Slimak v. Foster

• Decision Date: 28 June 1927
• Citation: 138 A. 153,106 Conn. 366
• Court: Connecticut Supreme Court
• Parties: SLIMAK v. FOSTER.

138 A. 153

106 Conn. 366

SLIMAK v. FOSTER.

Supreme Court of Errors of Connecticut.

June 28, 1927

Appeal from Superior Court, Fairfield County; John W. Banks, Judge.

Action by Albert Slimak against Dean Foster to recover damages alleged to have resulted from negligent and unskillful surgical treatment of the plaintiff's nose by the defendant. Verdict for plaintiff was set aside on defendant's motion, and plaintiff appeals. Error, and cause remanded, with directions to enter judgment on verdict.

Expert testimony may be dispensed with where malpractice manifest obvious gross want of skill.

Nehemiah Candee, of South Norwalk, for appellant.

William H. Comley and Raymond E. Baldwin, both of Bridgeport for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HINMAN, and WOLFE JJ.

HINMAN, J.

The plaintiff offered evidence from which the jury might reasonably have found that while the defendant, a physician and surgeon specializing in the treatment of diseases of the eye, ear, nose, and throat, was performing an operation upon the plaintiff for the removal of a bony spur from the left nostril of his nose, a blade of the instrument which he was using broke off in the cartilege of the nose and remained lodged therein. The defendant did not remove this broken piece or inform the plaintiff of its presence, but gave him treatment two or three times thereafter; neither did he complete the removal of the nasal spur. About six weeks later the defendant himself removed the fragment of instrument with his fingers. The verdict for the plaintiff was set aside upon the ground that although two specialists testified as to subsequent examinations and treatment of the plaintiff's nose, no expert evidence was offered that the defendant's failure to remove the broken piece was negligent or that a reasonably skillful specialist would have extracted it and removed the bony spur. The validity of this ground is the principal question presented by this appeal.

In determining what constitutes the reasonable and ordinary care, skill, and diligence which a physician or surgeon specializing in diseases of certain organs is requred to exercise, the test is that care, skill, and diligence which practitioners in the same general neighborhood and the same special line have and exercise in like cases. Styles v. Tyler, 64 Conn. 432, 30 A. 165; Force v. Gregory, 63 Conn. 167, 27 A. 1116, 22 L.R.A. 343, 38 Am.St.Rep. 371; Slade v. Harris, 105 Conn. 440, 135 A. 570; Harris v. Fall (C. C. A.) 177 F. 79, 27 L.R.A. (N. S.) 1174; Rann v. Twitchell, 82 Vt. 79, 71 A. 1045, 20 L.R.A. (N. S.) 1030. It was, therefore, of controlling importance in this case to ascertain whether, in allowing the piece of instrument to remain and in discontinuing his attempt to remove the nasal spur, the defendant measured up to this standard. When a topic requiring special experience of an expert forms a main issue in the case, the evidence on that issue must contain expert testimony or it will not suffice. " In actions for malpractice against a physician or surgeon, the main issue of the defendant's use of suitable professional skill is generally a topic calling for expert testimony only; also that the plaintiff in such an action often prefers to rest his case on the mere facts of his sufferings, and to rely upon the jury's untutored sympathies, without attempting specifically to evidence the defendant's unskillfulness as the cause of those sufferings. Here the courts have been obliged to insist on the dictate of simple logic; * * * expert testimony on the main fact in issue must somewhere appear in the plaintiff's whole evidence; and for lack of it the court may rule, in its general power to pass upon the sufficiency of evidence, that there is not sufficient evidence to go to the jury," or to sustain a plaintiff's verdict. 4 Wigmore on Evidence (2d Ed.) § 2090. This doctrine has been applied and sustained in numerous cases collected in the note to the above quoted section (page 454 et seq.), including the following: Ewing v. Goode (C. C.) 78 F. 442, 444; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642; McGraw v. Kerr, 23 Colo. App. 163, 128 P. 870; Adolay v. Miller, 60 Ind.App. 656, 111 N.E. 313; Snearly v. McCarthy, 180 Iowa, 81, 161 N.W. 108; Pettigrew v. Lewis, 46 Kan. 78, 26 P. 458; Rainey v. Smith, 109 Kan. 692, 201 P. 1106; Sawyer v. Berthold, 116 Minn. 441, 134 N.W. 120; Feeney v. Spalding, 89 Me. 111, 35 A. 1027; Farrell v. Haze, 157 Mich. 374, 122 N.W. 197; De Long v. Delaney, 206 Pa. 226, 55 A. 965; Barker v. Lane, 23 R.I. 224, 49 A. 963; Krueger v. Chase, 172 Wis. 163, 177 N.W. 510; Loudon v. Scott, 58 Mont. 645, 194 P. 488, 12 A.L.R. 1487; Wilkins v. Brock, 81 Vt. 332, 70 A. 572; Tady v. Warta, 111 Neb. 521, 196 N.W. 901.

The reason for the rule is perhaps as clearly and succinctly stated as anywhere in Snearly v. McCarthy, supra, which involved alleged malpractice in reducing a fracture of the plaintiff's leg:

" While the method of treatment adopted by defendant is fully pointed out and described in the testimony, no witness was called by plaintiff to show that this was not regarded as proper practice by the profession in the locality where defendant practiced. * * * As a general rule, it may be safely affirmed that, in matters requiring special skill and training, it is not permissible for laymen as nonexperts to set up any artificial standards as to methods of treatment. This is especially true in surgery; for in that field neither courts nor juries are presumed to know more regarding methods of treatment than ordinary laymen, and that is practically nothing. After hearing the theories, deductions and scientific facts from experts, both judge and jury

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