Staloch v. Holm

• Decision Date: 08 March 1907
• Citation: 111 N.W. 264,100 Minn. 276
• Parties: STALOCH v. HOLM et al.
• Court: Minnesota Supreme Court

100 Minn. 276

111 N.W. 264

STALOCH

v.HOLM et al.

Supreme Court of Minnesota.

March 8, 1907.

Appeal from District Court, Faribault County; James H. Quinn, Judge.

Action by Lorenz Staloch, as administrator of the estate of John Staloch, deceased, against Peter F. Holm and another. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Syllabus by the Court

In an action for malpractice, a claim of operating without consent is eliminated by the charge of the court that the sole basis of the recovery of damages is the alleged negligence of the physician, to which the plaintiff made no objection and took no exception.

The negligence of a surgeon in determining to perform a primary operation during a condition of shock is to be determined by reference to pertinent facts then in existence, which were known or which ought to have been known in the exercise of due care, and not by reference to knowledge acquired after the operation has been performed.

To the ordinary rule that the exercise of defendant's best judgment is no defense in an action for damages caused by his negligence, a general exception is recognized with respect to cases involving matters of opinion and judgment only. Vaughn v. Menlove, 3 Bing. (N. S.) 368, distinguished.

A physician entitled to practice his profession, possessing the requisite qualifications, and applying his skill and judgment with due care, is not ordinarily liable for damages consequent upon an honest mistake or an error of judgment in making a diagnosis, in prescribing treatment, or in determining upon an operation, where there is reasonable doubt as to the nature of the physical conditions involved, or as to what should have been done in accordance with recognized authority and good current practice.

The exception in malpractice cases applies to the formation of the judgment by such physician. It may not extend to the previous acquisition of data essential to a proper conclusion or to consequent conduct in the subsequent selection and use of instrumentalities with which he may execute that judgment.

The reasons for this exception are to be found in the character of the emergencies physicians meet, which often preclude deliberation; in the nature of their undertaking, which contracts for individual judgment and skill; in the peculiarity of the human constitution, which presents difficulties not arising from insensate matter; in the nature of medical science, which is based on progressive knowledge; and in the inherent uncertainty of the expert testimony involved, which itself is the expression of opinion often in such cases founded on doubtful observation.

Here a physician amputated a crushed, bruised, and torn leg, the tibia of which had suffered an oblique compound, comminuted fracture. The operation was performed shortly after the injury had been caused by teeth on the revolving cylinder of a threshing separator into which the patient had fallen. The tibia was sawed in two places. Death ensued. It is held that, upon the testimony as to the condition of the patient and the evidence of experts, the physician was entitled to a directed verdict.

Quaere, where only parts of the bones in controversy were exhumed and only parts of those parts, because of mutilation at the time of disinterment, were offered in evidence, whether they should have been received.

The fact that a patient dies immediately after an operation is not of itself evidence of negligence on the part of the operating surgeon. Putnam & Nicholsen and H. L. & J. W. Schmitt, for appellants.

Lovely & Dunn and H. C. Carlson, for respondent.

JAGGARD, J.

Defendants and appellants, duly licensed physicians and surgeons, practiced medicine as partners. One of them, Dr. Schmitt, amputated the right leg of plaintiff's and respondent's intestate, who died within a short time afterwards. The plaintiff had a verdict of $1,000. No motion for a new trial was made. This appeal was taken from a judgment entered upon a denial of defendants' motion for judgment, notwithstanding the verdict.

The original charges of actionable wrong included several which have been expressly waived. Counsel for plaintiff argues, however, that the evidence tending to show an operation without consent justifies the verdict. The charge of the trial court referred, at one place, to the claim of absence of consent and, at another, to the burden of proof in such a case; but, construed as a whole, it submitted to the jury as the real and only issue the liability of defendants for negligence. Plaintiff made no previous requests to instruct, suggested no changes at the close of the charge, and took no exceptions to it as given. Therefore, without reference to whether a cause of action for an assault would have survived (Rev. Laws 1905, § 4503; McLean v. Burbank, 12 Minn. 438, 443 [Gil. 438]), or to any question as to the necessity of plaintiff's election between a cause of action in assault and one in negligence (Wood v. Wyeth [Sup.] 94 N. Y. Supp. 360), plaintiff's right to recover in trespass vi et armis has been eliminated. This conclusion is the more satisfactory inasmuch as the great weight of evidence shows consent to the operation.

