Reed v. Church, Record No. 2189.

• Decision Date: 08 April 1940
• Docket Number: Record No. 2189.
• Citation: 175 Va. 284
• Parties: JAMES W. REED v. ALBERT T. CHURCH.
• Court: Virginia Supreme Court

Page 284

175 Va. 284

JAMES W. REED v. ALBERT T. CHURCH.

Record No. 2189.

Supreme Court of Virginia, Richmond.

April 8, 1940.

Present, All the Justices.

1. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Application of Rule Concerning Two Schools of Medical Opinion — Case at Bar. — The instant case was an action for injuries alleged to have resulted to plaintiff's eyes from improper medical treatment by defendant, a physician. Defendant treated plaintiff with tryparsamide, a drug used in the treatment of cerebro-spinal syphilis, and according to the testimony of plaintiff continued this treatment even after plaintiff informed him that it was affecting his eyes, but defendant stated that he ceased the treatment after two injections, and directed plaintiff to go to an eye specialist. Defendant contended that there were two schools of medical opinion as to the continued use of tryparsamide after the discovery of optical disturbances, one suggesting the continued use of the drug, and the other its discontinuance when complaint is made of this trouble. He, therefore, contended that if he followed either one or the other theory, he was not negligent.

Held: That the rule that where there are two schools of thought in medical practice, if the practitioner followed one he could not be negligent, did not apply since defendant was committed to the second school of medical opinion by his testimony that he discontinued the treatment on the appearance of the eye disturbance. In view of the contradiction of defendant by plaintiff the question the jury had to determine did not relate to the two-theories rule, but related to whether defendant properly and carefully followed the branch of medical opinion which he had adopted in the case.

2. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Knowledge and Ability Necessary to Effective Practice. — A physician holds himself out as possessing the knowledge and ability necessary to the effective practice of medicine.

3. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Implied Representations. — A physician impliedly represents that he is keeping abreast of the literature and that he has adopted those techniques which have become standard in his line of practice.

4. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Not an Insurer. — A physician is not an insurer, nor is he held to the highest degree of care known to his profession.

5. PHYSICIANS AND SURGEONS — Negligence and Malpractice — No Presumption from Failure to Effect Cure. — The mere fact that a physician has failed to effect a cure or that his treatment has been deleterious will not raise a presumption of his negligence.

6. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Degree of Skill and Diligence Required. — A physician must exhibit only that degree of skill and diligence employed by the ordinary, prudent practitioner in his field and community, or in similar communities, at the time.

7. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Negligence Established Only by Expert Testimony. — Negligent practice of a physician in the diagnosis and treatment of a patient can be established only by expert testimony.

8. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Proof Leaving Two Equal Probabilities. — In an action against a physician for malpractice, if the proof leaves it equally probable that a bad result may have been due to a cause for which the defendant was not responsible as to a cause for which he was responsible the plaintiff cannot recover.

9. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Presumptions and Burden of Proof — Proximate Cause. — In an action against a physician for malpractice, as in other negligence actions, the plaintiff must sustain the burden of showing that the negligent acts complained of constituted the proximate cause of his injury.

10. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Proof Necessary to Establish Liability — Case at Bar. — The instant case was an action for injuries alleged the have resulted to plaintiff's eyes from improper medical treatment by defendant, a physician. Defendant treated plaintiff with tryparsamide, a drug used for patients suffering from cerebrospinal syphilis, and plaintiff testified that eleven successive injections were given him at intervals of four or five days, even though after the third injection he complained that his eyes were affected.

Held: That to establish liability on defendant's part there must have been testimony tending to prove that the injections were the proximate cause of the injury to the eyes and that such injections were given in contravention of the rules of good practice in the community, and if it were equally probable that syphilis caused the loss of vision, plaintiff's case must fail.

11. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Questions of Law and Fact — Proximate Cause — Case at Bar. — The instant case was an action for injuries alleged to have resulted to plaintiff's eyes from improper medical treatment by defendant, a physician. Defendant treated plaintiff with tryparsamide, a drug used for patients suffering from cerebro-spinal syphilis, and plaintiff testified that eleven successive injections were given him at intervals of four or five days, even though after the third injection he complained that his eyes were affected.

Held: That whether the injections were the proximate cause of the loss of vision, or whether it was equally probable that syphilis caused the loss of vision were questions for the jury.

12. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Scope of Review. — In an action for injuries to plaintiff's eyes caused by alleged negligent treatment by a physician, where the jury returned a verdict for the plaintiff, the Supreme Court of Appeals was limited to an examination of the evidence, and a determination of whether it was sufficient to support the finding that the treatment used by defendant was the proximate cause of the eye trouble.

13. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Evidence Justifying Finding that Drug Was Proximate Cause of Blindness — Case at Bar. — The instant case was an action against a physician for alleged negligence causing injury to plaintiff's eyes. The evidence showed that defendant treated plaintiff with tryparsamide, a drug used in the treatment of cerebro-spinal syphilis, and that after several treatments plaintiff complained of the effect on his eyes, but defendant continued the use of the drug. It appeared that no amount of clinical research could determine whether syphilis caused the trouble to the eyes, or whether the treatment was the proximate cause, but plaintiff had once had severe syphilitic trouble, and had been given the most efficacious treatment given at that time, and had been told that he was cured. He had no recurrence of syphilis symptoms for fourteen years and his eyes had been equal, during that period, to the most exacting and minute work. Prior to the treatment of which he had complained, he had fainted and, despite a negative Wassermann, defendant treated him for syphilis with a drug known to the physician to produce severe ocular disorders unless carefully administered. Plaintiff complained of severe visual disturbances, but in spite of this the physician continued the injections of the drug, and, despite the physician's reassurances, plaintiff became virtually blind.

Held: That the jury was justified in finding that the injury to the eyes was caused by the administering of the drug, and that this was the proximate cause of plaintiff's blindness.

14. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Admission in Evidence of Pamphlet Accompanying Drug — Case at Bar. — In the instant case, an action for injuries to plaintiff's eyes caused by the alleged negligence of defendant, a physician, the evidence showed that defendant treated plaintiff with tryparsamide injections, and continued such treatment even after plaintiff complained that it was affecting his vision. A folder which accompanied the drug used was introduced in evidence by plaintiff. It was prepared by the company which made the drug, and plainly set forth that the use of the drug should be immediately discontinued when visual difficulty occurred. The pamphlet was objected to on the ground that it was hearsay evidence, but defendant had testified that he followed closely the schedule that was outlined by the pamphlet, and the jury was instructed that they could consider the pamphlet for the sole purpose of showing that defendant had knowledge of the information contained in the pamphlet, and that it was not evidence to show that it was improper to give the drug without having an oculist examine the eyes.

Held: That under the circumstances defendant was not prejudiced by the introduction of the pamphlet, and if error was committed in admitting the pamphlet, the instruction rendered it harmless.

15. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Necessity for Expert Evidence. — Whether the measure or standard of medical care which should be exercised has been exercised by a physician can only be decided upon expert medical testimony.

16. PHYSICIANS AND SURGEONS — Negligence and Malpractice — Instructions — Consideration of Non-Medical Testimony — Case at Bar. — In the instant case, an action for injury to plaintiff's eyes caused by the alleged negligence of defendant, a physician, the jury was instructed that whether the measure or standard of medical care had been exercised could only be decided upon expert medical testimony, and the jury was instructed also that in considering and weighing the testimony of experts it was their duty to consider and weigh the same in connection with all other evidence in the case and all facts and circumstances established by the preponderance of the evidence, and that they should apply sound judgment to the sifting and weighing of the...