
    Ida O. Winner, Resp’t, v. George H. Lathrop, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    1. Malpractice — Examination of plaintiff in court.
    On the trial of an action against a physician for damages alleged to have been sustained by reason of his unskillfulness or negligence in reducing a fracture of plaintiff’s wrist, the latter bared her wrist and exhibited it to the jury, and assumed to move it for the purpose of showing its defects; and thereafter the court refused to allow the defendant to examine the wrist in the jury’s presence. Held, error; the member having been put in evidence as a part of the direct examination, it was for the purposes of the trial made the property of the court and opposite party for the purpose of a cross-examination.
    2. Same.
    The fact that defendant ordered the wrist bathed with a decoction of wormwood and vinegar, which expert testimony condemned, but did not say would injure, is not of itself such a departure from approved medical treatment as would justify a recovery against defendant.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    
      J. M. Maybee (T. F. Bush, of counsel), for app’lt; W. J. Groo, for resp’t.
   Mayham, P. J.

This is an appeal from a judgment of the Sullivan county court, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the judge.

. The action was for damages claimed to have been sustained by the plaintiff by reason of the alleged unskillfulness or negligence of the defendant as a surgeon in reducing a fracture of the plaintiff’s arm or wrist

The plaintiff fractured the radius or upper bone in her forearm, and several hours after the injury called on the defendant to reduce'the fracture. At that time the arm was much swollen, but the defendant undertook to, and as he claimed did, adjust the fractured bone, and applied splints and bandages. The defendant, by bis testimony on the trial, described his method of treatment and instructions to the plaintiff, and testifies that the same was the approved method known to the profession, and in this he was sustained by the expert testimony in the case.

He was, however, disputed as to the method of treatment by the plaintiff, who testified that he advised bathing the parts with a decoction of wormwood and vinegar, which the expert testimony condemned; but he denied that he gave any such direction. He was not employed to visit the patient, but she visited him at his office on three occasions, at intervals of about two weeks. The medical testimony characterizes this fracture as one of the most difficult to treat, and that in a large percentage of the cases a perfect cure cannot be effected with the most skillful surgical treatment.

The plaintiff’s arm was not perfectly restored to its former usefulness, the wrist remaining to some extent stiff; the rotary motion of the arm obstructed, and the usefulness of the hand was permanently impaired.

The defendant was shown to be a regularly graduated surgeon from a duly organized medical and surgical college, and there is no evidence of neglect on his part to exercise his best skill and attention in treating this fracture at the times the same was submitted to him for treatment

While there is, to some extent, a disputed question of fact as to the directions of the defendant to apply wormwood and vinegar which, if important to the result, was for the jury, yet it does not seem to us to be such a departure from approved medical treatment, even if the jury found with the plaintiff on the question, as to justify a recovery against the defendant

There is no evidence that the limb was not properly adjusted and bandaged, and the evidence does not disclose that the application of the decoction of vinegar and wormwood if appp6¿ could have injuriously affected the desired cure.

The law exacts of the medical and surgical profession the possession of a reasonable degree of learning and skill, such as is ordinarily possessed by the profession, and such as is ordinarily regarded by the profession as necessary to qualify him to engage in the profession, and that he will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge, to accomplish the purpose for which he is employed; and that he will use his best judgment in the application of his skill.

But it does not always require the highest order of talent and skill to be found in the profession ; nor does it make the practitioner insurer as to the results, or hold him responsible for not restoring a fractured limb, in all cases, to its normal condition or usefulness. Carpenter v. Blake, 10 Hun, 358; Wells v. World's Dispensary Medical Association, 9 St. Rep., 459.

The burden of establishing, affirmatively, either want of ordinary skill, or a failure to use his best skill, or some negligence in the care or attention of the plaintiff’s case which resulted to her injury, must be met before she can recover.

This the evidence in this case does not disclose. The defendant also insists that the trial judge erred in refusing to allow the defendant to examine the plaintiff’s wrist on the trial in the presence of the jury, after she had bared the same, and exhibited it to the jury, and assumed to move it for the purpose of showing its defects. It is quite true, as contended by the learned counsel for the respondent, that the court has no power to compel an injured party, in a case like this, to exhibit her injury to the defendant before trial for inspection for the purpose of furnishing evidence for the defendant.

In McQuigan v. The Del. & Lackawanna R. R. Co., 129 N. Y., 50; 41 St. Rep., 382, the court of appeals held that the court had no power to compel a party in advance of a trial for physical injury to submit to a surgical examination on the application of the adverse party.

But Judge Andrews in his opinion states that “ The sole question presented by this record is whether the supreme court has power in advance of a trial of an action for personal and physical injury, to compel the plaintiff, on application made in behalf of the defendant, to submit to a surgical examination.” Any discussion beyond the examination of that precise question in that case would be irrelevant and obiter, and would not, therefore, be authority in a case where on the trial the injured party had voluntarily exhibited the injured part, etc., to the jury.

The same doctrine was held by the general term in Robert v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 158, where an order of a special term granting such examination before trial was reversed. In this case, as in the case of McQuigan v. R. R. Co., supra, all that the court was called upon to decide was as to the power of the court to compel an examination before trial.

In McSwyny v. Broadway & S. Ave., 27 St. Rep., 363, it was held that a plaintiff might properly refuse to submit to a personal inspection of the alleged injury on the application of the defendant at the trial. But the plaintiff had not in that case voluntarily exhibited the injured part to the jury, as done in this. I have been referred to no case, nor have I been able to find any, in which a party claiming a physical injury has first voluntarily submitted the injured part to the inspection of the jury as evidence, and has refused to permit the adverse party to follow up that examination in the presence of the jury by a personal, or professional inspection of such injured part.

Such an examination seems to me to stand upon a different principle from that of a compulsory examination, by the adverse party, before or at the trial, when the injured party has not made profert of the injured part.

It seems to me that it would be unfair and might result in gross injustice to the party against whom such evidence was used. In such a case, it would be in the power of the party by muscular distortion of the injured part, especially an arm or hand, to impose upon the jury and court, as well as the adverse party, and produce upon the mind of the jury a false impression as to the extent of the injury.

The member having been put in evidence as a part of the direct examination, it is, for the purposes of the trial, made the property of the court and opposite party, for the purpose of a cross-examination. It is difficult to conceive of a species of evidence that is offered by one party in support of his ease which may not, in the presence of the same tribunal, be examined and criticised by the party against whom it is offered. We think, therefore, that the inspection and examination of this limb should have been ordered and permitted by the court, and in case of refusal to submit to such inspection by the plaintiff, her evidence, so far as that exhibit and explanation of the same by the plaintiff was concerned, should have been stricken out on defendant’s motion.

The plaintiff had a right to exhibit this injured limb to the jury, and the defendant had no power to exclude it. Hiller v. The Village of Sharon Springs, 28 Hun, 344. In this case, Learned, P. J., says : “ But if plaintiff’s leg was injured, there was no more certain and unquestionable way of proving the fact to the jury than by showing them the leg itself.”

In Mulhado v. Brooklyn City R. R. Co., 30 N. Y., 370, the court, speaking upon this subject, say: “ Such exhibition certainly tended to make the description of the injury more intelligible.”'

If the party injured can offer this evidence, most certainly the adverse party should be permitted to cross-examine and criticize such evidence.

For both the grounds above discussed we think that this judgment and order should be reversed.

Judgment and order reversed and a new trial granted, costs to abide the event

Putnam and Herrick, JJ., concur.  