This proceeding is an appeal on questions of law seeking to set aside a verdict and judgment of the Court of Common Pleas of Hamilton county in favor of the defendant in a malpractice action.
The plaintiff claims in his pleadings that he employed the defendant to treat him for a diseased condition, commonly known as varicose veins, that the defendant suggested an operation, that the plaintiff submitted to such operation at a hospital, that alcohol instead of novocaine was injected into his body as an anaesthetic, that he suffered excruciating pain during the operation and communicated this fact to the defendant, who failed to investigate the cause of this unusual and unwarranted pain, that the physician failed to investigate the cause of continued pain after such operation, though requested so to do, that the defendant neglected the plaintiff for some ten days, that the tissues of the plaintiff's body in the operated areas became infected and diseased, that the defendant negligently massaged the infected areas causing embolisms in the lungs of the plaintiff, and that he was confined in the hospital for many weeks as a result of such negligence. *Page 367
The defendant denies that alcohol was injected into the body of plaintiff, or that he was in any way negligent, either in the operation or post-operative treatment.
The trial of this case occupied thirteen days and the record of the evidence is extremely voluminous.
Much of the evidence is in violent conflict upon the issues presented.
The verdict of the jury was in favor of the defendant.
The defendant in a supplemental brief asserts that the trial court should have instructed a verdict in favor of the defendant. No cross-appeal has been filed. Defendant evidently relies upon the case of Hrovat v. Cleveland Ry. Co., 125 Ohio St. 67,180 N.E. 549, 84 A.L.R., 215.
Three distinct issues of negligence were presented to the jury by the pleadings and evidence.
First — negligence in the pre-operative technique in the administration of a local anaesthetic.
Second — negligence during the process of operation in failing to heed the protestations of plaintiff that he was suffering undue pain.
Third — negligence in post-operative treatment and care of the patient.
It will be apparent in the later discussion of the assignments of error involving consideration of the evidence that in the opinion of this court there was sufficient evidence to require the submission of the case to the jury on one or more of the issues of negligence noted.
We, therefore, consider it unnecessary to recite here in connection with this claim of the plaintiff, the evidence, which, in our opinion, will demonstrate that such claim for an instructed verdict in his favor is unfounded. To do otherwise would result in repetition, which would unduly extend this opinion. It is our conclusion upon this phase of the presentation, *Page 368 however, that the position of the defendant, that he was entitled to an instructed verdict, is unfounded.
The plaintiff has presented seven assignments of error, among which is not included any claim that the verdict is against the weight of the evidence. The plaintiff, on the contrary, has specifically stated that he does not rely upon this as an assignment of error, so the same is not considered by this court.
A detailed statement of the facts as developed by the evidence is necessary in order to intelligently approach a consideration of such assignments of error, especially in view of the claim of the defendant that he was entitled to an instructed verdict in his favor.
There is evidence that the plaintiff had, prior to June, 1937, suffered from varicose veins and phlebitis for some time. He was treated by his family physician, Dr. James Stewart Matthews. The condition in the period mentioned becoming more acute, he, upon the suggestion of Dr. Matthews, consulted the defendant, who advised an operation, which he agreed to perform. The plaintiff selected one of two hospitals suggested by the defendant as the place for the operation, which took place on September 4, 1937.
The defendant decided that a local anaesthetic was sufficient and prescribed novocaine and adrenalin. The anaesthetic was prepared by an employee of the hospital in the absence of the defendant. The solution was injected into the operative area by the defendant, who made no examination of the fluid. He did not smell it or in any way attempt to ascertain its nature. Alcohol has a distinctive odor.
Immediately upon injecting the fluid supposed by the defendant to be an anaesthetic, the plaintiff complained of intense pain and continued to complain during the operation. (This is denied by the defendant and the attendants present at the operation.) The defendant proceeded without any interruption, or attention to the complaints of the plaintiff, with the operation, *Page 369 bandaged the operated areas and permitted the plaintiff to go immediately to his home.
The defendant told the plaintiff to come to his office in a couple of days, or, if inconvenient, he would visit him in his home.
The plaintiff suffered continuously from the time of the operation, the pain becoming more and more acute. He developed a fever. The defendant failed to respond to the plaintiff's request to visit him and relieve his pain.
Dr. Matthews, the plaintiff's family physician, was called in and administered drugs in an effort to relieve the pain. Dr. Matthews was called back several days later, the plaintiff then being in a much worse condition. He found evidence that the operative wounds were exuding a liquid, the plaintiff's bed being stained with the fluid from the wounds. Dr. Matthews changed the dressing, and the next day, September 14, 1937, the plaintiff went to the office of the defendant, who removed the bandages and was horrified to find that the operated areas were infected and that the flesh was in a state of decomposition.
