
    Harry W. Link, an Infant, Resp’t, v. Jay W. Sheldon et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 29, 1892.)
    
    1. Physicians—Malpractice.
    In an action against physicians for malpractice in setting an arm, it was shown that plaintiff sustained what is known as “ Colles’ fracture,” and after defendants had treated it for several days with a metallic splint, Dr. D. was called in and found bandaging which was claimed to have been too tiglit, and in the healing, through inflammation and resultant suppuration, the thumb was drawn in and the hand deformed. Rcld, that it was not necessary in order to sustain the action that there should have been proof of gross culpability upon the part of the defendants. _ It was sufficient to warrant a verdict against them that there was. evidence of any failure oti'their part to exercise proper care, or of any neglect in the discharge of the duty they had assumed towards the plaintiff.
    2. Same—Charge.
    Defendants requested the judge to charge that " if the jury find from the evidence that the position and stiffness of the thumb was caused by the abcess spoken of by Dr. D. in the palm of the hand which was not opened by him, but, allowed to gather and break and destroy the muscles and tissues in that vicinity, the defendants are not liable _therefor.” He had just charged that the verdict could not be for the plaintiff if the evidence satisfied the jury that the treatment of Dr. D., after he took charge,, was not proper, and that want of proper practice on his part had contributed to bring about the condition of the hand, and also that defendant must recover if it was just as probable that the injury was caused by the original injury, or by subsequent manipulations and treatment of Dr. D. and others, as from the pretended tight bandaging, and declined to charge as requested. Held, no error. - p
    3. Same—Evidence.
    An expert witness should be confined to questions ¿which contain in. themselves the facts assumed to be proven and upon which his opinion, is desired.
    ■ 4. Same.
    While it is competent to testify to the proper practice in certain kinds of cases, as pursued from study or established by experience, it is quite immaterial and irrelevant what, in the cases defendant had had in the course of his practice, the general results had been.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment entered upon a verdict in favor of the plaintiff at the circuit.
    
      T. K. Fuller, for app’lts; Wm. Nottingham, for resp’t.
    
      
       Affirming 45 St. Rep., 165.
    
   Gray, J.

The action was brought against certain physicians,, to recover damages for their unskillfulness, or their negligence, in the treatment of the plaintiff for a fracture of tfle bones of his right fore arm, whereby his hand was permanently deformed in part, and a verdict was recovered of $4,000; which recovery the general term has affirmed. .The apparent severity of the verdict; the nature of the issue, which involved the question of the competency of defendants as medical practitioners, and the earnestness with which the appellants have insisted upon the commission of errors upon the trial, have caused us to carefully examine and consider this record and its questions.

Although the plaintiff has shown that he may permanently suffer from a crippled ” hand, we, nevertheless, think that there was enough before the trial judge and the court at general term, in the nature of the accident, in , the conflict of professional opinions as to the treatment, and in the possible doubt which overhung the case, that the distortion of the hand was not wholly due to the malpractice charged against defendants, but might have resulted in any event, as,to have justified an interference with thq verdict on the ground of its excessiveness. There was latitude for the entertainment of a doubt concerning the treatment of the case and the final result complained of, which would not have subjected a reduction of the recovery by the general term to criticism, as being without adequate grounds. The practice of surgery must always admit of some doubt as to ulterior complete success. But, however that may be, the decision of the tribunals below in that respect is final; the doubt was resolved adversely to defendants and this court is without power to review the determination as to the” amount of the damages awarded. Oldfield v. N. Y. & H. R. R. Co., 14 N. Y., 810, 821; Gale v. N. Y. C. & H. R. R. R. Co., 76 id., 594.

The defendant moved upon several grounds for. a non-suit; which may be, in effect, resumed in the statement that the plaintiff had failed to show that his crippled condition is the result of waut of knowledge, or skill, or of any negligence on the part of the defendants; or that it was not caused by either his own peglect, or that of his parents; or that it was not attributable to the subsequent mismanagement of the case by the physician called in to take charge of it.

