Olmsted & Bailey v. Gere ( 1882 )

Mr. Justice Sterrett

delivered the opinion of the court, October 2d 1882.

In January, 1819, the plaintiffs in error, partners in the practice of medicine and surgery, undertook to treat the defendant in error for a compound comminuted fracture of the lower third of the tibia and fibula; and, after attending him professionally for about ten weeks, they were discharged. The injury, which was a very serious one of the kind, caused by his being run over by a loaded wagon, was followed by necrosis of the bone. After protracted treatment the limb was saved, but in such a shortened and deformed condition as to partially deprive him of its use. It was contended in the court below that the plaintiffs in error were negligent and unskillful in their treatment of the injured limb, and by reason thereof it was not as fully restored as it should have been, and the personal suffering of the defendant in error was unnecessarily increased. Testimony tending to prove these allegations was introduced. The questions of fact thus presented were exclusively for the jury, and no complaint is made of the manner in which they were submitted : but, it is claimed there was error both in the admission and rejection of testimony' which had an important bearing on the questions before the jury. The specifications of error are restricted to these points.

It is a sufficient answer to the first assignment to say that the question propounded to Dr. Ainey was not proper cross-examination. He was not called or examined in chief as an expert, nor was he asked to give a professional opinion on the facts to which he testified. If the defendants below had desired his opinion as an expert, they had an undoubted right to call and examine him as such, but it would have been irregular for them to interject their defence in the manner proposed. For a similar reason there was no error in the ruling complained of in the second specification.

The third assignment was not pressed, nor indeed could it have been with any prospect of success. Before the witness, Dr. Ford, was asked to give his professional opinion as to whether the fractured limb had been skillfully or unskillfully treated, he had testified that he graduated in 1860, from the College of Physicians and Surgeons in New York, and subsequently served as surgeon in the army for nearly three years; that he had examined and treated the injured limb, after the plaintiffs in error were discharged from the case, and explained the condition in which he found it, etc. In view of this evidence, proving his competency to testify as an expert, the court wa3 clearly right in overruling the objection.

The fourth and fifth assignments are not sustained. The testmony complained of in the former was both competent and relevant. The declarations of Dr. Blakeslee, referred to in the latter, were clearly inadmissible. He could have been called to testify that the treatment of the injured limb was “ right and proper,” but it was not competent to prove his declarations to that effect, whether made in the presence of the plaintiff below or not.

The sixth to ninth assignments, inclusive, relating to the refusal of the court to permit Dr. George Burr to' answer the questions therein specified, may be considered together. Dr. Burr had examined the injured limb and had heard the witnesses testify as to the manner in which it had been treated by Dr. Bailey, one of the defendants below. He was then asked to give his opinion, as an expert, based on the testimony he had Iieai’d and his own knowledge of the case, as to whether it had been skilfully or unskillfully treated. He was also asked to state, “ whether or not the limb is in as good condition and the results are as good as the average run of bases of compound comminuted fracture of the leg that are treated in a skillful manner by skillful physicians.” The next question was: “In cases of compound comminuted fracture of the limb, followed by necrosis of the bone, state whether or not there is almost always great deformity ?” It is contended the court erred in excluding the testimony sought to be elicited by these questions and that covered by the seventh specification.

The injured limb, evidently somewhat deformed, was shown to the jury, and the course of the treatment, to which it had been subjected, was fully described by the witnesses. The inference, sought to be drawn therefrom, was that careless and unskillful treatment was the cause of the deformity. Hence, it was vitally important for the defendants to satisfy the jury that such was not the case; that, on the contrary, the condition of the limb, as exhibited to them, was the result of the severe injury the plaintiff received, followed, as such injuries frequently are, by necrosis of the bone; that the limb was in as good condition as could ordinarily be expected in such a case, when properly treated by a skillful surgeon. In determining whether a disease or an injury has been treated with proper care and skill, courts and juries must depend mainly on the testimony of experts; and considerable latitude must necessarily be given in the examination of such witnesses, and in propounding hypothetical questions for their opinion. The testimony proposed was competent and the witness should have been permitted to answer the questions-embraced in the sixth, eighth and ninth specifications. We can not say the error was fully cured by subsequently permitting the same witness to answer the question, “what are the general results of compound comminuted fracture of the leg when treated with skill ?” His answer to that general question indicated that his response to the other more specific questions would probably have been favorable to the defendants on the point most vital to their defence. The seventh, tenth and eleventh assigments are not sustained.

Judgment reversed and a venire facais de novo awarded.