Jameson v. Weld , 93 Me. 345 ( 1899 )

Savage, J.

This is an action on the case for damages alleged to have been occasioned by the surgical malpractice of the defendant, who is a physician and surgeon. The defendant was called to attend the plaintiff a short time after she received injuries to her right elbow joint, and it appears that he diagnosed them as a fracture and a dislocation. That there was a dislocation of both the ulna and the radius is not questioned. That there also was a fracture of some bone or bones in the elbow joint is in dispute. The defendant insists that the evidence tends strongly to show the affirmative of that proposition. This controversy, however, relates to the dislocation. The plaintiff in her declaration makes no complaint of malpractice in the defendant’s treatment of any fracture. She alleges, rather, a want of proper skill and care on the part of the defendant in reducing the dislocation, which he undertook to do. It is, indeed, the present contention of the plaintiff that there were no fractures, that the defendant’s diagnosis was wrong, and that his treatment accordingly was wrong. But if the plaintiff is in error in this respect, it still remains necessary to inquire whether, there being fractures, the dislocation was treated with that reasonable degree of skill and care which the law imposes upon surgeons. The fractures, if any there were, are only important as bearing upon the condition of the elbow joint while being treated by the defendant, and as tending to show, with other things, that the defendant did or did not use reasonable skill and care under all the circumstances.

The defendant says that he reduced the dislocation of the ulna at the time he first treated plaintiff, but did not succeed in reducing the dislocation of the radius. He says that he attempted afterwards, from time to time, to secure a reduction of the latter dislocation, by manipulations and otherwise, but never succeeded. He also says that he discovered about a month after his first treatment that the ulna had come out of place again, in some way, and that he then attempted by all proper and reasonable means to replace it. This he was never able to do. And in this situation, both the radius and the ulna dislocated, the defendant, having occasion to be absent from town, left the plaintiff’s arm, after about eleven weeks from the injury. He called another surgeon to take his place, and this was done with the plaintiff’s consent. The defendant had nothing further to do with the case.

It would serve no good purpose to enlarge this opinion by any particular analysis of the evidence. No two cases of this sort are alike, and rarely are they so nearly alike that one ease is valuable as a precedent for another. There is much evidence of an expert nature that the treatment given by the defendant was the usual and proper treatment. This, of course, was largely based upon the testimony of the defendant as to what he found and what lie did. There is also medical testimony, on the other hand, that it was improper in some respects. The parties themselves, the plaintiff and the defendant, differ in their testimony, not so much in regard to the real condition of the elbow, for of that the plaintiff does not claim to know anything, nor in regard to the actual treatment, but with respect to the statements made by him to her from time to time, concerning the condition of the elbow and his knowledge of it. The defendant claims that he acted in good faith with the plaintiff, and that he fully and correctly explained to her the condition of the elbow, and the want of success he had experienced in trying to reduce the dislocation. On the other hand, the plaintiff claims that the defendant never told her of his failure in that respect, that he did not state to her the true condition of her arm, and the liability she was under of being seriously and permanently crippled in her arm, that he did not, in substance, fully apprise her of her situation, so that she might obtain other surgical treatment; but she says that, being inquired of by her in the ninth week of the treatment, he assured her that the dislocation had been reduced successfully the first time he treated her. Her statement, if true, does not of itself prove want of skill or care on the part of the defendant, but it does show a purpose to conceal from her the true condition, for some reason or other. It tends to show that the defendant himself was conscious, not only of failure, but of a failure for which he was responsible. And if her statement was believed by the jury, they were entitled to give it considerable weight, and undoubtedly did so, especially in view of the conflict of the medical testimony.

In addition to matters already stated, it appears that the defendant so treated the injury that when the elbow joint became stiff, the arm was extended nearly straight, and was useless. The plaintiff claims that the defendant improperly placed and left it in this position, Her contention is that, if the joint must be stiff, the proper way would have been to leave the arm flexed, so that it could be made somewhat useful, and that reasonable care and skill would have suggested this mode of treatment to the defendant. And whether the defendant used reasonable skill in this respect was one of the propositions before the jury.

Upon the whole, we find ourselves unable to say that the verdict of the jury, upon all the evidence, is clearly wrong. It is not enough that it may be wrong, or that the court might have come to a different conclusion. We think the evidence for the plaintiff, if believed, is sufficient to sustain a verdict, and that evidence does not seem to be inherently improbable. The defendant’s motion for a new trial must therefore be overruled.

In the course of the trial, the plaintiff was permitted, against the objection of the defendant, to exhibit her injured arm to the jury, and to this permission the defendant excepted. We think the exception cannot be sustained. The present condition of the arm is claimed' by the plaintiff to have been the consequence of the defendant’s want of skill or care. Such is the effect of her evidence. This is denied by the defendant. Whether it was so or not, or whether some cause for which the defendant is not responsible had intervened and made the arm worse than it otherwise would have been, were questions of fact to be submitted to the jury. In view of the plaintiff’s contention and evidence, we think it was clearly within the discretion of the court to permit the arm to be shown to the jury.

