Tefft v. Wilcox , 6 Kan. 46 ( 1870 )

The opinion of the court was delivered by

Sarrord, J.:

Upon the trial of this case in the court below, the plaintiff, now defendant in error, having been sworn as a witness in his own hehalf, was asked among others, the following question: “What damage have you sustained in consequence of the loss of your right arm and shoulder ?” The answer of the witness was in the words as follows: ' “ My answer is, the amount claimed in my petition, fully ten thousand dollars.” Both the question and the answer were objected to by the counsel for the defendant; but the objections were overruled, and the testimony was allowed to go to the jury, and exceptions to the ruling of the court were taken.

^/noSessiy timony winch b?raied”ut?d’ I. It is contended for the defendant in error that in order to make the exceptions available, the party excepting ought to have gone further than he did, and moved the court to rule out the objectionable testimony. We do not think so. The objections to the question propounded, and to the answer of the witness, were taken in the usual way, and upon such objections being overruled the exceptions to such rulings were also entered according to the usual practice in such cases, and were no doubt sufficient to entitle the party in whose behalf they were so made to any right which he might have by reason of the premises. If therefore under the ruling of the court in allowing the question referred to, to be asked and answered as stated, improper and illegal testimony was put before the jury, the course of the objecting party was such as to save the point as a basis for error to this court. Sections 300, 301, 302, Code of 1868.

2. witnesses ase to testify to the‘i-options. II. Then, as to the question asked. It was in no view of the case a proper one. It was calculated to elicit no facts which would assist the jury in deter min-o j ing for themselves as to the question of damages, but left the whole matter to the mere opinion of the witness. It was a question resting upon and including a large number of facts, as is evident from the multifarious proof which was submitted, and the number of witnesses who were called and testified at the trial; and it was such facts themselves that the defendant was entitled to have the jury pass upon, and that too uninfluenced by any opinion of any witness testifying in the relation in which this witness appeared. But such right was taken away by the authority of the court in permitting the course of inquiry which was pursued in this instance, and it seems clear that such a ruling ought not to be sustained. But this matter is placed beyond a doubt, when the answer of the witness comes to be considered in the light of the authorities. “ Another general rule, which pervades all our law is, that the witness is to testify only to facts. He is to speak as to the facts, which he has heard, or seen. His opinion is not to be given, for it is the opinion of the jury on the testimony which forms the verdict and decides the case.” And again : “ The general rule which requires a witness to speak to facts within his knowledge is applied to the subject of compensation; the damage must be proved like any other fact in the cause, and no testimony amounting to a mere opinion is competent.” Sedgwick on Dam., 699, 700; 29 Barb. 422; 17 "Wend., 137. There are exceptions to the rule, as thus expressed, having reference to questions of science, trade, and to those of a similar nature. But the question and answer, and the matter to which the inquiry was directed in this instance, do not come within any of such exceptions; and hence the general rule must be held to govern.

3 — and it ¡a error to admit 8ueh testimony. But it is claimed that the evidence complained of, even if it should be held to have been improperly admitted, could not have operated to the detriment of x ^ plaintiff in error, for the reason that “ it could not have influenced the jury, because there was no other evidence in a lump, and the jury found only $2900-as the damage.” We do not see how the conclusion of counsel results from or follows the premises stated. The jury must have given some consideration to all of the testimony which was offered, and more especially to such portions of it as had a direct bearing upon the question of damages; and it is but reasonable to believe that all of such last mentioned evidence must have had more or less influence upon their minds in the making up of their verdict. Just how much, or how strong was such influence, as connected with or resulting from any particular portion, it is impossible to know. But is it not just as impossible for us to say, with any show of reason, that the proof of the ease of the plaintiff below, did not, as to the question of damages rest to a very great extent upon this identical statement of the witness ? The jury must not only have considered all of the testimony offered upon the point in question, but they were convinced by it — as witness their verdict — that the plaintiff below ought to recover; and is there any way by which we may decide as to what particular portion of such evidence so operated upon the minds of the jury as to produce such result? If there is, we are not aware of it. Our conclusions then, as to the evidence in question, are, that it was clearly incompetent, and therefore inadmissible; that it might have influenced the jury to render a verdict for a larger amount against the defendant below, than they would have rendered had legal and proper testimony only been given. Here, therefore, is good ground for error. 9 Conn. 129; 29 Barbour, 422.