The record shows the following:
"* * * Didn't you say this: `Mr. Abercrombie, it looks like a mistake has been made here; it appears that solution was not novocaine solution.' A. Yes, that is in my deposition.
"Q. You said that? A. Yes. Under a nervous tension.
"Q. You said that; that is all I am asking. A. Yes; I agree with you 100 per cent on that.
"Q. Then you said to him: `The only solution I can think that would cause that condition would be alcohol solution or overdose of adrenalin,' you said that? A. Yes, I answered that. * * *
"Q. I will ask you what Dr. Roof's exact words were? A. He said he would be ___ ___. *Page 370
"Q. Then what did he say? A. He said a horrible mistake had been made.
"Q. Then what did he say? A. He said I had had an alcohol injection in my legs. * * *
"Q. Did Dr. Roof say anything to Dr. Caruthers? A. He did, he said if he wanted to see a fine example of alcoholic injection there it was."
The defendant called in another physician to examine the plaintiff. Defendant then removed the decayed flesh, dressed the area and sent the plaintiff to his home and did not again see him until he visited him at his home on September 21, 1937. The defendant then and there made an examination of the affected areas and "took his hands and tried to close the big holes in my limbs * * * he tried to pull them together." The defendant was endeavoring to ascertain whether he could sew up the holes or would have to engraft skin. The defendant denies that he endeavored to close the holes or manipulated the operative areas.
The next day the plaintiff developed a pulmonary embolism and was taken again to the hospital, where he remained until November 7, 1937. While there he suffered severe pain, and it was necessary to resort to the use of oxygen tents to save his life.
Since the experiences related and his release from the hospital, the plaintiff has suffered a permanent impairment in walking, is required to keep off his feet as much as possible, and suffers pain and numbness in the groins.
Plaintiff assigns as the first error for the consideration of the court, the giving of defendant's special request No. 1.
A narrative and a verbatim bill of exceptions have been presented to the court. The failure of counsel to refer to the verbatim bill has not greatly aided the court in endeavoring to locate the basis for the assignments of error noted. The rules of this court require definite references to the bill of exceptions in support *Page 371 of statements of fact in the brief. Failure to comply with this rule has again made the work of the court difficult especially when dealing with a record of almost one thousand pages.
The charge complained of in this assignment of error does not appear in the original papers, nor does it appear to have been incorporated in the verbatim bill of exceptions. We do not find it quoted as given in the narrative bill and in the interests of justice, we will consider it. It appears as follows:
"The court charges you that the defendant, by reason of his contract with the plaintiff, did not guarantee a cure, nor did he undertake that nothing serious would arise as the result of his treatment."
This is not the charge as quoted in the plaintiff's brief, which is as follows:
"The court charges you that the defendant, by reason of his contract with plaintiff, did not guarantee a cure, nor did he warrant that the operation would be successful, nor did he undertake that nothing serious would arise as a result of his treatment."
We find no error in the giving of this charge.
The second assignment of error deals with the giving of defendant's special request No. 7. We are again compelled to refer to the narrative bill of exceptions.
Special charge No. 7 is as follows:
"The court charges you that the plaintiff must prove by a preponderance of the evidence that the defendant injected alcohol into the plaintiff during this bilateral vein ligation operation."
This charge the plaintiff quotes correctly from the narrative bill.
The defendant claims that all this charge does is to require a preponderance of the evidence in proving alcohol was injected into the plaintiff. This is not the limit of the natural and logical inference from the language used, nor did the jury undoubtedly so consider it. It is a mandate upon the plaintiff. The natural *Page 372 inference, though not expressed in terms, is that if the plaintiff fails to comply with this mandate he fails in his case. Of course the charge as far as it goes states a correct proposition of law, but it is inapplicable to the facts in the case and is misleading, especially in view of the failure of the court to properly charge upon the issues in the case. Reference to the general charge shows that the court in effect read all the pleadings to the jury, concluding with the statement:
"These issues may be briefly stated as follows:
"First: Was the defendant, Dr. Roof, negligent in one or more of the particulars set out in the petition as I have just summarized them to you?
"Second: If so, was such negligence the proximate cause of the injuries complained of by the plaintiff, Mr. Abercrombie?
"Third: What was the measure and extent of the damage suffered by plaintiff?"
