one here seemed to be able to translate exactly, but the word crawling in English comes as nearly in meaning to the German word as I can now think of, [and when we opened the box the maggots began to roll out of the heel, it was all slimy at the heel; I said, "Is this the way my father is to be eaten up with worms?"] (Fifth assignment of error.)

The doctor said he knew there was worms at it; two weeks after, he was brought to my house, Reading; he was there eleven weeks.

This testimony is offered on the part of the plaintiff to show that there was want of care, -- of that ordinary skill and care which the doctor should have brought to his patient. These witnesses, and one or two others, speak of the heel having rested on the bottom of the box, or upon some hard substance. [You have the testimony of the doctors who were examined on the part of the plaintiff that if this heel had rested upon a hard substance, such as these witnesses spoke of, that inflammation would set in, and sloughing would follow; and that this inflammation and sloughing followed in consequence of the want of proper care and skill upon the part of the doctor.] (Second assignment of error.)

[In the questions that were put to the physicians examined, both on the part of the plaintiff and the defendant, in the statement of the facts which were embraced within the questions, the doctors were asked whether that was evidence of want of care, or whether it was not evidence of negligence. The doctors said it was.] (Third assignment of error.)

It is for the jury to say whether the evidence submitted on the part of the plaintiff establishes the fact that there was want of care, a want of skill upon the part of the defendant in his treating of this patient.

The defendant takes the stand himself, and you have heard what he says in regard to it; that he dressed the leg properly; that he removed the bandages every day, and washed the parts; that is, washed the leg, and washed it down over the heel. He does not remember whether there was a stocking or whether there were bandages around the foot. He says, however, whatever was there was removed by him, and that he washed the leg and the heel.

You have the testimony of Charles Herring, the son of the plaintiff, and at whose house the plaintiff was, and he gives us the same statement whilst he was there. He says that the heel as well as the leg rested upon a cushion or some soft substance.

Then Mrs. Herring is called, and she says much the same thing. She was there, and helped to attend and nurse the old gentleman and attended with the doctor to the dressing of the limb. She says that the limb was opened every day, and...