West v. Martin

• Decision Date: 31 January 1861
• Citation: 31 Mo. 375
• Parties: WEST, Respondent, v. MARTIN, Appellant.
• Court: Missouri Supreme Court

31 Mo. 375

WEST, Respondent,

v.MARTIN, Appellant.

Supreme Court of Missouri.

January Term, 1861.

1. The liability of a surgeon for an error of judgment depends not merely upon the fact that he may be ordinarily skilful as such, but whether he has treated the case skilfully, or has exercised in its treatment such reasonable skill and diligence as is ordinarily exercised in his profession. There may be responsibility where there is no neglect. The error of judgment may be so gross as to be inconsistent with that degree of skill that it is the duty of every surgeon to possess.

Appeal from Buchanan Court of Common Pleas.

This is an action for damages for malpractice, in the unskilfulness with which defendant set plaintiff's leg. On the trial defendant offered to prove by plaintiff's witness that plaintiff and his family had weak bones, very liable and easy to break and which were hard to cure. The court excluded the evidence about the bones. Plaintiff asked Dr. Trevor this question: “That if the directions of a surgeon had been followed in the treatment of the leg when broken, and he a skilful man, and the fracture a simple oblique fracture, would the leg, in your opinion, appear as it does?” The witness answered he thought it would not. Defendant objected to the answer. The following are the instructions of defendant refused by the court: “3. If the defendant is a surgeon of ordinary skill, he is not responsible in this case for an error of judgment. 4. Notwithstanding defendant may have set plaintiff's thigh bone unskilfully, yet if the injury was occasioned by any act of plaintiff or any failure on the part of plaintiff to submit to and observe the directions of defendant relating to the treatment and cure of plaintiff's thigh, they will find for defendant. 6. The jury will exclude from their consideration, in making up their verdict, all evidence introduced before them which does not tend to prove the manner of setting the bone broken, and the skilfulness in setting the same, but will consider only such evidence as tends to prove the setting of the broken bone and skill exercised in said act of setting. 7. That the setting of a broken bone is the act of adjusting the broken fragments of the broken bone to their natural position occupied by them before broken, and the treatment of the case after the setting of the bone is a different thing and distinct from the setting of the bone.”

Ensworth & Loan, for appellant.

I. The court erred in excluding the evidence of Dr. Goslee in relation to the character of plaintiff's bones. The surgeon is responsible only for want of reasonable skill and care, and upon this question it is a material circumstance for the jury to know what is the diathesis of the patient. The skill that would in ordinary cases effect a cure, may in a particular case, under peculiar circumstances, result in a deformity.

II. The court erred in giving the instruction as asked by the plaintiff. The petition charges only unskilfulness in setting the leg, and the instruction authorizes a recovery for unskilful treatment of the thigh afterwards. This the law will not tolerate. (Duncan v. Fisher, 18 Mo. 403.) The third instruction should have been given. (Leighton v. Sargent, 7 Foster, N. H., 460.) The fourth instruction should have been given. There was evidence tending to show that the directions of the defendant had not been observed, and if the injury sustained by plaintiff was occasioned by any act of plaintiff, the defendant is not responsible therefor. (McCandless v. McWha, 22 Penn., 10 Harris, 261.) The sixth instruction should have been given, as the only allegation in the petition was unskilfulness in setting the bone. The seventh instruction should have been given.

Vories & Vories, for respondent.

I. The court properly excluded the evidence offered by defendant to prove the weakness and insufficiency of the bones of the family relatives of the plaintiff. The question in this case was as to the unskilful treatment of plaintiff's leg by defendant, and the character of the bones of the family would throw no light upon that subject. They did not offer to prove that the deformity of the leg was caused by any inherent defect in the broken bone, nor was any such defence set up or relied on in the answer. (8 Watts & Serg. 376.)

II. The medical witness was properly admitted to give his opinion in reference to the condition of the leg or thigh, predicated upon a supposed state of facts growing out of the evidence in the cause. The question was one of science, about which the scientific witness had a right to give his opinion. (1 Greenl. Ev. § 440.)

III. The third instruction asked by defendant was properly refused by the court. The law had been fairly and properly given in other instructions, and said instruction assumed that a surgeon would not be responsible for an error of judgment, however gross, and if it had been given would have induced the jury to believe that nothing...