Branner v. Stormont

The opinion of the court was delivered by Brewer, J.: This was an action for • malpractice. The cause alleged was the unskillful and negligent treatment of a compound fracture of plaintiff’s leg. Verdict and judgment were for the defendants. None of the testimony is preserved, it being stated in the bill of exceptions simply that plaintiff offered testimony tending to prove the allegations of his petition, and the defendants’ testimony tending to disprove them. The case is before us therefore only upon the instructions, and as to them it nowhere appears that all that were given or refused are preserved in the record. The main questions presented by the instructions have but recently been before this court, in the case of Tefft v. Wilcox, 6 Kas., 46, and the views therein expressed seem decisive of this case. The court gave this instruction: “ The law required the defendants to possess and employ that degree of skill which ordinarily characterized the profession at the time they treated the limb; and if you find that such injuries resulted from want of such skill the defendants arc liable.” And the court refused this instruction asked by the plaintiff: “ It is the duty of the attending surgeon to exercise such reasonable skill and diligence as thoroughly educated surgeons ordinarily employ; and in judging of this degree of skill in a given case, regard is to bo had to the advanced state of the profession at the time.- In other words, it is the duty of every artificer to exercise his art rightly and truly as he ought, and this is peculiarly the duty of professional practitioners to whom the highest interests of man are often necessarily entrusted.” If the instruction given stated the-law fully and correctly, the court Avas under no obligation to restate that laAV in the same or different language simply because requested. One statement is enough. A refusal to. repeat is no error. That the instruction given stated the law correctly cannot at this late day be questioned. Reason [55] able care and skill is the measure of obligation created by the implied contract of a surgeon, lawyer, or any other professional practitioner. “ His contract as implied in law is, that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes, and that he will use his best judgment in all cases of doubt as to the proper course of treatment.” Tefft v. Wilcox, 6 Kas., 61; Bauer v. McCarty, 3 Kas., 241; McCandless v. McWha, 22 Penn. St., 261; Leighten v. Sargent, 7 Foster, 460; Howard v. Grover, 28 Maine, 97; Simonds v. Hewey, 39 Maine, 155. The instruction refused was framed by uniting detached sentences in the opinion of the court in the case above cited from 22 Penn. St., 261. That case laid down the rule as above given of reasonable skill and diligence. Perhaps the instruction carefully analyzed does no more than affirm this rule. If so, then as wo have seen it had been already given to the jury. But there are some expressions in it which seem to carry the idea of a higher obligation; some at least which would be apt to convey such an impression to a jury. If told that it was the duty of a surgeon “to exercise his art rightly and truly,” they might reasonably understand that he was required in any given case to use such treatment as the circumstances of that case demanded, and that a failure to use such treatment was a breach of duty. This too without reference to the cause of such failure, whether mistake of judgment, want of the highest skill, or otherwise. Under these circumstances it was the duty of the court to avoid the use of language which was apt to mislead, and to use only that which plainly and clearly declared the rule. Of some of the other instructions refused, we are unable to see whether they are applicable to the facts of the case as disclosed by the testimony, and of course cannot say whether they were properly or improperly refused. Of such character is the one that it is the duty of a patient to submit to such treatment as his surgeon prescribes unless he thereby perils [56] his health or life. Whether this be correct or not is immaterial. For though correct, it may have been properly refused because there were no facts developed in the testimony which called for any expression thereof. It is objected that the true measure of damages was not given in the instructions. But the jury never reached the question of damages; and if there be any error in this respect it has wrought no prejudice to the plaintiff. The judgment will be affirmed. All the Justices concui-ring.