There was more than one issue of negligence. This special charge applied to only one of those issues — the claim that alcohol was injected by mistake. The jurors would naturally suppose, the other issues not being pointed out to them, that if they were in doubt as to this claim, then they must resolve the case in favor of the defendant, as they did.
The giving of this charge, under the circumstances, was prejudicially erroneous.
In the third assignment of error, it is charged that the court abused its discretion in limiting the cross-examination by the plaintiff of one of the defendant's witnesses, a hospital nurse.
The court refused the plaintiff the right to inquire of the nurse what, if any, statements the defendant had made to her after discovering the adverse condition of the plaintiff. The question sought to elicit what the defendant had done in the nature of an inquiry about the use of alcohol. The court stated that the plaintiff *Page 373 would be required to make the nurse his witness in chief before pursuing such inquiry. In this, the trial court clearly erred. The questions upon cross-examination were clearly competent and important to the plaintiff. It was not necessary to make a profert upon cross-examination. Martin v. Elden, 32 Ohio St. 282.
The trial court abused its discretion in limiting this cross-examination, thereby causing error prejudicial to the plaintiff to intervene.
In the fourth assignment of error, the plaintiff charges that the trial court committed error in permitting physicians, other than the defendant, who testified as experts to state, as their opinion, that the defendant was not guilty of lack of care in the technique he employed in the operation and post-operative treatment. One of the questions may be given as an example:
"Q. Now, doctor, I am asking this question which I shall designate as number one, as to whether or not you are able to form an opinion as a physician and surgeon concerning a bilateral vein ligation performed by a physician and surgeon in good standing in this community, who limits his practice to general surgery, and in answering this question about this operation, your opinion is to be based upon the following facts, which you are to assume to be true. The facts as to this operation are as follows:"
Then follows a number of pages in which is related the various acts which the defendant claims he performed in connection with the operation upon and treatment of the plaintiff, concluding with the following query:
"The question now is are you able to form an opinion of that operation, from the above facts, as to whether or not, during this entire operation, with regard to the examination or determination of the solution which this surgeon injected into this patient during this operation, the surgeon did anything which *Page 374 failed to comply with the usual and customary care and practice of such surgeons, in performing, under the same or similar circumstances, such an operation in a Class A hospital or in any Class A hospital in this community or in similar localities. Are you able to form an opinion under these facts?"
Again the physician was permitted to state:
"Q. State your opinion and explain it. A. Because of my answer to the preceding question describing what I believe to be the character of operation done, I do not believe under those circumstances failed to do anything that he might have done for the benefit of this patient, more than what he did do."
Now, an expert may state what is the approved practice under certain circumstances, but it is not the function of an opinion witness to state that, in his opinion, the defendant physician exercised the proper care or technique in the particular case under consideration. In so doing, he clearly, invades the province of the jury and answers the very question which they are required to answer — did the defendant use due care? This type of questioning was improper and permitting answers thereto was undoubtedly extremely prejudicial to the case of the plaintiff. Error here intervened.
In the case of Mitchell v. Industrial Commission, 135 Ohio St. 110, 19 N.E.2d 769, the court at page 116 says:
"The court properly sustained the objection for the reason that such question was an ultimate issue for the jury. `The opinion evidence rule has never been so relaxed as to permit an opinion to be given on the precise ultimate fact in issue which is to be determined by the jury. Not even expert testimony is admissible for such purpose.' 17 Ohio Jurisprudence, 447, Section 352. See also Ohio Indiana Torpedo Co. v. Fishburn, 61 Ohio St. 608,56 N.E. 457, 76 Am. St. Rep., 437; Fowler v. Delaplain, 79 Ohio St. 279, 87 N.E. 260, 21 L.R.A. (N.S.), 100." *Page 375
And in Fowler v. Delaplain, 79 Ohio St. 279, at page 285,87 N.E. 260, 21 L.R.A. (N.S.), 100, the court says:
"Witnesses, if properly qualified, may testify as to facts of such evidential value as would assist the jury in arriving at its conclusions upon the determinative questions of the case; but if the vital issues involved in a cause can be decided upon the mere opinions of witnesses, however expert, as has often been remarked, juries might be dispensed with altogether. Ohio Indiana Torpedo Co. v. Fishburn et al., 61 Ohio St. 608;Railroad Co. v. Schultz, 43 Ohio St. 270, 282, 283."
