Challis v. Lake , 71 N.H. 90 ( 1901 )

1. The hypothetical question addressed to the expert., Dr. Galvin, was unobjectionable. Upon an assumed statement of facts, suggested by the evidence, he was asked, in substance, what in his opinion ought reasonably to have been done by the attending physician; that is, what treatment a reasonably skillful physician would have adopted in such a case. The competency of the question is so apparent as to admit of no serious discussion. Spear v. Richardson, 37 N.H. 23, 24; Perkins v. Railroad,44 N.H. 223; Wells v. Iron Co., 48 N.H. 491, 513, 540.

2. The defendant's exception to the question addressed to him on his cross-examination, whether he had a license when he attended Mrs. Challis, was general in its character and related to the admission of the evidence for any purpose. No exception was taken to the court's instruction to the jury, that they might consider this evidence on the question of the defendant's skill and not on the question of his negligence. If it were conceded that affirmative evidence of that character could have no legitimate bearing on the question of his professional skill, and that the instruction was erroneous, the defendant, having taken no exception to the charge upon this point, has no legal ground to complain of the admission of the evidence, if it was competent for some other purpose. Its use was not limited by the court to the single issue of the defendant's skillfulness; and presumably counsel made use of it in argument for all legal purposes under the ruling of the court. It was admitted as evidence to be considered by the jury upon all points upon which it had a legal bearing, excluding only its relevancy, if any, upon the question of negligence. If it was competent for some other purpose than to prove the defendant's unskillfulness or his negligence, his exception to its admission cannot be sustained.

In defence to the action, he claimed and testified that he had had much experience before 1899 in the practice of medicine, that he was an ordinarily skillful physician, and that he had practiced his profession in this state since 1892. On the other hand, the plaintiffs denied these claims and insisted that he was an incompetent practitioner, not possessing the ordinary qualifications of a reputable physician. To discredit his testimony, it was within the legitimate range of cross-examination, at least, for the plaintiffs to prove by his admission on the stand that he did not have a license, obtained after an examination as to his medical knowledge, to practice medicine in 1899, as required by law. Laws 1897, c. 63. That fact, if unexplained, would afford ground for the argument that his testimony as to his qualifications was entitled to little weight. Gutterson v. Morse, 58 N.H. 165; Perkins v. Towle, 59 N.H. 583; Spalding v. Merrimack, 67 N.H. 382; Lesser v. Furniture Co., 68 N.H. 343. The evident purpose of the statute was to prevent incompetent persons from practicing medicine and imposing upon the credulity of their unsuspecting patients. Gage v. Censors, 63 N.H. 92, 94; State v. Hinman, 65 N.H. 103. The expert testimony of a physician who has not complied with the statute and obtained a license might not be entitled to as much weight as it would otherwise receive, and the degree of credibility attached to it by the jury would often depend very much upon the reason he might assign for his non-compliance with the statute. If he honestly believed that for some reason he was exempted from a compliance with the statutory provisions, the fact that he did not have a license might have little weight upon the question of the soundness of his expert testimony. Hence the admissibility of the evidence adduced on cross-examination in disparagement of his credibility as a witness cannot be doubted.

It does not appear that the defendant gave any reason at the trial for his omission to obtain a license, but he now suggests in argument that the statute is obnoxious to the constitution and is therefore void. This contention, however, is immaterial. The question of the validity of the statute is unimportant in the present controversy. Whether it is void or not, it was competent for the jury to consider the defendant's unexplained omission to obtain a license, upon the question of the reliability of his testimony. The reason of his omission may have been that he was unable to pass the required examination, or that he failed on some ground to satisfy the regent and the board of examiners that he was entitled to a license or to registration as a physician. Such a reason, if true or if believed by the jury, would have the same logical and legal effect in disparagement of his direct testimony, whether the statute were constitutional or not.

It is also suggested that under the statute he was not obliged to pass an examination and procure a license, since he had been in practice in this state previous to the passage of the act, and was, therefore, exempted from that duty by section 13. But the length of his practice in this state was a controverted fact, and whether it afforded a sufficient excuse for his non-compliance with the statute was a question for the jury to determine.

3. No error appears in the exclusion of the defendant's question addressed to the expert witness. Whether the witness had previously answered a hypothetical question relating to the method of treatment in similar cases, or whether he had obtained any knowledge in regard to the defendant's method of treatment of Mrs. Challis, the case does not disclose. It does not appear that the witness had knowledge of any facts, hypothetical or actual, upon which an opinion could be based. Rog. Ex. Test. 36, 37.

4. The two nurses were not allowed to testify how the defendant's treatment in cases of this character differed from that of other physicians, and in this there was no error. For, while they had nursed in cases where the defendant had charge and in cases where other physicians attended, the proposed testimony may have been excluded on the ground of remoteness. There is nothing in the case indicating that such was not the fact. Whether it might not have been properly excluded on other grounds, it is unnecessary to decide.

5. The first instruction requested by the defendant is based upon the relative merits of two systems or schools of medicine, and as the case does not show that there was any evidence upon that subject to which the proposed instruction could apply, it was properly denied. "Before the court can be required to give particular instructions, there must be evidence, relevant and pertinent, upon which to found them." Goodrich v. Railroad,38 N.H. 390, 397; Hersey v. Hutchins, 70 N.H. 130.

6. The defendant claims that the jury were not properly cautioned against founding a verdict upon guess-work, and for that reason he insists that his second request for instructions should have been granted. Presumably, the jury were properly instructed as to the burden of proof, and there is nothing in the case to indicate that there was any occasion for the instruction requested. The court "is not bound to instruct the jury upon an abstract proposition." Woodman v. Northwood, 67 N.H. 307, 309.

7. The instruction on the question of damages was correct. Loss or injury to the plaintiffs directly and naturally resulting from the defendant's fault or negligence in his treatment of Mrs. Challis was the legitimate measure of the damages the plaintiffs were entitled to recover. Leighton v. Sargent, 31 N.H. 119, 136. The defendant's liability is not confined merely to damages for injuries which an ordinary man might have expected would follow from the negligence proved, but includes damages for such injuries as are the direct and natural result thereof as disclosed by the evidence.

Exceptions overruled: judgment on the verdict.

All concurred.