Saltzer v. Reckord

I cannot agree with the opinion of the majority. In the first place, the verdict for plaintiff requires that the evidence be viewed in the light most favorable to him. The majority's substantial reliance upon the testimony produced by defendant is therefore wholly unwarranted. Plaintiff placed himself in defendant's care during the examination, and he was entitled to be treated not only with such reasonable skill and diligence as is ordinarily exercised in the medical profession at the time and place but also with the reasonable care required of everyone. Plaintiff's testimony discloses that he told defendant of his feeling faint, and that thereupon defendant, after administering aromatic spirits of ammonia, placed him on a stool, without support, facing in the direction of and not more than three or four feet from a three-quart sterilizer filled with boiling water, and pushed his head down. It seems to me to be clear beyond any doubt that a jury could reasonably have found from this evidence that defendant should have foreseen the likelihood of plaintiff's falling from this stool, knocking down the sterilizer, and being injured by the boiling water. Whether plaintiff fainted or suffered a convulsion was for the jury to decide, particularly in view of the testimony in plaintiff's behalf that after the accident defendant said plaintiff had fainted. The evidence was plainly sufficient to support a finding that defendant failed to exercise the ordinary care which he should have used under the circumstances.

The principal ground on which the majority opinion appears to be rested, and on which the court below based its decision, is that plaintiff was required to show an absence of the reasonable skill and diligence ordinarily exercised in the medical profession, and that plaintiff's case must fail because he called no physician or other expert to testify that the treatment and care given plaintiff were not in accord with modern medical practice. But surely it was never intended that the rule as to the professional duty required of a physician should lower the standard of care to be imposed upon persons of that class or relieve them of the duty of ordinary care under which all others are placed. The negligence here alleged arises from no improper diagnosis or treatment or any other conduct involving the exercise of professional skill, but simply from defendant's failure to realize the danger of placing one in a fainting condition on a stool, without support, so close to a container full of boiling water. As was said in Laughlin v. Christensen, 1 F.2d 215, at page 217, "The reason for the rule, that in certain cases testimony of experts is indispensable to establish negligence, is that, in order to reach an intelligent conclusion on the question of negligence in those particular cases, a scientific exposition of the subject under consideration is obviously necessary; but when the reason for the rule ceases the rule itself ceases." Clearly, no scientific knowledge was necessary to determine defendant's negligence in the case at bar; and when such knowledge is not needed, the absence of expert testimony as to a defendant's negligence does not defeat the plaintiff's recovery, although the accident occurred in the course of professional treatment: Laughlin v. Christensen, supra; Vergeldt v. Hartzell, 1 F.2d 633; see Evans v. Roberts,172 Ia. 653, 660; Toy v. Mackintosh, 222 Mass. 430; Benson v. Dean, 232 N.Y. 52; Wharton v. Warner, 75 Wn. 470, 475. In my opinion the evidence is undoubtedly adequate to warrant a finding of negligence in the light of the jurors' own knowledge and experience, without expert assistance.

In Hogan v. Clarksburg Hospital Co., 63 W. Va. 84, a case not unlike the one before us, the plaintiff, who was subject to epileptic fits, was taken to the defendant's hospital while suffering from a fit, and was left alone in a room with an open gas fire. When later found, he was badly burned. It was held that plaintiff's evidence should have been submitted to the jury, the court pointing out that "That which is complained of in this case is not the wrong or unskillful application of remedies but the neglect to give that reasonable and ordinary care and attention which was needed and due to plaintiff after being received into the hospital at the hands of the employees of the defendant." If hospital attendants may be found negligent in leaving an epileptic patient unattended within reach of an open fire, it would seem that a physician who, although warned of his patient's fainting condition, places him on a stool, without support, as close to boiling water as was here done, might similarly be found guilty of a want of due care.

For these reasons I would reverse the judgment of the court below and enter judgment on the verdict.