Robinson v. Crotwell

• Decision Date: 21 December 1911
• Citation: 57 So. 23,175 Ala. 194
• Parties: ROBINSON v. CROTWELL.
• Court: Alabama Supreme Court

57 So. 23

175 Ala. 194

ROBINSON v. CROTWELL.

Supreme Court of Alabama

December 21, 1911

Appeal from City Court of Bessemer; J. C. B. Gwin, Judge.

Action by William T. Crotwell against Thomas F. Robinson for malpractice. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The counts referred to in the complaint as having gone to the jury are as follows:

"(3) The plaintiff claims of the defendant $50,000 damages, for that heretofore, to wit, in March, 1909, defendant held himself out as a surgeon, and as such undertook for hire and reward to perform a particular operation upon the plaintiff, and by means of the confidence engendered by said operation, and defendant's undertaking to perform said operation, plaintiff subjected himself to defendant's control, and defendant, on the 8th day of March, 1909, wrongfully performed another and different operation upon the plaintiff, without the plaintiff's consent, and as a proximate consequence thereof plaintiff has suffered the injuries and damages as set out in the first count.

"(4) Plaintiff claims of the defendant $50,000 damages, for that heretofore, to wit, on the 8th day of March, 1909 defendant wrongfully and without the consent of the plaintiff removed a large part of plaintiff's skull and as a proximate consequence thereof plaintiff suffered the injuries and damages set out in the first count of the complaint.

"(5) Plaintiff claims of defendant $50,000 damages, for that heretofore, to wit, on the 8th day of March, 1909, defendant held himself out as a practicing surgeon, and together with another or other physicians or surgeons undertook to diagnose and treat plaintiff surgically for hire and reward; that it then and there became and was the duty of the defendant to exercise due care, skill, and diligence in the diagnosis and treatment of plaintiff, but, notwithstanding said duty, defendant so negligently conducted himself in that regard that as a proximate consequence thereof plaintiff was unskillfully diagnosed or treated, and as a proximate consequence thereof suffered the injuries complained of in the first count."

The following charges were given at the instance of the plaintiff:

"(1) If a physician or surgeon has taken charge of a patient, and undertaken for reward to furnish hospital and apparatus for the operation, it is his duty to exercise proper care and diligence to furnish reasonably prudent and proper facilities, and he may be liable for any failure so to do, even though he is otherwise careful and competent.

"(2) No matter how skillful or careful a physician or surgeon may be, he has no right to perform a dangerous operation upon an adult person of sound mind without his consent, even if the patient has consented to another and different operation."

"(4) Consent to the performance of one kind of operation would not be consent to the performance of another and different operation."

"(6) No matter how skillful a physician or surgeon may be, he is responsible for his negligence, if any."

The following charges were refused to the defendant:

"(4) The court charges the jury that there can be no recovery in this case for any negligence on the part of the defendant that falls short of gross negligence.

"(5) The court charges the jury that, unless they are reasonably satisfied from the evidence in this case that the defendant was guilty of gross negligence in his treatment of or his efforts to cure the disease of plaintiff, or in his diagnosis of the disease of the plaintiff, there can be no recovery."

"(9) The court charges the jury that a physician or surgeon is bound to give his patient the benefit of his best judgment, but is not liable for a mere error of judgment."

"(21) The court charges the jury that there can be no recovery in this case for the injuries sustained by the plaintiff by reason of the disease with which he was afflicted."

"(29) While the responsibility of the medical practitioner and surgeon is great, and care appropriate should be observed, in the exercise of his professional employment, when his errors are of judgment only, if he keeps within recognized and approved methods, he is not liable for their consequences."

"(31) The court charges the jury that the burden of proof is upon the plaintiff in this case to show that there was a want of care, skill, and diligence, and also the burden is on the plaintiff to show that the injury complained of was a proximate result of such want of care, skill, and diligence."

