Reinhold v. Spencer, 6049

• Citation: 26 P.2d 796,53 Idaho 688
• Decision Date: 03 November 1933
• Docket Number: 6049
• Parties: HENRY F. REINHOLD, Respondent, v. H. D. SPENCER, Appellant
• Court: United States State Supreme Court of Idaho

26 P.2d 796

53 Idaho 688

HENRY F. REINHOLD, Respondent, v. H. D. SPENCER, Appellant

No. 6049

Supreme Court of Idaho

November 3, 1933

PHYSICIANS AND SURGEONS - MALPRACTICE - NEGLIGENCE-EVIDENCE-TRIAL-INSTRUCTIONS-EXCESSIVE DAMAGES.

1. Lay testimony of plaintiff and others that after hypodermic needle was left in plaintiff's chest, patient suffered severe pain in chest in reaching or stooping and had difficulty in performing manual labor, held admissible in malpractice case.

2. Where expert testimony showed that hypodermic needle left in chest would cause discomfort and pain, lay testimony as to plaintiff's suffering severe pain in chest and his difficulty in working not objectionable in malpractice action on ground of uncertainty as to cause.

3. One suing for malpractice, on issue of causation, need only show chain of circumstances from which ultimate fact is reasonably and naturally inferable.

4. X-ray plates made by or in presence and under supervision of physician held admissible in malpractice case, where physician testified to accuracy of plates.

5. In malpractice case, admission of expert testimony as to probability that hypodermic needle left in patient's chest might break and become dislodged, and that it was difficult to state amount of injury which might be done, held not reversible error.

6. Expert witnesses may testify as to result which may reasonably be expected to follow injury.

7. Physician's answer to question as to probability of breaking of hypodermic needle lodged in body held not prejudicial by reason of reference in question to disclosure of authorities upon subject.

8. Mortality tables are generally admissible to show life expectancy of person in normal health.

9. That person had partial disability rating due to injury to leg and operations thereon held not to render mortality tables inadmissible to prove life expectancy where there was no showing of impairment calculated to shorten life.

10. Reviewing court is bound by jury's finding where supported by sufficient competent evidence.

11. Evidence of surgeon's failure to remove hypodermic needle from patient's chest in performing operation held sufficient to make issue for jury of negligence in malpractice case.

12. Failure of surgeon to remove foreign object from patient's body during operation is at least evidence of negligence, and sufficient for submission to jury without expert testimony.

13. Refusal of nonsuit or directed verdict for defendant is proper where sufficient competent evidence is introduced to support verdict for plaintiff.

14. Refusal of certain instructions is not error where instructions as a whole are fair and responsive to issues and evidence.

15. Damages for suffering and loss of income due to injury must be estimated solely by jury.

16. Jury's assessment of damages for injury cannot be disturbed in absence of showing of bias or prejudice or irregularity in arriving at amount.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action for malpractice. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Merrill & Merrill, for Appellant.

Mortality tables are inadmissible in evidence for the purpose of proving the life expectancy of a plaintiff who was suffering from a partial physical disability, particularly where there is no showing as to the effect of such disability upon life. (Norris v. Detroit United Ry. Co., 193 Mich. 578 160 N.W. 574; Denman v. Johnston, 85 Mich. 387, 48 N.W. 565.)

It is error to permit an expert witness for the plaintiff on direct examination to state what the "authorities disclose" on a particular subject. (Ingwersen v Carr & Brannon, 180 Iowa 988, 164 N.W. 217; State v Blackburn, 136 Iowa 743, 114 N.W. 531.)

In an action against a physician or surgeon for malpractice, the question of whether or not he was negligent must be proved by expert testimony. (Ruble v. Busby, 27 Idaho 486, 149 P. 722, Ann. Cas. 1917D, 665; Swanson v. Wasson, 45 Idaho 309, 262 P. 147; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642.)

Kenneth Mackenzie and Chase A. Clark, for Respondent.

In an action against a physician or surgeon for malpractice, it is not necessary for plaintiff to have expert testimony to sustain his claim of negligence in a malpractice case, if there is other evidence to prove negligence and cause of the injury complained of. (Fleenor v. Oregon Short Line R. Co., 16 Idaho 781, 102 P. 987; Ruble v. Busby, 27 Idaho 486, 149 P. 722, Ann. Cas. 1917D, 664.)

