Swanson v. Wasson
| Citation | 45 Idaho 309,262 P. 147 |
| Decision Date | 15 December 1927 |
| Docket Number | 4789 |
| Parties | MRS. V.G. SWANSON, Appellant, v. DR. T. S. WASSON, Respondent |
| Court | Idaho Supreme Court |
PHYSICIANS AND SURGEONS - MALPRACTICE - NEGLIGENCE-EVIDENCE-DEGREE OF SKILL AND CARE REQUIRED.
1. "Negligence" on part of physician consists in his doing something which he should not have done, or in omitting to do something which he should have done in treating patient.
2. Physician is bound to bestow such reasonable and ordinary care, skill and diligence as physicians and surgeons in same neighborhood, in same general line of practice, ordinarily have and exercise in like cases.
3. In action against physician for damages for malpractice, where evidence is as consistent with absence as with existence of negligence, case should not be left with jury.
4. In action against physician for damages for malpractice plaintiff must show by affirmative evidence that defendant was unskilful or negligent, and that want of skill or care caused injury to her.
APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.
Action for damages for malpractice. Judgment for defendant. Affirmed.
Judgment affirmed. Costs to respondent.
Turner K. Hackman, for Appellant, cites no authorities on points decided.
Walters & Parry and Vernon B. Walters, for Respondent.
"In cases of alleged malpractice the burden is upon the plaintiff to establish that the defendant failed to exercise the skill which the law demanded; or that in his treatment of the case he was guilty of negligence,--the plaintiff must establish this by a preponderance of the evidence." (Napier v. Greenzweig, 256 F. 196; Georgia Northern Ry. Co. v. Ingram, 114 Ga. 639, 40 S.E. 708; Wood v. Wyeth, 106 A.D. 21, 94 N.Y.S. 360; Goodman v. Bigler, 133 Ill.App. 301; O'Grady v. Cadwallader, 183 Iowa 178, 166 N.W. 755.)
The law demands that a physician is bound to bestow such reasonable and ordinary care, skill and diligence as physicians and surgeons in the same or similar locality, in the same general line of practice, ordinarily have and exercise in like cases. (21 R. C. L. 381, 382.)
"In the absence of evidence to the contrary, the law will presume the exercise of a reasonable degree of care and skill by a physician and surgeon." (Houghton v. Dickson, 29 Cal.App. 321, 155 P. 128; Priestley v. Stafford, 30 Cal.App. 523, 158 P. 776.)
Appellant commenced an action against respondent, a licensed physician and surgeon, to recover damages for alleged malpractice. Upon the trial, and after all of the evidence was in and both sides had rested, respondent renewed a motion for nonsuit. The trial court treated the motion as one for an instructed verdict, and thereupon instructed the jury to return a verdict for respondent, which instruction was complied with by the jury. Upon the verdict so returned, judgment was duly entered in favor of respondent, from which judgment appellant has appealed.
Error is sought to be predicated upon the ground that appellant's evidence made out a prima facie case, and that the trial court erred therefore in directing the jury to return a verdict for respondent.
We have concluded to sustain the judgment. No useful purpose could be served by setting out the testimony of the various witnesses, since it clearly appears from the record that appellant failed to introduce sufficient evidence to warrant the court in submitting the case to the jury.
Negligence on the part of a physician consists in his doing something which he should not have done, or in omitting to do something which he should have done. There is no evidence in the record herein which shows, or tends to show, that respondent was negligent in doing something which he should not have done. Appellant's contention rests upon the theory that respondent failed to do some things which he should have done.
The rule would seem to be quite universal that a physician is liable to his patient for a failure to exercise requisite skill and care, and that he must...
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