Within a week after the defendant had ceased attending her, the plaintiff was taken to a hospital for further treatment, and there, before anything was done to the arm, an X-ray photograph of the elbow was taken. This X-ray photograph was admitted in evidence, against the objection of the defendant, and exceptions were noted. The learned counsel for the defendant say that their objection lies not to the admissibility of X-ray photographs in general, but to the admissibility of this one in particular, which they claim is an exaggeration and a distortion. We think it is within the discretion of the presiding justice to admit an X-ray photograph. Whether it is sufficiently verified, whether it appears to be fairly representative of the object portrayed, and whether it may be useful to the jury, are preliminary questions addressed to him, and his determination thereon is not open to exceptions. Carey v. Hubbardston, 172 Mass. 106. We may add that an examination of the testimony and of the photograph does not show that this discretion was unwisely exercised in this case.

The defendant also has exceptions to certain portions of the charge of the presiding justice. He claims, in the first place, that certain testimony was inaccurately quoted to the jury. It appears by the report, however, that during the charge and before the case was committed to the jury, (with a single exception, to be noted later), no suggestion was made by counsel of any inaccurate statement in the charge, nor was any request made for a correction of any statement. An inadvertent misstatement of facts is not an “expression of opinion,” forbidden by the statute. Grows v. Maine Central R. R. Co., 69 Maine, 412.

It is the duty of a presiding justice to present to the jury the issues to be determined, and, in his discretion, to call attention to the differing contentions of the parties, and the evidence by which they seek to support them. If in doing so, he makes a misstatement of the evidence, his attention must be called to the error before the jury retires. Harvey v. Dodge, 73 Maine, 316; Smart v. White, 73 Maine, 332; Bradstreet v. Rich, 74 Maine, 303; State v. Fenla son, 78 Maine, 495. And attention must be called to the error specifically in order that it may be corrected. The rule is not for the convenience of presiding justices, but to prevent unnecessary and accidental mistrials. A mistake, like the misrecital of evidence, can be, and should be, corrected at once. It is not good legal policy, nor is it justice to parties litigant, to permit one to sit by and hazard the chance of a verdict, all the time reserving an easily correctible error, to be the basis of exceptions, in case of an untoward result with the jury. And for this reason, even if the presiding justice may not require exceptions to be specifically noted before the jury retires, as may have been the case in this instance, it is no less the duty of parties to call attention to errors of this kind before the case is committed to the jury. If counsel fail to ask for the correction of such errors at the time, it is to be presumed that they deemed them too trivial and unimportant for notice. The rule is not unreasonable nor unfamiliar. In fact, in this case, counsel did call seasonable attention to such an alleged error. There was evidence that the defendant in the course of his treatment of the elbow, used iodine or ointment upon it to allay the inflammation. In alluding to this evidence, the presiding justice made use of the expression “lubricating or pungent liniments,” and to the use of the word “pungent” the defendant objected, and called attention to it before the jury retired. It may be that the use of the word “pungent” was inaccurate, but we are unable to see how it could have been prejudicial.

The defendant next urges that a portion of the charge is exceptionable, because it is virtually an “expression of opinion ” concerning the credibility of a witness, and so a violation of R. S., c. 82, § 83. Dr. Rowe, the surgeon in whose charge the defendant left the plaintiff, was a witness for the plaintiff. He testified that the defendant did not communicate to him the fact that there had ever been a dislocation, and that he only ascertained that fact by his own examination. This was denied by the defendant, who claimed also that Dr. Rowe, in his professional conduct in this case, and in his testimony at the trial, was actuated by unfriendly and malicious motives. Upon this subject, the presiding justice said: — “Then, at that period, the defendant leaves the patient and calls another physician to take charge of her. The other physician comes, and he says that he was not told of the dislocation. On the other hand, Dr. Weld says that he was, and there are various pieces of testimony tending to substantiate the story of one or the other. Dr. Rowe, the physician called, having found the arm in the condition I have described, declined to follow the treatment which Dr. Weld had been following, and which it was suggested that he should follow, but he considered it his duty to immediately inform the patient of the condition of things and to give her an opportunity to be removed to a medical hospital where she might be treated. Much criticism has been made of Dr. Rowe in this regard, for not following out the treatment which was suggested to him by Dr. Weld. But, gentlemen, you must bear in mind that when Dr. Weld left the patient and substituted Dr. Rowe, Dr. Rowe could not justify himself by following and acting simply upon the skill and knowledge which Dr. Weld had, because he, again, was required to exercise his best skill and judgment and to act with absolute fidelity, and if he considered it was his duty, ■ under all the circumstances, in order to benefit his patient, to give her the benefit of hospital treatment, it is hard for me to say his conduct can be censured for doing so. But it is said by the defendant that his motive was to involve Dr. Weld in the charge of malpractice, that he did this maliciously. Well, gentlemen, no matter what his motive was, no matter if it was malicious; if he acted prudently and wisely, as his judgment told him it was best for him to act, and best for his patient, he was justified in doing it; and whether he did it for one purpose or another only bears upon the question as to how far he is a partisan, and how far he is prejudiced and how far he could be led to misstate, to distort, or to color, the facts of the case. You saw him and you heard him testify; and he frankly, so far as I saw, told you what he did. There is much controversy about his motives. So far as anything that has been said would give you reason to discredit the truth of what he has said, that, gentlemen, is competent and proper for you to take into consideration.”