"Before a verdict can be set aside on the ground of 'excessive damages, appearing to be given under the influence of passion or prejudice,' such fact must be made clearly to appear to the trial judge." (Short v. Boise Valley Traction Co., 38 Idaho 593, 225 P. 398; Ellis v. Ashton & St. Anthony Power Co., 41 Idaho 106, 238 P. 517; Cox v. Northwestern Stage Co., 1 Idaho 376.)

OPINION

PER CURIAM.

Appellant, a physician and surgeon, undertook to treat respondent, who was suffering with acute pneumonia, and in the course of treatment it became necessary to perform an operation known as "tapping the lungs." Appellant, assisted by a nurse, performed the operation, using novocaine by means of a hypodermic syringe to deaden the pain. A small opening was made in the pleural cavity of respondent to permit drainage of pus accumulated therein. The usual treatment seemingly was followed by inserting a tube into the cavity through the small opening to provide drainage. The operation was scientifically and properly performed and the wound healed normally. An X-ray examination, conducted at the Veteran's hospital, later disclosed a hypodermic needle lodged within the thoracic cavity of respondent. An effort by surgeons at the Veteran's hospital to remove the needle was abandoned as being too dangerous to respondent's life. Subsequent to the disclosure of the hypodermic needle respondent brought this action charging appellant with carelessly, negligently and unskillfully handling a hypodermic needle inserted in the thoracic cavity of respondent in such a manner as to allow the said needle to become detached from said syringe, and knowingly, carelessly, negligently and unskillfully leaving said needle in the thoracic cavity of respondent's body, and carelessly, negligently and unskillfully failing to remove the same, and carelessly and negligently failing to inform respondent of his condition and discharging him as cured. From a judgment for respondent and an order overruling a motion for new trial this appeal is prosecuted.

Numerous errors are assigned which we will undertake to dispose of in the order set forth in appellant's brief.

Assignments of error one, two, three and four, involving the admission over objection of certain testimony of respondent and other lay witnesses describing or touching alleged pain experienced by respondent subsequent to the operation and attributed thereto, and the refusal of the court to strike such testimony, may be grouped, discussed and considered together. It is appellant's contention that there was no evidence showing or tending to show that the pain alleged to have been suffered by respondent resulted from any act of negligence of appellant, that no foundation was laid for the receipt of such testimony, and that whether the presence of the needle caused such pain as described is a matter which should have been proved by expert testimony. There is expert testimony that with movement of respondent's body--bending forward or sideways--the point of the needle would cause discomfort and some pain, the amount of which the expert witness could not state, and that his earning powers are limited because of the presence of the needle. It is not seriously controverted that respondent did not experience such pain, as he described, prior to the operation, and there is ample evidence that subsequent to the operation he did suffer constant pain in his chest in and about the region where the hypodermic needle was located. Likewise, there is evidence that prior to the operation respondent had performed and was able to perform ordinary manual labor. Respondent testified, among other things, that whenever he reached up with his arms, stooped over, took a deep breath, etc., he suffered severe pain "right in my chest." Other witnesses, over objection, testified that respondent after the operation had difficulty performing manual labor, was short-winded, and did not seem to have strength "to do a man's labor like he should have shown," and that he had difficulty in caring for cattle at the Blackfoot fair, in that "whenever he had to bend over or wrestle around with any of them, it hurt him and he couldn't do it." There is evidence, and the jury found, that appellant was responsible for the hypodermic needle finding its way into respondent's chest. It is unnecessary to recite all of the testimony given on this point, however from a careful consideration of the evidence we are unable to agree with the contention that it did not show, or tend to show, that the pain suffered by respondent immediately resulted from the hypodermic needle left by appellant in respondent's chest at the time of the operation, but are of the opinion that the testimony complained of was not only admissible as tending to show the amount or extent of the pain suffered by respondent and the effect upon respondent's ability to perform manual labor, which the expert witness was unable to state (17 C. J. 1031, sec. 326), but likewise, under the following authorities was not erroneously admitted: Walter v. England, 133 Cal.App. 676, 24 P.2d 930; Barham v. Widing, 210 Cal. 206, 291 P. 173; Nelson v. Parker, 104 Cal.App. 770, 286 P. 1078; 10 Cal. Jur. 978. ...