Opinion
6 Div. 542.
January 20, 1927. Rehearing Denied March 31, 1927.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Stokely, Scrivner, Dominick Smith, of Birmingham, for appellants.
The duty, care, skill, and diligence required of physicians and surgeons is such reasonable and ordinary care, skill, and diligence which physicians and surgeons in the same general neighborhood in the same general line of practice ordinarily have and exercise in a like case. Hamrick v. Shipp, 169 Ala. 171, 52 So. 932; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863; Barfield v. South Highlands Inf., 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Sellers v. Noah, 209 Ala. 103, 95 So. 167. Infallibility in the diagnosis and treatment of disease is not required of a physician or surgeon. Talley v. Whitlock, supra; Hamrick v. Shipp, supra. Unless so provided by contract, a physician or surgeon does not warrant that he will effect a cure. Knowles v. Blue, 209 Ala. 27, 95 So. 481. Bad result is no evidence that the physician or surgeon failed to use proper care, skill, and diligence. Dashiell v. Griffith, 84 Md. 363, 35 A. 1094; Hoffman v. Watkins, 78 Wn. 118, 138 P. 664; Bonnet v. Foote, 47 Colo. 282, 107 P. 252, 28 L.R.A. (N.S.) 136; Carstens v. Hanselman, 61 Mich. 426, 28 N.W. 159, 1 Am. St. Rep. 606; Goodman v. Bigler, 133 Ill. App. 301. The statement of the deceased as to sterilization of the needle was admissible as a statement against interest. Knowles v. Blue, supra; Reedy v. Kelley, 208 Ala. 305, 94 So. 86. Plaintiff had a right to deny or explain such admission, but not to go further and introduce self-serving declarations. Granger v. Farrant, 179 Mich. 19, 146 N.W. 218, 51 L.R.A. (N.S.) 453; Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Reeves v. Reeves, 207 Ala. 362, 92 So. 551.
Black Fort and G. Ernest Jones, all of Birmingham, for appellee.
The condition of the patient after treatment may be shown in evidence, and may have probative value on the question of improper treatment. Shockley v. Tucker, 127 Iowa, 456, 103 N.W. 360; Hickerson v. Neely (Ky.) 54 S.W. 842; Moratzky v. Wirth, 67 Minn. 46, 69 N.W. 480. The case was properly submitted to the jury. Sellers v. Noah, 209 Ala. 103, 95 So. 167; McDonald v. Harris, 131 Ala. 359, 31 So. 548; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863; Barfield v. South Highlands Inf., 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; Shelton v. Hacelip, 167 Ala. 217, 51 So. 937; Talley v. Whitlock, 199 Ala. 28, 73 So. 976; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.
"A civil action for malpractice against a physician and surgeon may be sustained on proof of a failure to exercise reasonable and ordinary care, diligence and skill in respect to the duty so assumed and undertaken as physician and surgeon — such care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice, ordinarily employ and exercise in a like case. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Carpenter v. Walker, 170 Ala. 659, 54 So. 60, Ann. Cas. 1912D, 863; Shelton v. Hacelip, 167 Ala. 217, 51 So. 937; McDonald v. Harris, 131 Ala. 359, 31 So. 548; 30 Cyc. 1575; 14 Am. Eng. Ency. Law (1st Ed.) 76, 78." Talley v. Whitlock, 199 Ala. 28, 73 So. 976; 21 R. C. L. 381, § 27.
Obvious corollaries to this rule of liability are that a physician or surgeon, unless by express undertaking, does not warrant a cure or a successful result, and is not liable for an honest mistake or error of judgment in making a diagnosis, or prescribing a mode of treatment, where the proper course is subject to reasonable doubt. Barfield v. S. H. Infirmary, 191 Ala. 553, 68 So. 30, Ann. Cas. 1916C, 1097; 21 R. C. L. 391, § 35.