The question presented here is whether the evidence justified the verdict by showing negligence of the defendant (1) in performing the operation at all, and (2) in the manner of its performance. The testimony must be construed as favorably to the plaintiff as reasonably may be. The brief facts thus resulting were as follows: The deceased, an apparently strong healthy man, 21 years of age, working with a steam threshing outfit, stepped on the covering over the cylinder of a separator about to stop. A board slipped. His right foot went down in front of the revolving cylinder. The crew took him off the machine. A tooth or teeth of the cylinder had torn the flesh in the back part of the calf of his leg. Although the witnesses used different and inconsistent adjectives in describing the injury, it appears from their testimony and the circumstances that considerable flesh was mangled, crushed, and shredded; that the wound was large, lacerated, ragged, and oozing; that it was ‘ground full of chaff, dirt, and seeds'; and that bones and tissues were ‘gouged out.’ The young man was taken to a nearby house and Dr. Schmitt, one of the defendants, immediately sent for. The doctor arrived; was at once able to tell that an operation would be necessary, but did not decide on it then. It was at least an hour, he says, before he commenced to actually operate. This he did, according to his testimony, a little before 1 o'clock and completed it before 2, remaining for some hours afterwards and administering stimulants. Shortly after he left the patient died. The evidence of plaintiff tended to show that the patient died of shock; the evidence of the defendants, that he died from the effect of a bubble of air or fat or of a clot of blood which found its way to and stopped the action of the heart. No post mortem examination was made. There was much contradiction in the testimony as to the last-mentioned times and facts, but it is not material here. Nor is it significant whether, as plaintiff's case tended to show and defendants' case to deny, the defendant subsequently made damaging admissions concerning the propriety of the operation, in view of his after-acquired knowledge. His negligence is to be determined by reference to pertinent facts then in existence, of which he knew or should have known in the exercise of due care, when the operation was performed. It would be a work of supererogation to cite authorities for so obvious and necessary a principle, or for this specific application of a general rule. There is an apt and neglected analogy in the rule restricting proof of the presence or absence of probable cause for instituting an original judicial proceeding complained of in an action for malicious prosecution to known or knowable facts in existence at the time of the commencement of that original proceeding.

Shortly before the trial, a priest of the local Catholic parish and a physician, who had been employed to get evidence for the plaintiff, and who was a competitor of the defendants, exhumed the body of the deceased, with which the amputated part of the leg had been buried. While at the grave the doctor took a screw-driver and pried off the tibia-at one end, from the ankle joint; at the other end, from the knee joint. In so doing, two or perhaps three pieces of bone were broken off near the ankle joint, and at a place much involved in controversy. These pieces of the tibia were not produced in court. The only explanation for their absence was that they were ‘tenderly’ put back in the grave. The witnesses did produce the upper part of the tibia extending from the knee to where it was cut, and the lower part from the cut to the ankle joint, and also a part of the fibula. But they did not produce any of the bones of the foot concerning the controversies as to which, in consequence, they could and did give only oral testimony. The evidence in connection with the bones produced showed an oblique compound comminuted fracture, and an ‘opening in the bone, the marrow canal, six inches from the upper end of the opening to the lower end of the opening’ which was, ‘between irregular edges of the bone about an inch wide at the top,’ and a little wider lower down. The pieces of bone which came out of this ‘long hole’ were not found at the grave. The bones produced showed that the tibia had been cut twice, that a section of it about an inch long had disappeared without any fault attributable to the plaintiff or his witnesses. While the presence of the parish priest rebutted any inference of bad faith in the disinterment, it might well be questioned whether the production of only part of the bones in controversy, and of only parts of those parts because of their mutilation during the exhumation, justified the admission in...