McClarin v. Grenzfelder

GOODE, J. (after stating the facts). — Though the petition avers defendant advertised he could cure hernia in thirty minutes without cutting and plaintiff employed him to treat and cure plaintiff and defendant undertook to do so, it does not declare on the alleged promise, say the hernia was not cured nor ask damages for failure to cure it. The gravamen of the case presented is “defendant so negligently and unskillfully conducted himself in and about treating said hernia, that through and by reason of his negligence and unskillfulness, plaintiff was made exceedingly ill and his life placed in danger, so that it became necessary for him to go to a hospital and undergo a painful and dangerous surgical operation to preserve his life and restore him to health;. . . that defendant in his attempt to cure plaintiff, negligently and carelessly injected- into the parts affected a preparation which formed a waxy substance and resulted in an inflammation of the intestines, necessitating an operation for the saving of the life of plaintiff.” Eirror is assigned for the court’s refusal to direct a verdict for defendant, the contention being there was no proof his treatment of plaintiff was improper, or, if it was, that it induced the peritonitis plaintiff suffered from months afterward. The affirmative of those [487] issues is supported by scanty evidence and we wish more light bad been sbed upon tbe case by tbe testimony of experts. Defendant and another physician who aided him in tbe first treatment of plaintiff gavev testimony which tended to prove tbe method was both proper and skillfully administered; Taken in its entirety tbe testimony of Dr. Shanklin, who was tbe only expert introduced by plaintiff, points rather weakly to tbe conclusion that tbe paraffine in tbe abdominal cavity caused tbe peritonitis. Doubt is east on this theory by tbe paraffine not being in contact with tbe peritoneum, and tbe complete cure of tbe peritonitis before tbe paraffine was removed. Moreover, tbe injection of it, if a regular and approved method of treating tbe ailment, would not necessarily lay defendant liable even if it induced the peritonitis, for untoward results sometimes follow tbe most scientific surgery. On tbe whole more evidence on tbe main issues of fact is desirable, but as there was proof tbe peritonitis might have been caused by tbe wax, and some evidence tending to prove tbe injection of it was not a right way to treat hernia, we endorse tbe submission of tbe case to tbe jury. In one aspect tbe instructions were too favorable to defendant and in another were likely to mislead tbe jury to bis detriment. Because .defendant held himself out as an expert in tbe treatment of bernia, tbe law required-him to treat plaintiff with tbe skill and care commonly shown by physicians and surgeons in St. Louis and cities in advance or abreast of it in tbe practice of medicine and surgery, who devote special study to tbe treatment of tbe disease; that is to say, tbe proficiency and skill of hernia specialists; not meaning by this designation only physicians who treat that disease exclusively, but also those who by special study and experience probably have acquired more accurate knowledge of tbe right methods of treatment than is possessed by general practitioners of medicine. [5 Thompson, Negligence, section 6714; McMurdock v. [488] Kimberlin, 23 Mo. App. 523, 531; Rann v. Twitchell, 20 L. R. A. (n. s.) 1030.] And in ascertaining whether the requisite shill and care were employed in a given case, contemporary knowledge of the ailment and how to relieve it are considered. [Rann v. Twitchell, supra; Gillette v. Tucker, 67 Oh. St. 106, 93 Am. St. Rep. 639, 660, note b.] If expert practitioners of defendant’s school concurred in opinion about the right method of treating hernia and defendant adopted a method not recognized as sound, then, according to courts which have passed on the question, his conduct should be regarded as an experiment which renders him liable if it injured plaintiff in the way alleged; that is, caused peritonitis. [Carpenter v. Blake, 60 Barb. 488; Patten v. Wiggin, 51 Me. 594; Jackson v. Burnham, 20 Colo. 532, 1 Colo. App. 237; Pike v. Honsinger, 155 N. Y. 201, 210; Allen v. Voje, 114 Wisc. 1; Whitesell v. Hill (Ia.), 37 L. R. A. 830, 836, note 6.] But if defendant’s system of treatment was recognized as proper, then, though there were other systems recognized as proper, he cannot be convicted of negligence if he made use of the one he deemed most suitable for plaintiff’s case. [Wells v. Medical Assn., 9 N. T. S. R. 452.] In such a condition of medical science, the question of defendant’s responsibility would turn on whether he administered the remedy preferred by him with the degree of care and skill required of a person holding himself out as an expert. What we are dubious about is whether the evidence for defendant conduced to prove the treatment he used was recognized by the experts of his school as proper for the relief of hernia. That it was of comparatively recent origin ought not, ipso facto, to put it in the class of innovating experiments, so as to lay the defendant liable for a bad result, even though he displayed reasonable skill and care in the manner of applying it. This is true because some of the most approved systems of treatment, like antitoxin for [489] diphtheria,, met with general acceptance by the medical profession a few years after their discovery. We conclude there was enough evidence for defendant on this point to remit it to the jury. The theory carried through the instructions was that defendant was only required to possess and exercise the skill and care exercised by physicians of ordinary skill and ability in localities like St. Louis, whereas we think he was bound to exercise ¿±e care of a specialist, and that the propriety of his treatment was to he determined with reference to the practice and approval of specialists. It may he the system was recognized, approved and used by physicians who had kept pace with scientific progress in relieving hernia, hut “was a method or manner of treatment not used by physicians and surgeons of ordinary care and skill,” as the first instruction reads. We have not found any proof in the record plaintiff was permanently injured by defendant’s treatment and unless on another trial there is such evidence, it would be well to omit in the instruction on the measure of damages, reference to permanent injury. The judgment is reversed and the cause remanded. All concur.