Biancucci v. Nigro

DeCourcy, J. This is an action of tort to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence in administering an anesthetic. The intestate, a girl about ten years of age, received a small wound on the right thumb; and the defendant inserted three stitches, after using chloroform as an anesthetic. The child died without recovering consciousness. The contention of the defendant was that the death was due to the presence in the body of the intestate of an — 43 — abnormally enlarged thymus gland. There was a verdict for the defendant. The plaintiff’s exceptions relate to the admission and exclusion of testimony. 1. Subject to the plaintiff’s exception, Dr. McGrath, a witness for the defendant, was permitted to testify to an examination of the body of a thirteen year old girl, who had been brought to a hospital for the removal of enlarged tonsils and adenoids; and to state that her death “was due to syncope under the influence of a general anesthetic administered for surgical purposes in the presence of a fifty gram thymus gland.” The defendant’s contention that evidence of this collateral fact was admissible as “ a similar instance ” cannot prevail. An inference that the death of the plaintiff’s intestate was due to the influence of chloroform in the presence of a thymus gland weighing fifty-one grams or about one and two thirds ounces could not properly be drawn from the mere fact that another child, of thirteen years with a fifty gram thymus gland, died from the influence of a general anesthetic administered for surgical purposes. It does not appear that the conditions or circumstances, such as the health of the child, the amount of anesthetic administered, and other conditions affecting the result, were the same in the illustrative case and in the case in hand. Wigmore on Ev. (2d ed.) § 442. Emerson v. Lowell Gas Light Co. 3 Allen, 410, 417. Compare Hunt v. Lowell Gas Light Co. 8 Allen, 169, 171. Baxter v. Doe, 142 Mass. 558. The defendant now further argues that the evidence in question was admissible as the reason on which Dr. McGrath formed his opinion. But it was not offered on that ground. On the contrary the doctor expressly disclaimed any experience in the administration of anesthetics, and testified that “he had had no experience in recent years with a five human being so far as the use of chloroform or ether is concerned.” It is apparent from the record that this testimony was likely to have weight with the jury, because the other physicians called by the defendant disclaimed any special knowledge as to thymus gland diseases and the effect of chloroform on those suffering therefrom. We are of opinion that it was incompetent, and the exception to its admission must be — 44 — sustained. Hunt v. Boston, 152 Mass. 168. Commonwealth v. Tucker, 189 Mass. 457, 479. 2. The other exceptions are to the exclusion of certain qualifying questions which the plaintiff's counsel put to his witness Dr. DeAmezaga, and to the ruling of the trial judge that the witness was not qualified to answer as an expert. It is difficult to understand why some of the questions were excluded, since they related directly to the medical experience of the witness, his knowledge of the use of chloroform, and his study of the thymus gland. These however become immaterial if said ruling was correct. From a reading of the record it would appear that Dr. DeAmezaga might well have been permitted to testify as an expert. But as the judge had an opportunity to observe the mental capacity of this witness (who had suffered a severe injury within a few years), and to form an opinion of the credibility of his testimony, we are not quite prepared to say that in deciding whether the witness was qualified to give expert testimony there was such an abuse of judicial discretion as to constitute error in law. Jordan v. Adams Gas Light Co. 231 Mass. 186, and cases cited. Old Colony Trust Co. v. DiCola, 233 Mass. 119. Exceptions sustained.