Stokes v. Dailey

• Decision Date: 10 July 1959
• Docket Number: No. 7825,7825
• Citation: 97 N.W.2d 676
• Parties: Arthur W. STOKES, Plaintiff and Appellant, v. Walter C. DAILEY, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 676

97 N.W.2d 676

Arthur W. STOKES, Plaintiff and Appellant, v. Walter C. DAILEY, Defendant and Respondent.

No. 7825.

Supreme Court of North Dakota.

July 10, 1959.

Rehearing Denied July 30, 1959.

Syllabus by the Court.

1. In the absence of special agreement, a physician does not guarantee or insure a good result, or that he will effect a cure.

2. A physician's implied obligation arising from his employment is that no injury shall result from any want of care or skill on his part.

3. Where honest and intelligent men may differ in their conclusions upon any material fact in the case, questions of negligence and contributory negligence are for the jury.

4. Order denying motion for new trial because of insufficiency of the evidence to justify verdict will not be disturbed by appellate court where there is substantial conflict of evidence.

5. Motion for new trial on ground that evidence does not justify verdict, addressed to sound, judicial discretion of trial court, and order on such motion will not be reversed by Supreme Court in absence of abuse of discretion.

6. Error cannot be predicated on misconduct of counsel unless trial court is first given opportunity to exercise its discretion as to whether such objectionable conduct is prejudicial.

7. Where error is claimed on opposing attorney's argument to jury, appellant must present a record affirmatively showing objectionable language used.

8. Trial court has duty to fully and fairly instruct the jury on the law governing issues involved in the trial, and may refuse requested instructions where the matter already is fully and fairly covered by charge given, even though requested instructions correctly state the legal principles involved.

Cyrus N. Lyche and Duane R. Nedrud, Grand Forks, for plaintiff and appellant.

Nilles, Oehlert & Nilles, Fargo, for defendant and respondent.

STRUTZ, Judge.

This case has previously been before this court on an appeal from a judgment of dismissal, which dismissal was on the ground that the plaintiff had completely failed in his proof, N.D., 85 N.W.2d 745. A new trial was granted the plaintiff on such appeal on the ground that the trial court's dismissal of the action on defendant's motion for dismissal, at the conclusion of the plaintiff's case, was prejudicial error.

The case thereafter was again tried to a jury in the district court of Grand Forks County. The jury returned a verdict dismissing the plaintiff's complaint, and judgment was entered on such verdict. Plaintiff then moved for a new trial. The trial court entered its order denying plaintiff's motion for a new trial. This appeal is from the order denying motion for new trial and from the judgment of dismissal.

The plaintiff, a licensed and practicing attorney for many years in the city of Grand Forks, consulted the defendant, a licensed physician and general practitioner in the same city, in April of 1952. The plaintiff was suffering from a skin irritation which he had endured for some years. This irritation at times became worse, and was especially evident in the vicinity of his armpits. The defendant prescribed Histadyl with Surfacaine in the form of an ointment put up in a tube.

When the plaintiff received the prescription, he used it only once. That application caused a severe burning sensation and, after the one application, he abandoned the prescription and returned to the use of rubbing alcohol, Pragmatar, and Stag Cologne, which he had been using without medical prescription for some time.

Some eighteen months later, in November of 1953, the plaintiff ran out of his own remedies so he again tried the Histadyl with Surfacaine which the defendant had prescribed in April of 1952. Again it caused a burning sensation. Nevertheless, he used it a second time. These applications caused the irritation to spread. The plaintiff then continued using Pragmatar, Stag Cologne, and rubbing alcohol and discontinued the use of the defendant's prescription.

Less than a month thereafter, on December 14, 1953, the plaintiff went to the clinic for a physical checkup without a definite appointment. He arrived at the clinic just at noon and was told by the defendant that the defendant did not have the time to give him a physical examination at that time. The plaintiff then asked the defendant to take a look at his arms, which were bothering him. The plaintiff and the defendant stepped into a small office and the defendant looked at the plaintiff's arms and said, 'I will give you a prescription.'

