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Young v. Stevens

Decided: September 14, 1944.

PETER YOUNG, PLAINTIFF-RESPONDENT,
v.
DR. J. THOMPSON STEVENS, DEFENDANT-APPELLANT



On appeal from a judgment of the Supreme Court.

For the defendant-appellant, Morris Pashman.

For the plaintiff-respondent, David Cohn.

Donges

The opinion of the court was delivered by

DONGES, J. This appeal is from a judgment of the Supreme Court entered after a trial at the Passaic Circuit.

Plaintiff sued two physicians for alleged malpractice in the treatment of plaintiff. A judgment of nonsuit was entered as to the defendant Crescenti. Plaintiff had a verdict against the defendant-appellant, Stevens.

It appears that the plaintiff consulted Dr. Stevens, who was a specialist in the use of X-ray, in September, 1939. There is a dispute in the evidence as to the diagnosis then made by Dr. Stevens. Plaintiff testified that the doctor told him that the sore at the base of his spine was a pilonidal cyst and recommended X-ray treatments. The defendant testified that he diagnosed the trouble as a furunculosis. The weight of the evidence seems to be that X-ray is not a proper treatment for pilonidal cyst. As to its use for furunculosis, there is a difference of opinion in the proofs. The testimony of physicians who subsequently treated plaintiff was that he was suffering from pilonidal cyst, which was removed by surgical operation.

Appellant filed sixty-nine grounds of appeal which are argued under thirteen points in his brief. Some grounds of appeal are not argued and are, therefore, taken to be abandoned.

Appellant's first point is that it was error to permit certain expert testimony to be given by witnesses who were licensed physicians. The questions had to do with X-ray and the like, and the argument is that because these physicians did not hold themselves out as specialists in that branch of the profession they were not competent to testify thereon. It is well established that having qualified as medical doctors they are competent to testify on all medical subjects upon which they claim sufficient ability to express an opinion. The qualification of an expert is for the determination of the trial court and such determination will not be disturbed where the ruling is supported by evidence, Schnoor v. Palisades Realty, &c., Co., 112 N.J.L. 506. If they do not possess sufficient knowledge that deficiency may be disclosed on cross-examination. The objection now made goes to the weight to be accorded such opinion evidence rather than to its competency.

The next point concerns certain remarks made by the trial court in the hearing of the jury, which are said to have prejudiced the defendant. None of the incidents now pointed out was objected to at the time, and no action by the trial judge regarding them was requested. Appellant is not now in a position to claim error by reason thereof. The incidents most strongly urged occurred during examination of witnesses by plaintiff's attorney and tended to plaintiff's disadvantage, if at all, rather than the defendant's.

It is urged that the court erred in refusing to grant a nonsuit upon the ground that there was no proof of a willful or wanton injury, and also that it was error to refuse to charge the jury they must find the defendant willfully and wantonly inflicted injury upon the plaintiff. The complaint charged negligence, carelessness and lack of skill, and in the seventh paragraph alleged: "the defendants themselves, and their duly authorized servants and assistants, did carelessly, negligently, improperly and unskillfully perform the services upon the plaintiff, * * * and did by themselves and by their duly authorized servants ...


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