Wittenberg v. Onsgard
| Decision Date | 15 December 1899 |
| Citation | 78 Minn. 342,81 N.W. 14 |
| Parties | WITTENBERG v. ONSGARD. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Houston county; Nathan Kingsley, Judge.
Action by Julius Wittenberg against L. K. Onsgard. Verdict for plaintiff. From an order refusing a new trial, defendant appeals. Reversed.
1. A medical expert, having in his evidence in chief diagnosed the injury to the plaintiff as a dislocation of the cervical vertebrae, complicated with a fracture, and having then testified, without qualification or limitation, that the accepted treatment of a dislocation of cervical vertebrae, as laid down by the medical authorities, was a reduction of the dislocation, was asked on cross-examination whether a certain work (admitted by him to be a standard authority) did not lay it down that, where the dislocation was complicated with a fracture, no physician would be justified in attempting to reduce the dislocation. Held, that this was proper cross-examination, and that it was error to exclude the question.
2. All hypothetical questions put to an expert witness must be based upon facts admitted or established, or which, if controverted, might be legitimately found by the jury from the evidence. They should also embody all the facts relating to the subject upon which the opinion of the witness is asked. A certain hypothetical question held to have been improperly allowed, because not including all the facts bearing upon the subject upon which the opinion of the witness was asked, and also because it was based in part upon a fact not admitted or established, and which there was no evidence tending to prove.
3. The court may disregard a waiver of a jury trial by the parties, and require the issues to be submitted to a jury. The matter is addressed to his sound discretion. The waiver of a jury in this case construed as applying only to the term of court at which it was made.
4. Held, also, that an application of the defendant to the court to require the plaintiff to submit his neck to be photographed by the use of the Roentgen or X-rays, in order to ascertain the nature of his injuries, was properly refused, because the application was not seasonably made, and also because it did not sufficiently appear that the person by whom it was proposed that the photograph was to be taken had the requisite skill and experience to properly apply the rays.
5. Whether science is yet sufficiently advanced to justify the courts in taking judicial notice, as an established fact, that exposure to X-rays is not injurious to the subject, quaere. Duxbury & Duxbury, for appellant.
E. H. Smalley, for respondent.
This is an action against the defendant for malpractice as a physician while professionally treating the plaintiff for certain injuries which he had received by being thrown from a moving hand car. The allegations of the complaint as to the injuries which plaintiff had received were ‘that by reason of said cause plaintiff was seriously injured in the neck, back, side, shoulders, and spine, and in particular the vertebrae of the spinal column in the vicinity of the neck were dislocated by said injury.’ The malpractice charged against the defendant was that ‘he so negligently and unskillfully conducted himself, in attempting to treat said injury and to set such dislocation, that the dislocation of said vertebrae in said spinal column became permanent, and the plaintiff rendered helpless and permanently maimed and crippled for life; that the said defendant wholly failed and neglected, while in charge of plaintiff as his patient, to ascertain by careful examination the said dislocation, and cure the said injury in said spinal column; that the said vertebrae in the spinal column ossified, and it is impossible, without great danger of death ensuing to plaintiff thereby, to cure or set said dislocation of the said vertebrae.’ In his answer the defendant denied ‘that the vertebrae of plaintiff's spinal column in the vicinity of the neck, or in any other place, were dislocated, and admitted that he failed to set a dislocation because no such dislocation existed.’ Upon the trial the principal contentions of the plaintiff, and to which his evidence was mainly directed, were (1) that he had sustained a dislocation of the cervical vertebrae; (2) that defendant ought, in the exercise of ordinary professional skill, to have discovered that fact; and (3) that the proper treatment in such a case would have been to reduce or set the dislocation. On the other hand, the contentions of the defendant, to which his evidence was principally directed, were (1) that the plaintiff had not sustained any dislocation of the cervical vertebrae, but merely a sprain, accompanied with contusion of the spine; and (2) that, even if plaintiff had sustained a dislocation of the cervical vertebrae, what is termed the ‘expectant’ method of treatment is the proper one, and that, because of the great danger of injuring the spinal cord, a reduction of a dislocation should not be attempted, except as a last resort, in cases where it is apparent that death will otherwise ensue.
A medical expert called as a witness by the plaintiff gave in his examination in chief a diagnosis of the injury which in his opinion the plaintiff had sustained, viz. a dislocation of the cervical vertebrae, complicated with a fracture. He was then asked what was the accepted method, as laid down by the medical authorities, of treating a dislocation of the cervical vertebrae, and answered that it consisted of reducing the dislocation, followed by a course of treatment not necessary to be here referred to. On cross-examination the witness was referred to a medical work, admitted by him to be a standard authority, and asked if it was not laid down by that authority that, when the dislocation is complicated with a fracture, no doctor would be justified in attempting to press and reduce the dislocation. Upon the objection of the plaintiff, the question was excluded. This was manifest error, in view of the witness' previous diagnosis of plaintiff's injury, followed by his testimony, without limitation or...
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