The plaintiff claims that he then advised the defendant: 'Don't give me the same stuff you gave me before because that drives may skin wild.' The defendant denies that the plaintiff made any such statement. In any event, the defendant did write out a prescription. The plaintiff had the prescription filled and went to his home where he applied it under his arms. Again, according to the plaintiff's testimony, he experienced a burning sensation after the application of the prescription. Eight hours later, however, the plaintiff applied contents of the second prescription once more, but with the result that such application caused the irritation to spread.

The irritation under the plaintiff's arms became worse, and the following day the plaintiff saw the defendant at the clinic. Later in the same day, the defendant stopped to see the plaintiff at his home and then asked the plaintiff to return to the defendant's office in the afternoon, where two hypos were given to him.

The plaintiff then was taken home and went to bed. Around three o'clock the following morning, while the plaintiff was in the bathroom, he lost consciousness. He thereupon was taken to the Deaconess Hospital, where he remained as a patient until the 25th day of December, 1953, when he went home for Christmas. He again entered the hospital on January 1, 1954, and on January 7 he left Grand Forks for St. Paul, Minnesota, where he consulted Dr. Francis Lynch, a skin specialist. He entered Miller Hospital in St. Paul on January 7, and remained in the hospital until January 21, during which time he was under the care of Doctor Lynch. On January 21 the plaintiff returned to Grand Forks and on the 28th of January, in the company of his wife, he left Grand Forks for Florida. That trip was taken at the suggestion of the plaintiff and concurred in by his physician, Doctor Lynch. Plaintiff remained in Florida until March 5, 1954, when he started back for North Dakota. On the return trip, on March 10, the plaintiff stopped at St. Paul to see Doctor Lynch, and the next day he returned to his home in Grand Forks. He resumed work in his law office on March 15, in a much improved condition.

Doctor Lynch testified that, in his opinion, the aggravation of plaintiff's skin affliction was caused by contact with Surfacaine. He further testified that giving a prescription containing Surfacaine without giving a patch test was in conformity with good medical practice.

On this record, the jury dismissed the plaintiff's complaint, and the case now is before this court on an appeal from an order denying the plaintiff's motion for a new trial and from the judgment.

Generally, in the absence of a special agreement, a physician does not guarantee or insure a good result, or that he will effect a cure. 70 C.J.S. Physicians and Surgeons Sec. 47, p. 954; Ness v. Yeomans, 60 N.D. 368, 234 N.W. 75.

A physician's implied obligation arising from his employment is only that no injury shall result from any want of care or skill on his part. Schoening v. Smith, 59 N.D. 592, 231 N.W. 278.

In this case, plaintiff alleges negligence on the part of the defendant in not using proper care and skill and in not determining whether the plaintiff was allergic to Surfacaine before prescribing it for plaintiff's affliction.

The question of negligence is one for the jury where there is evidence tending to show failure to exercise the requisite professional skill and care in treating and caring for the patient or in diagnosing his case. Here the jury has passed on that question. Unless appellant shows reversible error, the verdict of the jury will not be disturbed.

The appellant alleges numerous errors on his appeal, and such allegations of error may be summed up in the following:

1. Failure of the trial court to grant the plaintiff's motion to withdraw from the consideration of the jury the question of contributory negligence, claiming there was no evidence of contributory negligence in this case.

2. Insufficiency of the evidence to justify the verdict for the defendant.

3. Misconduct of defendant's counsel and improper argument by defendant's counsel to jury, including prejudicial error in allowing counsel for the defendant to read from the court's instructions during his argument to the jury.

4. Errors of law in the court's ruling on the evidence and in instructing the jury.

One of the more serious questions raised by the appellant is on the court's instructing the jury on contributory negligence. Clearly, if there were no evidence of contributory negligence on the part of the plaintiff, instructing the jury on that question was error which could well have prejudiced the jury against the plaintiff. The record discloses that the plaintiff produced evidence to show that, in November of 1953, a few weeks prior to December 14, the day on which the plaintiff received a second prescription from the defendant, the plaintiff had used the defendant's first prescription on two occasions. In both instances the result was a burning sensation and a spreading on his ailment. The burning sensation in itself is not significant. Many treatments, which heal, cause a burning sensation in the process. But the fact that the first prescription had caused the plaintiff's affliction to spread is, we believe, significant. The result of its use on those two previous occasions was such that the plaintiff immediately discontinued using that prescription. Yet, when...