Miller v. Leib

⁴¹⁷ Shmucker, J., delivered the opinion of the Court. This is an appeal from a judgment of the Baltimore City Court recovered by the appellee against the appellant, her family physician, for alleged negligence in treating her when ill. There is evidence in the record tending to show the following state of facts: The appellee, Mrs. Leib, a widow of slender build, sixty-one years old, fell and fractured a femur while walking across her bed room at noon of Saturday November 19th, 1905. She was then residing with her adopted sister, Mrs. Burke, at Irvington, a suburb of Baltimore City, distant three-quarters of an hour to an hour from the office and sanitarium, of the appellant Dr. Miller, in the City.

At about one o’clock Mrs. Bnrke’s daughter called up Dr. Miller’s office on the telephone and mentioned Mrs. Leib’s accident and requested him to come to see her. Some one, who said that he was Dr. Miller, answered the call, saying that he could not come at once but promising to come, as requested, after he closed his office. Miss Burke was unacquainted with the doctor and therefore could not identify as his the voice which answered her over the telephone. The doctor not appearing soon, Mrs. Burke, who knew him, called him up over the phone at seven o’clock in the evening and received a reply, which she recognized as being in his voice, promising to come as soon as^ his office hour was over.

He arrived at Mrs. Burke’s after nine o’clock and proceeded to malte a physical examination of Mrs Leib. The evidence as to the nature and extent of this examination is conflicting. Of those who witnessed it, Mrs. Burke thought it was brief and casual, her son Wm. B. Burke thought it was pretty thorough, his wife said that the doctor made no other examination than to hare the patient’s leg to the hip and pull and twist it and then told her to lie perfectly quiet and rest, that quiet and rest were what she needed.

The plaintiff’s own account is as follows: “I told him how I suffered; he took my clothing off and examined my foot and did this way and this way (very gently) ; he examined ⁴¹⁸ it, I suppose, for about ten or fifteen minutes, and then said, you have ruptured a muscle. I said, doctor it hurts me so dreadfully, and he said, you have ruptured a muscle and it is the most intense agony there is, but nothing very serious, and that after a few days it would heal if I would lie quiet. He fixed me and put his hand on the bed and said, lie quiet, you don’t need any medicine or attention, but lie quiet.” Hr. Miller on the contrary testified that he gave the patient a very careful and thorough examination, stripping, and comparing and measuring her limbs according to the usual methods and moving and handling the injured one as far as desirable and found neither shortening nor eversion of it, and that it was impossible to tell at that time whether the thigh was fractured or not.

He said that in either event the proper treatment was that which he prescribed, of keeping the leg quiet and in line. He put a pillow at her foot and told her to keep in position the salt bags which had been put on the outside of her hip before his arrival. The doctor did not see Mrs. Leib again until Monday evening when he prescribed the use of sand bags to keep her injured leg in a straight position and quiet and also gave her a sedative medicine internally. He came to see her again on Thursday and after re-examining her physically proposed to her to be removed to his sanitarium in Baltimore City at his residence where he said she could receive better attention.

She assented to the proposition and on the following day was taken to the sanitarium where she remained under the doctor’s care from November 24th to February 21st, when she left it in a lame condition with her fractured femur still ununited. While she was at the sanitarum she was kept in bed in a room with open windows and her leg was held in a position by the use of sand bags. Two efforts were made to treat the leg surgically, first, by the application of a side fixation splint and extension, and afterwards by a plaster cast and extension but she was unable to endure either of them. According to Dr. Miller’s uncontradicted testimony her temperature went up to 105 degrees within forty-eight hours ⁴¹⁹ after the application of the splint and he considered her desperately ill and took off the splint and lightened the extension weight.

After her general condition had improved the plaster cast and extension were put on her and retained in position for seventeen or eighteen days, during all of which time she was uncomfortable and constantly begged for their removal and her general condition became so bad that the appliances were taken off. Dr. Miller paid her one visit after she left his sanitarium. About two weeks thereafter Mrs. Leib called in Dr. Finney, a distinguished surgeon, who performed an operation on her, removing the broken end of the femur and making a new thigh joint. Since recovering from that operation she has enjoyed a fair use of the injured leg, but as it was somewhat shortened by the operation she will always be somewhat lame.

There is much testimony in the record tending to show that Mrs. Leib had been suffering from tuberculosis for some years prior to her accident and that the disease became acute after the accident. She said that Dr. Miller had been her regular physician ever since 1894, and he testified that he had on two occasions attended her for attacks of hemorrhages from the lungs, the last being in December, 1904, when she had a quite severe attack, that when he saw her the second time at Mrs. Burke’s after the accident her cough was decidelv worse and her temperature 103, that she had bronchial pneumonia in both lungs when she arrived at his sanitarium and that while she was there he had frequent examinations of her sputum made and found it filled with tubercular bacilli and he was compelled to report her case to the Health Board as tubercular. Miss Ford and Miss Haney, two of the nurses who attended her at the sanitarium, both testified that she told them that she had had consumption for twenty years and that her mother had died of it. The same witnesses testified that she had a very bad cough and profuse expectoration when she came to the sanitarium.