Briefly stated, the "facts were that plaintiff, a lad of thirteen years of age, while playing in a ¿hay loft, fell through an opening and .upon the barn floor, striking with such force upon his hand and fore arm as to produce what, is known by the surgical term of a Colles’ fracture of the large bone of the arm near the wrist ■joint, with a dislocation of the smaller bone. The defendants, one of whom had long attended upon the lad’s family, were called in. They dressed the wounded parts, and placed a splint to hold the bones in place. The accident occurred on a Friday, and the management of the case by the defendants ‘continued from that day until the following Monday evening; Dr. Doyle, another physician, being called in by the lad’s parents on Tuesday morning.

.Over the methods of the defendants in treating the wound and in bandaging the arm and hand a severe controversy was waged; it being claimed by the plaintiff that the treatment was unskillful and grossly negligent; while for the defense it was claimed that the treatment was such as the peculiar nature of the wound called for; -and that the bad condition into which the plaintiff fell on Monday and Tuesday was due to a refusal on the part of his parents to permit defendants to seasonably re-dress the hand on Monday evening. It appears that the plaintiff’s parents became dissatisfied with the defendants’ treatment of the case, and hearing of Dr. Doyle’s success in the case of some acquaintance, dismissed the defendants on Tuesday tnorning,' and palled in Dr. Doyle.

The points made for the plaintiff were that the accident having caused an ordinary Colles’ facture, a certain metallic splint used should have been adjusted to the palmar surface of the hand, instead of upon its back; and that the bandaging of hand and arm had been so tight as, by such ignorant and neglectful treatment, to cause an inflammation and resultant suppuration, which, in the healing,, drew in the thumb and permanently deformed the hand. The defendants testified that the fracture, though similar to that known as Colles’ fracture, had so reversed the position of the bones that the splint had to be used as it was placed by them; that the physical condition of the patient, in addition, was bad from feverishness; that the bandages were rightly adjusted ; that the great inflammation, discovered when Dr. Doyle was called in, was due to their having been prevented from re-dressing the wound for many hours, and, finally, that had the succeeding physician properly treated the hand in its inflamed and swollen condition by lancing instead of by poulticing, no distorted condition of the hand would have resulted.

Medical experts were examined in support of the plaintiff’s and of the defendants’ positions, and when the evidence was all in, the case was such as to present purely questions of fact for the determination of the jury, if they believed that it was an ordinary Colies’ fracture, then the weight of the skilled evidence,, if not all of it, showed that the metallic splint used upon the-occasion was wrongly adjusted and not fitted for use in the particular way adopted by defendants. If tiiey believed that the defendants ignorantly and unskillfully used this splint and neglected, to bandage and to compress the parts in such wise as to permit of circulation and to prevent inflammatory action, and that the; maimed condition of the hand was due to such unskillful, or neglectful treatment of the case and was not caused by the subsequent treatment by Dr. Doyle, then the plaintiff was entitled to a verdict. If they believed that the defendants understood and properly managed the case and that the. resultant distortion was due either to some interference with their treatment, or to the malpractice of the succeeding ' physician, the defendants were entitled to a verdict The evidence upon the material points was conflicting. There was more or less disagreement among the doctors; but it is impossible to say that there was not evidence tending to establish a lack'of skill, or some neglect, on the part of the defendants. It was not necessary, in order to sustain the action, that there should have been proof of gross culpability upon the part of the defendants. It was sufficient, to warrant a verdict against them, that there was evidence of any‘failure on their part to exercise proper care; or of any neglect in the discharge of the duty they had assumed towards the plaintiff. Carpenter v. Blake, 75 N. Y., 12.

The recovery, therefore, must stand, unless there were any such errors committed upon the trial as would justify us in awardifig to plaintiff a new trial of the action.

The charge itself' was so fair as to call for the approval of the defendants’ counsel; but he presented requests to charge, some of which were refused and the refusals were excepted to.