i. damages.— practice^01' mat~ NI. It is not proposed to refer in detail to the farther evidence on the question of damages in this record, or to the questions raised in respect thereof upon the argument, with the purpose of giving the opinion of the court as to whether they are or are not well taken. But in view of the fact that further proceedings may he had herein, it may be important to call attention to the rule as to the measure of damages which has obtained in, and has been followed by many highly respectable courts in the trials of actions of a similar nature, and hence may be considered as settled. It is to the effect, that, notwithstanding the absence of any malice or fraud on the part of an attending physician and surgeon, yet, if injury result to his patient by reason of a want of ordinary skill or ordinary care and attention in the treatment of such patient, the injured party may recover damages for the injury, and such as- are compensatory in their nature. These are held to include pecuniary loss, both direct and indirect, if referable to and resulting from the course of treatment complained of. Suffering also, which is produced in consequence 'of the acts in question, may be a subject of compensation. So also the loss of time and actual expenses incurred in consequence of the fault, want of skill, or negligence of the physician. Regard is also to be had in such case to the character of the resulting injury, as to whether it be temporary or permanent in its consequences. So also, the situation and condition of the injured party may be considered. All of these items may be taken into the account by the jury in the making up of their estimate of damages in a proper case; and as a matter of course, it follows, that evidence properly referable thereto, and tending to establish such damages as resulting under each particular head or description would be competent, though such evidence must be free from objection in other respects. This doctrine is supported upon the general principle that when an injury has been sustained, and the law gives a remedy, that remedy shall be commensurate to the injury sustained. See also as to the points named, Sedgwick on the Measure of Damages, 32; 10 Barbour 621; 1 Kernan, 416; 22 Mo., 344; 15 N. Y., 415; 1 Duer, 233.

c expats, how, and on what, to foxnsress opm' IV. It appears from the record, that during the progress of the trial, several physicians and surgeons were examined on behalf of the plaintiff x who gave testimony as experts, and without knowing the particulars of the case from personal observation. Without specifying particular instances, of which there are several, the court permitted such experts to give their opinions as to matters of fact concerning, and assumed to exist in and constituting this particular case. This is not allowable, as we understand the-rule applicable to such examinations, when the facts are disputed, as was the case here. “ In such a case the expert cannot give an opinion on the case under trial; but counsel must put to him an hypothetical or supposed state of facts, and' ask the opinion of the witness upon these facts.” (Elwell on Malpractice, 277, and the cases there cited.) This rule ought to have been followed in this case; and the court failing to enforce it, and the defendant having properly saved his objections in respect thereof, he is in a condition to take advantage of the error whenever it occurred. And that such error is substantial, and calculated to prejudice the rights of the party to be affected thereby, is not doubted; it cannot therefore be disregarded.

6. Evidence inadm£3iMe!’not V. It is claimed that in the examination of witnesses in this case, questions were propounded which were of and concerning matters involving points of law only.' It hardly need be said that this course of inquiry was improper, if it occurred as stated. This does not, however, appear to be the case in regard to the portions of the testimony to which our attention is directed under this point, and which had reference to what would be the duty of an attending physician and surgeon under like circumstances as were supposed to exist in this case.