"(42) The court charges the jury that a physician or surgeon incurs no liability where the natural temperament or physical weakness of the patient, of which he is ignorant, contributes to bring about an injury which could not be foreseen as a result of the course of treatment.

"(43) The court charges the jury that, if they find from the evidence in this case that the injuries complained of were a proximate result of the plaintiff's physical inability to stand the operation, then I charge you that the verdict should be for the defendant."

"(45) The court charges the jury that if they find from the evidence in this case that the defendant did undertake to perform the operation in question, or to cause the same to be performed, and further find that in carrying out the undertaking he procured the services of Dr. E. M. Robinson, and you further find that Dr. E. M. Robinson was at the time doing an independent business as a physician, not connected with the defendant, and that he was a regularly licensed and practicing physician and surgeon under the laws of this state, and you should further find that the injuries complained of were the result of some act of omission of the said Dr. E. M. Robinson, then you should find for the defendant."

"(51) The court charges the jury that a surgeon has the legal right to advise such an operation as in his judgment the exigencies of the case demand, and if the patient consents to such an operation the surgeon has the legal right to proceed with such operation, and cannot be held liable for the proper performance of such operation."

"(56) The court charges the jury that the burden is on the plaintiff to reasonably satisfy you from the evidence in this case that he did not give his consent for the very operation in question, and also to reasonably satisfy you from the evidence that he was incapacitated to consent to the operation."

"(59) The court charges the jury that, if a physician is called to treat a patient, it matters not with what disease he is suffering, or the nature of the treatment needed, the physician may treat such patient with such treatment to the best of his ability, and he cannot be held liable for undertaking such treatment and doing it as best he can."

"(44) The court instructs the jury that they are necessarily bound, independent of every other consideration, to adopt the testimony of the physicians and surgeons who have testified in this case, and the text-books introduced in evidence, when they come to determine whether, on the facts in this case, this defendant has treated the case in question in the proper form and by the use of proper appliances."

"(57) I charge you, gentlemen of the jury, that if you find from the evidence in this case that the plaintiff was carried to the hospital for a slight operation and that after he was there the operation performed on him was agreed on between plaintiff and the doctors, then I charge you that there can be no recovery in this case for the proper performance of said operation."

"(38) The court charges the jury that if, after considering all the evidence in this case, they find that their minds are in an unsettled state as to whether the defendant is liable or not, then your verdict should be for the defendant."

James Trotter and Estes, Jones & Welch, for appellant.

Bowman, Harsh & Beddow, for appellee.

SAYRE J.

For some years plaintiff had been treated by the defendant and other medical men for tic douloureux, an exceedingly painful disease of the nerve which supplies the face with sensation. In keeping with the general, if not universal experience, medicaments had been of no avail. Defendant, who kept a hospital, advised an operation, and, after consulting with plaintiff, procured his brother, who made a specialty of surgical cases, to perform the operation for a compensation agreed upon, and to be paid by the plaintiff. Doctor E. M. Robinson, defendant's brother, was not interested in the hospital, nor had any business connection with the defendant. The operation was not successful in relieving the suffering caused by plaintiff's specific disease, and, besides, left him with some disfigurement, and without the protection afforded the brain by the hard plate of his skull over an area of 2 1/2 by 1 1/2 inches. Afterwards plaintiff brought this suit for malpractice, and recovered a verdict and judgment for a good round sum. Defendant appeals.

Counts 1 and 2 were eliminated by judgment on demurrer. The remaining counts, upon which the case went to the jury, proceeded upon two theories: (1) That defendant performed, or caused to be performed, upon plaintiff a serious operation, without his consent; (2) that defendant unskillfully or negligently diagnosed or treated plaintiff's ailment. Defendant's alleged default in each case is averred to have caused grave injury to plaintiff in particulars which are set out. We do not find that the demurrers pointed out any defect in the complaint on which the case was tried.

Many assignments of error are based upon the giving and refusal of instructions and some upon rulings on questions of evidence. These assignments have been examined seriatim, and we are not ready to affirm error of any of them. So far as the exceptions relating to...