If there was any evidence which was competent to go to the jury on the first cause of action, there certainly was no evidence of damage suffered. Up to the time plaintiff left the hospital against the advice of the doctors on the 15th of March, he was rapidly improving. He complains: (a) That his hand was bathed in water of improper temperature; (b) that respondents failed to lance the finger deep enough properly to drain the pus; (c) that respondents failed to remove a piece of metal from the finger; (d) that gauze was inserted in the incision too tightly to permit drainage; and (e) that respondents failed to examine the incisions frequently enough. There is no expert testimony as to (b) and (d). A layman's opinion on these matters would not be sufficient. There may be acts of commission or omission which a jury of intelligent laymen could say were negligence. I doubt if (a) or (e) are of this character, but even if there is evidence of such acts which could go to the jury without expert testimony that it did not constitute the treatment usually employed by skilled and competent physicians in that locality, there certainly was no evidence that it did any harm. As to (c) there is no evidence that there was any metal in the finger to take out. Dr. Randall testified that he found none. If there was any negligence, the patient improved because or in spite of it — most of us would be satisfied with treatment that brought recovery. I concur in the findings *Page 319 of the prevailing opinion that the directed verdict for the defendants on the first cause of action was proper. On the 15th of March the relationship of doctor and patient was terminated by the acts of plaintiff. Any advice the doctors gave him prior to his departure was because of their solicitation for his future. Such ministrations, if according to standard, cannot be converted into a basis of liability.
I concur with the findings of that opinion that the directed verdict on the second cause of action was improperly directed, but for a different reason. We must assume the evidence in its most favorable light for the plaintiff in testing this motion. I think there was sufficient evidence to go to the jury on the question as to whether the defendants reassumed the relationship of doctor and patient on March 17th. The plaintiff was told to come to the doctor's office; Dr. S.M. Budge examined the hand; Dr. D.C. Budge scraped it and indicated that it would have to be opened. They thereupon sent the patient to what was, to all intents and purposes of this case, their hospital. The jury might well come to the conclusion that they sent him to their hospital only on the assumption that they intended to treat him. If the jury should find that the relationship of doctor and patient had been resumed on March 17th, which it well might, they would next have to determine whether the doctors abandoned that relationship with too peremptory a notice under such circumstances as would make the plight of the plaintiff more dangerous and in such a way as not to give him opportunity to procure other medical aid in order to make the transition from one doctor to another without substantial hazard. I think there was evidence to go to the jury on this issue.
As to whether the several hours' delay and plaintiff's having to walk out in the rain aggravated the danger or made recovery more difficult, or resulted in the loss of the finger which might have been otherwise saved, is for the jury if there is evidence to go to it on that point. While I have some doubt as to whether there is competent evidence on this *Page 320 point, I think the doubt must be resolved in favor of plaintiff and that it was for the jury. There certainly may have been prolonged suffering by the delay and on that element the jury may find him entitled to some damages.
There are several assignments of error on rulings rejecting evidence, which, since this opinion was written, the main opinion now mostly covers. Error in every case, if any, was inconsequential. The sustained objections to the questions as to the number of children and financial condition of plaintiff were proper rulings. The answers sought to be elicited were immaterial. The question as to whether plaintiff "suffered great mental anguish" was too ultimate to be proper. Objection was properly sustained on the ground that it was a conclusion. The call should have been for the underlying fact of plaintiff's state of mind so this might or might not be inferred.
Plaintiff was asked whether, at the time Dr. Budge came to him in the hospital on March 17th, he was "prepared for another operation." This was equivalent to asking him if he "was ready" for another operation. It is difficult to see how it could be broken down into more elemental constituents. It was the same as asking him if he was then willing that the doctor go ahead and operate. The sustaining of the objection was error.
The plaintiff was asked to describe the treatment he gave to his hand at home as compared to that given at the hospital. The question was plainly improper in form. The witness, if the question was at all material, should have been asked what treatment he gave his hand at home and the jury be left to make the comparison. But on the theory that there was not a continuing relationship of doctor and patient between March 15th, when plaintiff left the hospital, and March 17th, when he returned to the clinic, the question is immaterial. The objection was properly sustained.
The other assignments were not argued in the brief.