In this case the burden of proof was on the plaintiff to show either negligence or want of proper knowledge and skill on the part of the defendants, in their professional treatment of the intestate, which proximately caused the infection — septicæmia — following Dr. Rosamond's hypodermic injection of cocodylate of soda into the patient's arm. And the mere possibility of such a result is not sufficient. Holtzman v. Hoy, 118 Ill. 534, 8 N.E. 832, 59 Am. Rep. 390; State v. Housekeeper, 70 Md. 162, 16 A. 382, 2 L.R.A. 587, 14 Am. St. Rep. 340; Friend v. Kramer, 236 Pa. 618, 85 A. 12, Ann. Cas. 1914A, 272.
The doctrine of res ipsa loquitur does not apply to the mere fact of a blood infection, however closely, in temporal sequence, it may follow a medical treatment. "The burden of proof is not shifted by showing that an unsuccessful result has attended the treatment of the patient by the physician. Nor does the unsuccessful result of the case shift from the plaintiff to the defendant the burden of going forward." 21 R. C. L. 407, § 49, citing Sweeney v. Erving, 35 App. D.C. 57, 43 L.R.A. (N.S.) 734, affirmed in 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann. Cas. 1914D, 905, and note; Gillett v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am. St. Rep. 639, note 665.
A very thorough examination of the evidence in this case fails to discover anything that has any tendency to show that Dr. Rosamond was lacking in the required knowledge or skill in his profession, or that he was guilty of any negligence in the treatment of the intestate. In fact, the undisputed evidence affirmatively shows, as to every element involved in the issue, an entire absence of culpability. We infer from the record of the trial that plaintiff relies mainly upon the fact that the intestate's arm became infected and inflamed for the first time within a day or two after the last treatment (by Dr. Rosamond) on December 2d; thereby establishing the relation of cause and effect and permitting the inference of negligence or want of skill in the treatment. But, conceding the relation in some degree of cause and effect, this would not permit a reasonable inference of culpability on the part of the physician. Such an inference would be at best a mere conjecture — consistent, indeed, with the facts, but only one of a number of equally plausible guesses, none of which finds any definite support in the evidence. Southern Ry. Co. v. Dickson, 211 Ala. 481, 486, 100 So. 665.
The declarations of the intestate made to Dr. Smith on the occasion of his treatment that he followed after a patient who had an infection, and that he did not know whether the doctor (Rosamond) washed his hands or not, were erroneously admitted in evidence over seasonable and apt objections. They were wholly unrelated to the intestate's statement, also made to Dr. Smith, and previously brought out by defendants, that the needle used by Dr. Rosamond was boiled before it was used; and hence their admission cannot be justified under the principle that, where one party brings out a part of a conversation, the other party is entitled to bring out the whole of it, though it would otherwise be objectionable on the ground that it was hearsay or a self-serving declaration. The other part of the conversation, to be admissible, must relate to the same subject-matter, so as to illustrate the true meaning and import of the statement first admitted against the party. Troy Fertilizer Co. v. Logan, 90 Ala. 325, 329, 8 So. 46; McLean v. State, 16 Ala. 672, 675. Of course, had the intestate made any further statement as to the condition of the needle with respect to its sterlization, that would have been admissible under the principle stated.
But the statements in question, though suggestive of speculation, did not tend to support the theory of negligence on the part of Dr. Rosamond; and his testimony in negation was full and complete.
The only other matter which seems to call for notice is the statement imputed by one of plaintiff's witnesses to the defendant, Dr. Moore, when he was called into service for the treatment of the intestate's infection, viz. that he could not tell what caused the trouble, but that "it must have been either a needle that was not sterile, or using the wrong kind of medicine." In view of Dr. Moore's testimony as to the several other sources from which the infection may reasonably have arisen, this statement was admissible — a proper predicate having been laid — to impeach his credibility as an expert witness. But it was not evidence tending to show that the infection came from an unclean needle or improper medicine, the contrary of which was shown by other undisputed and unimpeached testimony.
Our conclusion is that the trial judge erred in refusing to give for the defendants the general affirmative charge, as duly requested, and the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.