r. a»™, care, £Swtobarejmy‘ VI. As to what constitutes' ordinary skill, and ordinary care and diligence on the part of a physician and surgeon — it is a question of law, in this view at least, that it is to be stated by the court as defined by the books. It will be seen however, at a glance, that in order to enable a jury to apply the rule so stated, to particular circumstances, something further is necessary to be done. Such jury must be informed as to the facts or criterion upon and by which the standard of ordinary skill and ordinary care aud diligence rests, and is regulated in these professions. And to supply such need, evidence may properly be introduced, as showing such facts. This evidence must, from the very nature of the case, come from experts, as other 'witnesses are not competent to give it, nor are juries supposed to be conversant with what is peculiar to the science and practice of the professions of medicine and surgery to that degree which will enable them to dispense with all explanations. Such explanations therefore become necessary. In this view, the whole question under consideration seems to be one of mixed law and . fact, and is so to be regarded. The questions to which reference is made, so far as they are directed to the end suggested, were proper.

VII. The testimony in this case was very voluminous, and numerous objections were interposed to the introduction of specified portions of it, (other than those to which we called attention,) on the ground of incompetency, irrelevancy and immateriality. We have very carefully considered each of the points made, and have reached the conclusion that some of them are well taken, and should be sustained. It does not seem essential, however, to take up and examine and pass upon the questions thereby presented, and for several reasons: 1st. In view of the conclusion reached in regard to the point already considered in this opinion, the case must go back for a new trial. 2d. Upon such new trial we cannot believe that those errors which we think were committed on the former trial, and to which reference is not made, will be at all likely again to occur; and 3d: In such last view of the matter, no practical good would result from our investigation, which would be commensurate with the task of going over the entire ground suggested upon the face of the record. And besides this, such investigation would for the most part be an examination into and an assertion of well-established and declared principles of law respecting the examination of witnesses and the introduction of testimony. It is also to be remarked in this connection, that while some of the questions which were objected to by counsel were no doubt improper, they were of such a character as to result in no particular injury to any one, and the mere fact of their being allowed would not therefore be a sufficient ground for a reversal.

8 undertaking wuty ó?praet!cing physicians and surgeons, VIII. But objections are also urged to the instructions which were given to the jury. We do not propose to discuss these instructions at length, or even to notice all of them; but shall content ourselves with calling attention to some which are especially objected to, and as to these with a single exception, more by way of general remark than by direct or particular examination. It is claimed that the fifth instruction which was asked and given in behalf of the plaintiff below, does not give the correct rule by which to determine the responsibility of the defendant in this case, and for the reason that standard of legal obligation imposed thereby would require of him extraordinary care and skill, an extraordinary amount of learning in his profession, and an extraordinary judgment. The objection is to a certain extent sustainable. The instruction was liable to be made the means of conveying to the minds of the jury an idea of the undertaking on the part of the surgeon, when he assumes the charge of a case, which the law does not justify. It was therefore calculated to injure the defendant, as requiring too much at his hands. As we understand the current of the decision, as to the undertaking and responsibility of a practicing physician and surgeon, it is to the effect, substantially, and may be stated as follows: He is never considered as warranting a cure, unless under a special contract for that purpose; but his contract, as implied in law, is, that he possesses that reasonable degree of learning, skill and experience, which is ordinarily possessed by others of his profession ; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes; and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not résponsible in damages for want of success, unless it is shown to result from a want of ordinary skill and learning, and such, as is ordinarily possessed by others of his profession; or, from want of ordinary care and attention. He is not presumed to engage for extraordinary skill, or for extraordinary diligence and care; nor can he be made responsible in damages for errors in judgment, or mere mistakes in matters of reasonable doubt or uncertainty. See 7 Foster, 460; 28 Maine, 97; 39 Maine, 155.

