Anderson v. Nixon , 104 Utah 262 ( 1943 )

From the conflicting evidence on the question as to whether the defendant had ordered plaintiff to go to bed and rest during the time the latter was getting progressively worse, plus the fact that plaintiff was actually coming, during such period, to the doctor's office, the jury could have concluded that the defendant had failed to order plaintiff to bed and rest and in that respect was negligent. The jury could have, from the nature of the injury and the likelihood or possibility of infection plus the fact that plaintiff was becoming worse and not better, plus the fact of defendant's knowledge that his knee was involved, concluded that the doctor should, if he possessed the knowledge required of doctors in the community in which he practiced, by using such required knowledge have suspected septicemia. Requisite care and diligence in cases of this sort when it was apparent that the patient was suffering from an infection which might affect various parts of the body with more or less disastrous results would call for all measures available to the medical community in that vicinity for the discovery of the nature of the infection and for arresting it. The jury could well have found that Dr. Nixon's conduct in this regard did not measure up to the standard of skill and care required and which could be expected from doctors in that locality. But the doctor cannot guarantee results, nor even guarantee to discover all symptoms. He must use diligence and care to apprise himself of the symptoms and then use the standard of medical skill applicable to that community to diagnose the cause and thereafter use the same standard of care in treatment. It appears to me that the opinion is too broad in stating that it is negligence for doctors to fail "to apprise themselves of symptoms which are present and to diagnose and correctly treat the patient on the basis of those symptoms." There are cases where there is great variation of opinion among competent men as to what is the "correct" treatment. That treatment is correct which produces the improvement desired but sometimes this test of "correctness" is empirical. Certainly the physician must make diligent inquiry as to symptoms subjective and objective using skill and care in observation and approved and known methods of uncovering them. That is his first duty. If he fails there, he is negligent. If the word "duty" in the sentence reading, "Regardless of what skill is used, if a doctor fails in his duty to observe and discover a patient's illness, he is negligent" is defined as above or in equivalent language I am in accord with the statement.

I further agree that there was evidence from which the jury could conclude that the defendant had been negligent in not giving blood transfusions if it concluded that such was a measure for combatting the disease which could be expected of doctors practicing in that locality; furthermore, that if such transfusions if timely given required hospitalization sooner for that purpose then there was negligence in that regard. I agree that there is insufficient evidence that there was negligence in not sooner operating.

As to the question of proximate cause, where it is claimed that the end result was caused wholly or partly by the omission to take measures which are ordinarily used by doctors exercising the requisite skill to arrest or combat the disease it must appear that there was a fair probability that the measures would have changed the result.

But the plaintiff does not need to prove this by asking medical experts directly their opinion as to whether in the specific case there would have been a fair probability that the results would have been different. It is notorious that most medical men hesitate to testify against their fellows and this reluctance grows when they are asked to express an opinion which directly involves the conduct or reputation of a confrere. It is not necessary to so embarrass them. The plaintiff may prove a fair probability of avoidance of the baleful results if he shows by medical evidence that such measures are generally used in the community where he was treated and are considered by the profession as having a fair chance of accomplishing the purpose for which they are designed where that purpose is one of arresting the course or inroads of the disease or lessening its adverse consequence or duration and that medical experience has found them efficacious and successful in similar cases and when used that the results have been favorable in comparison to the cases where omitted.

When the omissions are trivial or incidental, it could not be inferred that their absence had any substantial effect or bore any real relationship to the result. But when proof is presented as above suggested the jury may infer that the plaintiff has made out a case where the relationship between the omission and the adverse end effects of the disease bears the relationship of cause to proximate effect. It is then incumbent on the defendant to show that in the particular case under consideration the measures advocated would not have changed the result. Otherwise, the negligent doctor is allowed to take refuge in the very doubt which his omission brought into being. He had an opportunity to prevent any such question arising by taking the measures. It does not seem to be fair to permit him to say: "Yes, I omitted to take the measures which medical experience has found efficacious and which the skill required of a physician in the community in which I practice demands, but you must show that in this case the end result as it has happened would not have happened had I performed with the requisite skill." I so expressed myself in an opinion dissenting from the order denying the petition for rehearing in the case of Edwards v. Clark, 96 Utah 121, 83 P.2d 1021.

But in the instant case, the allegations of negligence pertained to conduct of the doctor after December 10th. The evidence as to the failure to advise rest pertained to the period before December 10th. It is during that period that the harm may have been done. On December 10th and afterward the plaintiff was in bed resting. Hence, the allegations are not sufficient to admit evidence under the rule above laid down as to the omission to advise and insist on rest.

In the matter of the failure to take tests to see if blood transfusions were necessary the situation is somewhat different. In such case, there must be some evidence to show that, had the tests been taken, they would have revealed that the blood was in need of reinforcement. If evidence of that nature had been introduced the plaintiff would then be in position to introduce evidence of the effect of the omission to give blood transfusions according to the rule above set out. But such evidence was not introduced nor any evidence from which the jury could infer that there was a fair probability that the results would have been more favorable than they turned out to be if the omitted acts, charged as negligence, had been performed. The plaintiff should be permitted to amend his complaint if so advised and a new trial had on the issues thus raised.