The fifth assignment of error was the refusal to give plaintiff's special request No. 1. This charge is as follows:
"The court charges you that it was the duty of the defendant, Dr. Roof, in performing his services for the plaintiff, Towne R. Abercrombie, to exercise the skill, care and diligence which physicians and surgeons of ordinary skill, care and diligence would have exercised in their community under the same or similar circumstances. In considering whether or not such skill, care and diligence was exercised by the defendant, the jury can take into consideration any evidence which has been admitted by the court about the custom and practice indulged in by such physicians and surgeons. The court further charges you, that such custom and practice does not furnish a test which is conclusive or controlling on you on the question of negligence, nor does it fix a standard by which negligence is to be gauged; but conformity thereto is a circumstance that is to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised. The court further charges you that, if you find that there were customs or practices to which the defendant conformed but you further find that conformity to such customs or practices was dangerous *Page 376 in fact, then conformity to such customs and practices does not establish that the defendant exercised the skill, care and diligence required of him by law."
An operating surgeon is only responsible for failure to use the care which a reasonably prudent person would use under the same or similar circumstances and such duty is limited to those matters over which he has direct control and does not include matters within the jurisdiction of the hospital in which he operates.
Such operating surgeon is not responsible for the misuse of drugs prepared by the hospital unless the ordinarily prudent use of his faculties would prevent injury to a patient upon whom he operates.
We quote the 2nd, 3rd, 4th, 6th and 7th paragraphs of the syllabus in the case of Ault v. Hall, 119 Ohio St. 422,164 N.E. 518, 60 A.L.R., 128.
"2. In an action for negligence, conformity to custom or usage is a matter proper to be submitted to the jury for its consideration in determining whether or not ordinary care has been exercised.
"3. Customary methods or conduct do not furnish a test which is conclusive or controlling on the question of negligence or fix a standard by which negligence is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has been exercised.
"4. Methods employed in any trade, business or profession, however long continued, cannot avail to establish as safe in law that which is dangerous in fact."
"6. The duty of a surgeon to exercise due care to ascertain that no foreign substance is left in the abdomen of one operated on is not conclusively shown to have been performed by evidence that he followed the usual practice and custom of surgeons of relying on a count by the nurses of sponges used in the course of such operation. *Page 377
"7. In an action against a surgeon for malpractice the jury should be instructed that the plaintiff must show by a preponderance of the evidence and the jury must find that the defendant in the performance of his service either did some particular thing or things that physicians and surgeons of ordinary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances."
The defendant justifies the refusal to give this charge because of the words "in their community," stating that the physician might be justified by practices in places other than the "community" in which the surgeon operated. It will be noted that this language is more limited than that used in the seventh paragraph of the syllabus of the Hall case.
We agree also that the charge is really applicable to more than one proposition of law and would be better calculated to lead the jury if separated into its component parts. We cannot approve the charge for these reasons.
Error is charged as a sixth assignment in that the court refused the plaintiff's special request No. 3:
"The court further charges you that methods employed in a profession, however long continued, cannot avail to establish as safe in law which are dangerous in fact, if you find that such methods are dangerous in fact."
This charge is drafted in conformity to the syllabus in the case of Ault v. Hall, supra, previously quoted.
Some captious complaint is made of it by the defendant in that the word "that" does not appear. We consider the charge intelligible and correct.
Error intervened, prejudicial to the plaintiff, when it was refused. *Page 378
As the seventh and last assignment of error, it is claimed by the plaintiff that the court committed error in limiting plaintiff in his opening argument after the evidence. An examination of this situation causes us to conclude that the court in the exercise of its discretion over the trial of the cause did not abuse this discretion.
The plaintiff makes no special assignment of error of the failure of the court to define the issues, as is required.Baltimore Ohio Rd. Co. v. Lockwood, 72 Ohio St. 586,74 N.E. 1071.
In Simko v. Miller, 133 Ohio St. 345, 13 N.E.2d 914, the fifth paragraph of the syllabus is:
"5. In submitting a case to the jury, it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings, accompanied by such instructions as to each issue as the nature of the case may require.(Baltimore Ohio Rd. Co. v. Lockwood, 72 Ohio St. 586, approved and followed.)
The court in effect read the pleadings. He stated that he summarized them. As previously noted, his final statement merely instructed the jury that it was its duty to determine whether the defendant was negligent "in one or more of the particulars set out in the petition."
This case required that the court definitely outline to the jury the three specific elements of malpractice charged. Certainly, this, the trial court failed to do.
For the reasons given, the judgment of the Court of Common Pleas is reversed and the cause remanded for a new trial in accordance with law.
Judgment reversed and cause remanded.
HAMILTON, P.J., concurs in judgment.