The first expression claimed to be objectionable is, — “if he considered it was his duty, under all the circumstances, in order to benefit his patient, to give her the benefit of hospital treatment, it is hard for me to say his conduct can be censured for doing so;” and the second is, — “You saw him, you heard him testify; and he frankly, so far as I saw, told you what he did.” The general objection is that the credibility of the witness being in issue, the comments of the justice presiding were calculated to impress the jury as an indorsement of the witness, that to some extent, at least, the court vouched for him. It is beyond question that the credibility of a witness is for the consideration of the jury, and not the court. At the same time it is equally clear that it is the duty of the court to see that the testimony of a witness is fairly presented to the jury. Here was the case of a witness whose credibility was put in question, and to do that, his conduct and his motives were assailed. Such a proceeding, so far as it is logical and reasonable and based upon the evidence in the case, is legitimate. But in the heat of argument it frequently happens that positions are taken, or arguments are used, which are not warranted by tbe facts. In such a case, we think it is quite within the province of the court to call the attention of the jury so far to the merits of the particular controversy that they may be able to perceive the true issue, and the legitimate bearing of the arguments which have been addressed to them. It is the duty of a court to see that cases are tried upon true issues, and thus to aid in securing true results. We do not think the justice presiding exceeded the discretion confided to him. State v. Day, 79 Maine, 120; York v. Maine Central R. R. Co., 84 Maine, 117. We can only infer what the' criticism was to which allusion is made, but we cannot assume, in the absence of knowledge, that the remarks of the presiding justice were unfounded.

Finally, exception is taken to a comment concerning the value of expert testimony as found in the following excerpt from the charge: “Now, there have been a large number of professional gentlemen called here, who, until they were called here, knew nothing more about this case than you or I. They did not see it, and they have never seen it so far as I know. They are called, not in one sense, to testify to facts within their knowledge, but they are called to testify to scientific facts within their knowledge, and to express opinions. And you must bear in mind that, where their opinions are taken, there is given to them an assumed state of facts, an assumed condition, on which their answers are based; and if the assumed condition be untrue or inaccurate, then, of course, their answers were inaccurate, and neither one of these learned gentlemen would wish the jury to take their answers except as based upon the conditions which were presented to them. Now, they have told you what would be good surgery and what would not be good surgery; and they have asserted that if one man’s account was correct it was sufficient, that if another man’s account is accurate, perhaps it would not be. So, gentlemen, so far as their opinions go, you will take them and consider them for what they are worth. But above all, in this case take the testimony of the witnesses who were actors in it; take the testimony of the plaintiff, as she has described her condition, her treatment, her feelings, her talk. Take the testimony of the doctor, as he has told you what he did, how he acted, how he felt and what he hoped, and if, on the whole, the plaintiff has satisfied you by a preponderance of evidence, she is suffering an injury from the doctor’s want of the requisite skill, that is, want of ordinary skill, to treat her case, which the law required him to have, or from the want of proper care, and for negligence after he undertook her treatment, or for the want of good faith in not giving her sufficient knowledge to give her an opportunity to change the treatment, if she desired; — then, gentlemen, for any of those things of which she satisfies you, by a preponderance of the evidence, she is entitled to recover compensation; — that is, an equivalent for the injury suffered at the hands of the defendant.” Objection is made to the sentence: “So far as their opinions go, you will take them and consider them for what they are worth.” But we think that this portion of the charge taken as a whole is unexceptionable. The justice had already pointed out that the opinions were necessarily based on “an assumed state of facts, an assumed condition,” and that if the assumed condition was untrue or inaccurate, “ then, of course, their answers were inaccurate; ” that the experts had told the jury what would be good surgery, and that if one man’s account was correct, it (the surgery) was sufficient, and that if another man’s account was accurate, perhaps it would not be. This was proper, and was, we think, saying in effect, all that was afterwards put into words, that the opinions must be taken “for what they were worth.” They must be considered “for what they were worth” in connection with the accuracy or inaccuracy of the assumed conditions upon which they were based, as the jury might find them. We do not think the jury could have understood the expression to mean more than that.

The other exceptions are not pressed.

Motion and exceptions overruled.