A careful consideration of the foregoing observations will show that the degree of learning and skill which the physician and surgeon holds himself out to possess, is that degree which is -ordinarily possessed by the profession, as it exists at the time, or cotemporaneous with himself, and not as it may have existed at some time in the past. It follows then, that the standard of such ordinary skill may now be in the advance of what it has been in the past, and according to the general and material progress made in the sciences of medicine and surgery. “ The standard of ordinary skill which is required of any physician and surgeon, it will be borne in mind, is that degree and amount of knowledge and science which the leading authorities have pronounced as the result of their researches and experience up to the time, or within a reasonable time before the issue or question to be determined is made. — (Elwell on Malpractice, 53.) And such physician and surgeon must in general be held to apply in his practice, what is thus settled in his profession. — (Id., 31.) There is nothing unreasonable in such requirement; audit is no more than that which is expected of the other professions. That which is pronounced as settled in any profession by the leading and standard authorities therein, is within the reach of any practitioner; and his being such practitioner, in general, presupposes the fact, and is guaranty on his part, that he is in possession of a knowledge of it as so settled. The ideas here advanced are not to be extended so as to embrace wbat may be known only to and practiced by the highest talent, but should be confined to that which is within the reach of, and may and should be attained by, the more common and ordinary class of practitioners. Regard also is to be had to the circumstances by which the different portions of any one profession may be surrounded, as affecting the question of their proficiency in, and knowledge of advances which may be made in their particular line, and the obligation to be up to such advance. The opportunities by reason of locality, or other circumstance, of one, portion, may be many times more favorable than ■ those of another; and the responsibilities resting upon them would be correspondingly greater.. This idea is illustrated by Elwell in his work on Malpractice, pp. 22, 23, where he makes the following observation : “ There are many neighborhoods, in the west especially, where medical aid is of difficult attainment. Yet cases of disease and surgery are constantly occurring, and they must of necessity fall into the hands of .those who have given to the subject but little if any thought. Thus, the inexperienced and the unlearned attend to the surgery in their way, or it is not attended to at all. * * * In such cases no more can be expected of the operator than the exercise of his best skill and judgment. In large towns and cities, are always found surgeons and physicians of the greatest degree of skill and knowledge. They are to be held to a corresponding high degree of responsibility. * * * In the smaller towns and country, those who practice medicine and surgery, though often possessing a thorough theoretical knowledge of the highest elements of the profession do not enjoy so great opportunities of daily observation and practical operations, where the elementary studies are brought into every day use, as those have who reside in the metropolitan towns, and though just as well informed in the elements and literature of their profession, they should not be expected to exercise that high degree of skill and practical knowledge possessed by those having greater facilities for performing and witnessing operations, and who are, or maybe constantly observing the various accidents and forms of disease. It will not therefore, as a general thing, require so high a degree of knowledge to bring this class of physicians up to the rule of ordinary knowledge and skill as in places where greater facilities are afforded by which higher professional knowledge is attainable.”

"We have remarked above as to the obligation of the physician and surgeon to apply correctly in his practice what is settled in his profession. But it is to be remembered that such application is not alone adequate to the management of the different cases, and the phases thereof which the practitioner may be called upon to meet. PTis best judgment is constantly appealed to, and upon such judgment he must rely. It is plain to the most casual observer that there is great room for difference of opinion in the exercise of the arts of surgery and medicine; and as a result, there are usually more ways than one of accomplishing the same thing, and each having its advocates as being equally efficient or even better than any other. “ Good judgments may differ;” and such being the case, as just remarked, the practitioner must use his judgment, and follow its dictates in all cases of doubt, or where they may be a foundation for such difference of opinion, and if he thus exercises such judgment in an enlightened and reasonable manner, he will not be responsible for errors. Elwell on Malpractice, 29.

But it is unnecessary to prolong this opinion by further discussion of the points suggested by the record, or by the argument of counsel. The case must be remanded for a new trial upon the grounds first adverted to herein ; and enough has been said as to the law governing cases of this sort, to indicate the opinion of this court upon the more important questions which are raised upon the instructions, and which may be presented on a re-examination of the case.

The judgment is reversed.

All the Justices concurring.