Small v. Howard

• Decision Date: 19 January 1880
• Citation: 128 Mass. 131
• Parties: George S. Small v. Levi Howard
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 131

George S. Small v. Levi Howard

Supreme Court of Massachusetts

January 19, 1880

Argued October 2, 1879 [Syllabus Material] [Syllabus Material]

Worcester. Tort against a physician and surgeon for malpractice in dressing and caring for a wound upon the plaintiff's wrist. Trial in this court, before Colt, J who allowed a bill of exceptions in substance as follows:

The wound was made by glass, and, as the defendant testified, the cut throughout the whole inside of the wrist extended to the bone, severing all the arteries and tendons. The testimony of experts on both sides was, that the wound was a very severe one and required a considerable degree of skill in its treatment. The defendant was a physician and surgeon in Chelmsford, a country town in this Commonwealth, of about twenty-five hundred inhabitants, and had no experience in surgery beyond that usually had by country surgeons. There was evidence that an eminent surgeon resided within four miles of the defendant; that the treatment of the defendant extended over about ten days, and the plaintiff during all this time was physically able to have visited any other surgeon, if so directed, which was not done. One of the experts called by the plaintiff testified, that he did not think the average country surgeon would be likely to possess the requisite skill to care for this wound. The evidence of the experts was conflicting, some testifying that the wound was properly treated, others the contrary.

The judge instructed the jury in substance as follows: "A physician or surgeon without a special contract with his patient, is never considered as warranting a cure. His contract, as implied by law, is: 1. That he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by others of his profession, having regard to the present advanced state of the science of surgery. 2. That he will use reasonable and ordinary care and diligence in the treatment of the case committed to him. 3. That he will use his best judgment in all cases of doubt as to the best course to pursue in his treatment of the case. The defendant, undertaking to practise as a physician and surgeon in a town of comparatively small population, was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess; and he was not bound to possess that high degree of art and skill possessed by eminent surgeons practising in large cities, and making a specialty of the practice of surgery. He is not responsible for want of success, unless it is proved to result from want of ordinary care and attention, and then only to the extent of the injury caused by his want of skill and neglect, not for the whole consequences of the particular original injury or disease. He is not presumed to engage for extraordinary skill or extraordinary care and diligence. He is not responsible for errors in judgment, or mere mistakes in matters of reasonable doubt and uncertainty, provided he exercises ordinary skill and diligence. The rule applicable to this case is not a rule of law applicable to physicians and surgeons alone, nor is it confined to other members of the learned professions, but it is equally applicable to all persons who hold themselves out as possessing special skill in the transaction of the business in which they are engaged. A civil engineer, a watchmaker, mechanic or blacksmith, for instance, is subject to the same rule of law.

At the plaintiff's request, the jury were instructed that, if the defendant had not the requisite skill and experience to treat the wound, he should have temporarily dressed it, if necessary, and recommended the plaintiff to a more skilful surgeon.

The plaintiff objected to the instructions given, only in so far as the degree of skill, learning and experience required of the defendant was concerned, contending that a higher degree thereof was required of the defendant than above laid down; and relied entirely on the defendant's lack of skill, learning and experience.

The plaintiff also asked the judge to instruct the jury that "it is incumbent upon the defendant to possess the degree of skill and learning possessed by well-educated surgeons;" and "that the average degree of skill and learning possessed by the surgeons of this Commonwealth is not necessarily all the skill and learning which it is incumbent on the defendant to possess." The judge declined to give these instructions.

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

Exceptions overruled.

G. A Torrey, for the plaintiff. 1. The defendant, by undertaking, as a surgeon, to treat the plaintiff's wound, was bound to possess that reasonable degree of skill, learning and experience requisite to insure a proper treatment of the case, and to know enough to be able to judge whether he was competent to undertake the treatment of so severe a wound; if he was not, it was his duty to render the necessary temporary care, and to send the plaintiff to a surgeon having proper qualifications. It was entirely immaterial that the defendant resided a few rods within the line of a country town. He would not have been subject to a different rule had he moved into the city of Lowell during the treatment of the plaintiff's case. The jury, in estimating what qualifications are necessary, have a right to consider the average skill, learning and experience of the profession, properly so called, that is, of well-educated physicians and surgeons, exclusive of quacks and mountebanks. Under the instructions given, the only question for the jury was whether the defendant was up to the average of all those who practise the profession in the country. The instructions given do not discriminate between a severe and an ordinary injury. Had this been a most difficult and dangerous...