
    Ella H. Brown, Respondent, v. J. Riddle Goffe, Appellant.
    First Department,
    November 4, 1910.
    Negligence — action against surgeon for malpractice — failure to prove negligence — evidence—hearsay — declarations of defendant’s assistants — acts involving judgment — instructions to assistants — excessive verdict.
    Action against a physician to recover damages for personal injuries alleged to have been caused by his negligence and unskillfulness in performing a surgical operation. The case was submitted to the jury upon the theory that the defendant could also be held for negligence in treating the plaintiff after the operation. Evidence examined, and held, that a verdict for the plaintiff based on either item of negligence was against the weight of evidence.
    In such action testimony by the plaintiff that she was told by one of the hospital staff that the defendant had given orders that the bandages on the wound should not be changed is inadmissible to show the negligence of the defendant following the operation.
    A patient suing a physician for malpractice is under the burden of showing affirmatively either his want of skill, or negligence in attending the case. Where in such action it- is not shown that any permanent injury resulted from the acts of the defendant, but merely some unpleasant experiences, a verdict of 69,000 is grossly excessive.
    As a surgeon or physician is bound to use his best judgment in exercising his skill and applying his knowledge, it is error in an action against him for malpractice to refuse to allow him to testify that his acts accorded with his judgment as to what should have been done.
    So, too, where he is charged with negligence in the care of the patient following an operation performed by him, it is error to refuse to allow him to testify as to the instructions he gave to members of the hospital staff respecting the care of the patient.
    Dowling, J., dissented.
    Appeal by the defendant, J. Eiddle Goffe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 25th day of March, 1910, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 22d day of March, 1910, denying the defendant’s motion for a new trial, with notice of an intention to bring up for review an order entered on the 5th day of January, 1910, denying a motion for a new trial made upon the minutes.
    
      
      James Taylor Lewis, for the appellant.
    
      George R. Bristor, for the respondent.
   Scott, J.:

The defendant appeals from a judgment entered upon a verdict, and from an order denying a motion for a new trial. The action is against a surgeon for carelessness, negligence and unslrillfulness * * * in conducting and performing ” certain surgical operations upon the plaintiff, and the recovery is a large one. It would serve no useful purpose to review in detail the conditions which necessitated the operations and the nature of the operations themselves. It is sufficient to say that the principal operation involved the removal of certain organs which had become diseased and that the subsequent operations were of a minor character performed for the purpose of drainage, and with a view to the restoration of certain parts and tissues which had become infected. The plaintiff,,a young woman of about twenty-five years of age, employed as a waitress in a restaurant, had been troubled for some months with a persistent disorder, which failed to respond to such simple remedies as she had resorted to herself. Upon the advice of a friend she applied for treatment to the clinic of St. Bartholomew Hospital. Here she came under the care of a Dr. Jaques, one of the attending physicians, who, after examining and re-examining her, concluded that she required surgical treatment, and advised her to go to the Polyclinic Hospital and permit the defendant to treat her. She went to the hospital, engaged a room, and the next morning after her arrival saw the defendant for the first time. Pie at once examined her, concluded that an operatiqn was necessary, and did operate. Later in the same day a condition arose which required a second minor operation, mainly for the purpose of drainage, and some time later a second incision was made for the same purpose. Still later, after plaintiff had sufficiently regained her strength, a fourth operation was performed, consisting of opening one of the incisions already made and securing so far as possible some of the spots found to have been weakened by the infection found upon the occasion of the first operation.

The law relating to malpractice is, as stated by Judge Vann in Pike v. Honsinger (155 N. Y. 201), “ simple and well settled, although not always easy of application. A physician and siirgeon, by taking chargé óf a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery.” It is not contended the defendant did not possess the requisite learning, skill and experience. Indeed the plaintiff expressly concedes that defendant, who has practiced nearly thirty years, did possess a proper degree and standard of skill as a surgeon.

In addition to possessing the requisite skill and knowledge, it becomes the duty of a physician or surgeon, upon undertaking to treat a patient, to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed. He is under the further obligation to use his best judgment in exercising his skill and applying his knowledge.” (Pike v. Honsinger, supra.) The gravamen of the complaint is that defendant, while possessing the requisite skill and learning, did not use reasonable care in the exercise of 1ns skill and the application of his knowledge.