The only ruling we deem it necessary to advert to in that connection is upon a request to charge that “ if the jury find from the evidence that the position and stiffness of the thumb Was caused by the abscess spoken of by Dr. Doyle, in the palm of the hand, which wa,s not opened by him, but allowed to gather and break and destroy the muscles and tissues in that'vicinity, the defendants are not liable therefor.” The trial judge declined to so charge, adding, “that is a question of fact.” In the main charge he had very explicitly instructed the jury that their verdict could not be for the plaintiff, if the evidence satisfied them that the treatment of Dr. Doyle, after he took charge, was not proper, and that want of proper practice on his part had contributed to bring about the condition of the hand. Just before the request was presented, he had charged for the defendants, upon their request, that “if the jury find from the evidence that it is just as probable that the injury complained of was caused, either by the original severe injury, or by the interference of the plaintiff’s parents, or by the subsequent manipulations and treatment of Dr. Doyle and others, as from the pretended tight bandaging, it is the duty of the jury to find a verdict for the defendáis. ”

The defendants had had the benefit of a fair charge upon the' question of where the responsibility should rest; as to where it ceased for them and began with Dr. Doyle; and the trial judge had just ruled, upon th,cir express request, that the existence of any probability that the injury may have been as much caused by Dr. Doyle’s treatment would warrant their exoneration by the jury, and they cannot be heard to insist that it was prejudicial error to refuse the subsequent request, which had not only been ■covered, but, in its form, tended to an assumption of a fact which was in issue. That is, the-request seemed to assume that the destruction of the muscles and tissues of the hand was due to Dr. Doyle’s failure to lance the swelling; whereas the precise question for the jury was whether-that destruction of muscle and tissue was the result of a condition brought about by the defendants, or by the bad management of Dr. Doyle, after he had assumed charge.

We think there was no error in the ruling upon the request.

Plaintiff’s father had testified as to the lad’s sufferings, and he was asked, " Did he continue -these complaints ? ” to which he answered, “Just the same ; this burning, terrible pain.” The defendants’ counsel then objected “ to that class of evidence; ” the court overruled and counsel excepted. I think that the evidence was unobjectionable, for they were complaints which were communicated to the attending physician with the view of having him relieve the tight bandaging; but, even if the evidence was improperly introduced, it was too late to interpose the objection after the answer had been made. The remedy was to move to strike out the evidence. To similar questions, subsequently objected to, no answer appears to have been given.

A medical expert, being examined as a witness for the defendants, had answered a hypothetical question upon an assumed case and which involved . the consequences to the hand of not redressing it within a certain period of time. He was then asked by defendants’ counsel, “ Could you trace any of the results, which you have heard testified to by Dr. Doyle, to the lack of re-dressing on Monday night ? ” An objection to the evidence was sustained and an exception taken.

Dr. Doyle was called in, in the place of the defendants, and he had testified to the case; his treatment of it and as to the condition of the hand. The medical expert witness, to whom this -question was putj knew nothing of the case and had testified hypothetically. To have answered the question would have required him to pass upon, or to draw inferences from, the evidence given in the case by another witness, and that would have been clearly improper within the authorities. Reynolds v. Robinson, 64 N. Y., 589; Guiterman v. Liverpool S. S. Co., 83 id., 358. An expert witness should be confined to -questions which contain in themselves the facts assumed to be proven and upon which his opinion is desired. One of the defendants had testified as to his qualifications, his studies and his practices, and had said that he had had a number of cases of what is known as Colies’ fracture. He was then asked, “And with what results? ” The evidence gvas properly excluded upon objection. An answer would not have tended to enlighten the jury as to his treatment of the present case. The question they were called to pass upon concerned the performance of the defendants’ duty ih‘ caring for the plaintiff, and that was to be decided upon a consideration of the evidence of what they did, or did not do. It was competent to testify?- to the proper practice in such cases, as pursued from study, or established by experience ; but it was quite immaterial and irrelevant what, in the cases defendant had had in the course of his practice, the general results had been. If in every one he had been successful, that could not affect the issue as to the exercise of proper care and skill in the particular case. If it was intended to fortify their case by showing to the jury the reputation of the witness, it was nota the way to do so by particular cases in his past practice.

Other questions raised by exceptions, as were these in fact, were properly disposed of by the court at general term.

We are= unable to discover the commission of any error which would warrant our reversing the judgments below and they must, therefore, be affirmed, with costs.

All concur, except Andrews, J., absent.  