Dr. Miller further testified that at his second visit, to Mrs. Leib after her accident he discovered that her femur had ⁴²⁰ been fractured, but that her general condition was such that he thought it inexpedient to attempt at once to apply splints or a. plaster cast to her for the relief of her leg. As against this evidence Mrs. Leib’s family and friends who had known her for some years and who visited her at the sanitarium testified that they regarded her general health, prior to the accident, good, and that her illness at the sanitaium was produced by the cold air and drafts in the room in which she was kept and the insufficient covering on her bed. Some of these witnesses also thought that the doctor had been brusque in manner and indifferent in his treatment of Mrs. Leib and that he displayed lack both of knowledge and skill in that connection failing to ascertain the true nature of her injury or to give her case intelligent or skilful attention. We express no opinion upon the weight of the evidence in the case, that being a question for the jury.

We have referred to portions of it merely as explanatory of our action upon the legal propositions presented by the case. Twenty-five bills of' exceptions appear in the record, the last one of them being to the Court’s action on the prayers and the others to rulings on evidence. The first eighteen exceptions concern questions, mostly hypothetical, put to the plaintiff’s expert witnesses, who were Dr. J. M. T. Einney and Dr. Wirt A. Duvall. Of those questions only four were put to Dr. Einney, of which three were hypothetical in character.

Soane of those questions were defective in form but, as the doctor’s answers were not such as were calculated to injure the defendant the overruling of the defendant’s objection to them did not constitute reversible error. The general tenor of Dr. Duvall’s answers to the hypothetical questions put to him was that a reasonably skilful physician ought to be able to discover, by a reasonably careful examination of a person of Mrs°. Leib’s age and build, who had suffered such an accident as happened to her, whether or not there was a fractured bone; and that if the examination left him in doubt he should employ the X-ray to clear up the doubt; and that if the presence of a fracture was disclosed the ⁴²¹ patient should be promptly treated either by an operation or by the application of a splint and an extension or a plaster cast to the injured leg and its retention in place for several weeks. The tenor of the testimony of the defendant’s medical experts, Drs.

John W. Chambers and Thomas McOrae, and his own testimony as an expert differed from that of the plaintiff’s experts chiefly in the important particular of what was the proper treatment to be adopted in cases where the patient with the fractured leg was a lady sixty-one years of age who had tubercular trouble. In such cases both Dr. Chambers and Dr. Miller expressed the opinion that a prudent and careful surgeon would look first to the woman’s general condition treating the fracture in the meantime in the simplest possible way by the use of pillows and sand bags; and that if, when later on an attempt was made to use splints and extensions or similar appliances on the fractured leg, the patient’s temperature rose to 103 or 105 and she suffered from a strenuous cough and expectoration and was uncomfortable, her health should be the first object of care and the appliances removed and the injured limb become a matter of secondary consideration; and Dr. Finney upon cross-examination expressed substantially the same views, although ho said that he saw no tubercular symptoms in the plaintiff when he performed the operation on her thigh. Dr. McCrae thought the proper treatment for persons with a fractured hip who also suffered from consumption was to give them an abundance of fresh air, food and generally good hygiene. The hypothetical queestions, by means of which the plaintiff’s counsel elicited the expert testimony of Dr. Duvall over the defendant’s objection, were predicated upon the assumption that at the time of the accident she was over sixty-one years old and slight in build but were silent as to her general health at the time and especially failed to mention or take into consideration any tubercular trouble on her part.

For example, the question referred to in the thirteenth bill of exception was: “Suppose a lady sixty-one years of age, rather ⁴²² slight, falls and sustains a fracture of the neck of the femur; suppose it were an impacted fracture; what would be the treatment which would be required on the part of a reasonably skilful physician using reasonable care ?” The question referred to in the fourteenth bill of exceptions was: “How long usually would reasonable care require that the Hamilton and Long (splint) or the plaster cast and the mild extension should remain before the doctor took it off to examine the condition of the fracture ?” The question referred to in the sixteenth exception was: “Suppose a lady sixty-one years of age fell and sustained an intra capsular fracture of the neck of the femur and called in her regular physician, how often would reasonable' care require that he should see his patient after his first visit.” We think the defendant’s exception to these and all similarly defective questions should have been sustained. Litigants in an action of law are entitled to the judgment of the jury upon all of the facts of the case. Therefore expert testimony on hypothetical questions, which substitutes inferences for facts, ought always to be received with caution. It is of the highest importance in admitting such evidence that care be taken to see that the hypothetical question put to the expert is not only based upon facts already in evidence, but that it is so framed as to fairly represent those facts and not give the situation a false color by the method of their statement.

In some jurisdictions such questions are required to cover all undisputed facts material to the subject involved, but it has been held by this Court in several cases that it is not always necessary in framing a hypothetical question to be put to a medical expert to refer to all of the evidence upon the subject. Williams v. State, 64 Md. 384 ;