The complaint, after alleging that the defendant performed an operation upon plaintiff, goes on to aver that by reason of the carelessness, negligence and unskillfulness of defendant in conducting and performing said principal operation, and other operations, which he performed on plaintiff’s body at different times thereafter, occasioned and necessitated by defendant’s negligence, carelessness and unskillr fulness aforesaid, she was made sick, sore”’ etc. Although the complaint was limited to a charge of negligence, carelessness and unskill-' fulness in conducting and performing the operations, the case was tried and submitted to the jury upon the theory that the defendant might be held liable either because he had been negligent and unskillful in conducting and performing the operation, or because he had been negligent and careless with respect to the treatment of plaintiff after the operations, which, as the court charged, involved separate lines of inquiry. An examination of the whole case shows very clearly either that the verdict was against the evidence or that it rested entirely upon the charge of negligence and carelessness in the after-care of the patient, a charge not embraced in the complaint. As to x the condition of affairs which the defendant found when he examined and operated upon plaintiff, and as to the nature of the operations actually performed, none of the evidence is of any value except that of defendant himself and his assistants for they alone saw and knew the conditions and operations. As to whether or not the operations as performed were proper and in accordance with the requirements of professional skill we are obliged to rely upon the evidence of experts who have special knowledge of such subjects. It is not overstating the case to say that there is no evidence in the case from any qualified witness to the effect that any one of the operations performed by defendant was improper, or was carelessly, negligently or unskillfully executed. The learned trial justice himself, at the close of the plaintiff’s case, declared that there was no evidence to show unskillful work on the part of the defendant in the actual surgical performance of the operation. There certainly was no evidence to that effect given by the witnesses called on behalf of defendant. The other branch of the case rests entirely upon the evidence of the plaintiff herself, contradicted in the main not only by the defendant, but also by his assistants and the house surgeons of the hospital. Certain witnesses called as experts did testify that if defendant was guilty of the neglect charged by plaintiff, he had been remiss in the performance of his duty, but this evidence loses much of its force in consequence of the unwarranted assumptions embraced in the hypothetical questions by which the answers were elicited. It was insisted throughout the trial and on the appeal that defendant had compelled plaintiff to lie for days at a time with unchanged bandages and dressings. This insistence had no better foundation than the plaintiff’s inadmissible evidence that one of the hospital staff had told her that defendant had given orders that the bandages should not be changed. No legal evidence of such an order was given. The plaintiff’s counsel quotes in his brief in this court, and doubtless quoted to the jury, a sentence from defendant’s evidence that: I never ordered the bandage removed,” but carefully refrains from quoting the very next sentence that the bandages were taken off every day after they were soiled.” It is well established that the burden of establishing affirmatively either want of skill, or negligence i-n the care and attention of a patient must be assumed by him. (Winner v. Lathrop, 67 Hun, 513.) We are by no means satisfied that the plaintiff successfully sustained that burden as to either branch of the case. But if the jury were justified in accepting the plaintiff’s version of defendant’s neglect after the performance of the operations, and in wholly rejecting the defendant’s contradicting evidence, still the verdict should not be allowed to stand, for it was grossly excessive. It is not shown or even alleged that any permanent injury resulted from any carelessness or neglect of plaintiff after the operations; merely, in one instance, an unpleasánt experience. The only permanent effect of which plaintiff complains was the result of the performance of one of the operations as to which, as has been said, there is no evidence of unskillfulness, negligence or carelessness. If the verdict is founded, as it must be, upon the charge of negligence in the after-care of plaintiff, it is manifestly out of all proportion to the injury shown to.have resulted from that negligence. These views call for a reversal of the judgment, but, as the case must be sent back for a new trial, it is well to refer to two errors in the exclusion of evidence, which alone would have been sufficient to reverse the judgment. A very important inquiry in a case like the present is whether or not the defendant did that which his best judgment dictated. One of the obligations resting upon a surgeon or physician is to “ use his best judgment in exercising his skill and applying his knowledge,” and when his acts are challenged it must necessarily be open to him to show that they accorded with his judgment as to what should have been done. The defendant was asked: “How in performing this operation did it, in your judgment, become necessary to separate the tissues in either way from the sac in which the pus was found?” The question was objected to and excluded, thus preventing the defendant from showing precisely that which it was incumbent upon him to show.

The necessities of the case required that the defendant should leave, in large measure, to the hospital staff the care of the patient after the operations, and it was shown that this was the usual and proper practice in hospital cases. Much stress was laid by plaintiff upon the defendant’s supposed carelessness in giving instructions to the members of the staff. It, therefore, became very material and necessary for defendant to show what instructions he did give, and to show this he himself was a competent witness. "He was not, however, allowed to answer the following perfectly proper questions : What ■ instructions did you leave with the hospital staff of physicians or nurses with reference to the care of the patient ? ” This error was never corrected, for, although it appeared that he did give some instructions, the native of those instructions was not .shown. Other objections to the reception and rejection of evidence are urged upon us which, hoivever, it is not necessary to discuss in view of the conclusion to which we have already arrived, since the same questions will probably not arise upon a new trial.

The judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, P. J., Clarke and Miller, JJ., concurred; Dowling, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  