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Carbone v. Warburton

Decided: October 6, 1952.


Waesche, Hughes and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned). Waesche, J.s.c. (temporarily assigned; dissenting).


Appellant, Carbone, sued respondent, Warburton, a medical doctor, charging malpractice. At the trial Carbone offered one Dr. Sidney D. Jacobson, a New York physician, as an expert witness. After direct and cross-examination as to his qualifications, the trial court declared that he was not qualified and declined, on objection, to allow him to testify. Counsel then informed the court for the record that he intended to prove through the witness, by way of answer to certain hypothetical questions, that the defendant's treatment of Carbone "was not in accordance with the standards of skill, care and knowledge usually exercised by members of his profession." No other expert being produced, the action was dismissed for lack of proof of defendant's negligence. From the consequent judgment this appeal was taken.

The complaint recites that on July 21, 1946 appellant suffered a comminuted fracture of the left tibia and fibula about six inches above the ankle joint and that the defendant treated him on that day at St. Joseph's Hospital, Paterson, New Jersey. The specifications of negligence against him, as set out in the pretrial order, are that he malaligned the fracture and that he failed: (1) to remove infectious and other substances from the site of the fracture, thus causing

the soft tissues and bone to become infected, (2) to administer anti-tetanus treatments, (3) to irrigate the fracture properly, (4) to make proper inspections of the fracture, and (5) to "supervise" the injury properly after the leg was placed in a cast.

It is admitted that respondent is a licensed medical doctor of New Jersey and that he treated appellant for a fractured left leg. Beyond this admission the appendix before us does not disclose whether the treatment was administered in the capacity of general practitioner or specialist, and therefore we assume that it was given as a general practitioner.

Accordingly, what duty did Dr. Warburton owe Carbone? The law is clear that when a physician accepts a patient he is required to have and to exercise in the diagnosis and treatment the skill normal to the average member of the profession. Hull v. Plume , 131 N.J.L. 511 (E. & A. 1944); Lolli v. Gray , 101 N.J.L. 337 (E. & A. 1925); Gramaldi v. Zeglio , 3 N.J. Misc. 669 (Sup. Ct. 1925); Klitch v. Betts , 89 N.J.L. 348, 353 (E. & A. 1916); Policastro v. Lahnecker , 12 N.J.L.J. 269 (Sup. Ct. 1889); Smith v. Corrigan , 100 N.J.L. 267, 272 (Sup. Ct. 1924); Restatement of the Law -- Torts, sec. 299 d; 41 Am. Jur., Physicians and Surgeons, sec. 82, p. 200; sec. 87, p. 205. In application this general rule may be related to the grade or class or type of physician involved without difficulty. If he is a general practitioner he must use in the care of his patient the skill normal to the average member of his profession practicing as such. Policastro v. Lahnecker, supra. On the other hand, one who holds himself out as a specialist must employ not merely the skill of a general practitioner, but also that special degree of skill normally possessed by the average physician who devotes special study and attention to the particular organ or disease or injury involved, having regard to the present state of scientific knowledge. Coleman v. Wilson , 85 N.J.L. 203 (E. & A. 1913); Hopkins v. Heller , 59 Cal. App. 447, 210 P. 975, 976 (Dist. Ct. App. 1922).

When a physician is charged with negligence in the diagnosis or treatment of a patient's condition it must appear that he departed from the degree of skill required of him. And in order to demonstrate this ultimate fact two elements of proof are essential. First, those standards must be established which are generally recognized and accepted by the branch of the profession to which he belongs as the customary and proper methods of diagnosis or treatment of the physical or mental condition concerned in the inquiry. Secondly, a departure from such standards under circumstances justifying the conclusion of want of the requisite degree of care. Hull v. Plume, supra; Sinz v. Owens , 33 Cal. 2 d 749, 205 P. 2 d 3, 8 A.L.R. 2 d 757 (Sup. Ct. 1949) McGraw v. Kerr , 23 Colo. App. 163, 128 P. 870 (Ct. App. 1912); Anderson v. Chasney , 4 D.L.R. 458 (K.B. 1948); Adolay v. Miller , 60 Ind. App. 656, 111 N.E. 313 (App. Ct. 1916); Adkins v. Ropp , 105 Ind. App. 331, 14 N.E. 2 d 727 (Ind. App. Ct. 1938); Hill v. Parker , 122 P. 2 d 476, 12 Wash. 2 d 517 (Sup. Ct. 1942); Fritz v. Horsfall , 163 P. 2 d 148, 24 Wash. 2 d 14 (Sup. Ct. 1945); 7 Wigmore on Evidence, sec. 2090 (a), p. 453; Rogers, Expert Testimony, sec. 165.

The establishment of the standards of practice and departure therefrom is a matter for expert testimony, except in those unusual cases where the conduct required by the particular circumstances is within the common knowledge of laymen. Hull v. Plume, supra; Sinz v. Owens, supra; McGraw v. Kerr, supra; Anderson v. Chasney, supra; 7 Wigmore on Evidence, sec. 2090 (a), p. 453; Rogers, Expert Testimony, sec. 153, p. 361. It seems plain that what constitutes proper treatment is a medical question to be presented by experts and that neither the courts nor jurors can be permitted to say or to speculate as to what technique should be utilized for a certain disease or injury or how a specific surgical operation should be conducted. As the King's Bench put it in Anderson v. Chasney, supra , the courts "are dependent upon the medical profession for evidence of the proper routine,

treatments and technique." If no standard is established through medical witnesses, then the jury has no standard by which to gauge the basic issue of fault of the physician. McGraw v. Kerr, supra.

In this connection the need for expert testimony does not mean that the witness must be a specialist, although the fact that he is not may be taken into consideration in weighing his testimony. 54 A.L.R. 860, 861; Rogers, Expert Testimony, sec. 156, p. 365. "Expert" here means skilled, that is, that the witness possesses special knowledge and skill upon the subject matter about which he is called to testify. 20 Am. Jur., Evidence, sec. 784. And, of course, it has long been established that a person may qualify as an expert in this sense through actual experience or theoretical knowledge based upon special study of the subject. Rogers, Expert Testimony, sec. 176, p. 384; 20 Am. Jur., Evidence, secs. 783, 784.

The appeal in the present case must be appraised in the light of these fundamental and controlling principles. Appellant urges that the action of the trial court in rejecting his expert medical witness as unqualified and in dismissing the action was erroneous for two reasons. Primarily the claim is that when a person meets the statutorily prescribed educational standards of a state and is licensed to practice medicine by the proper authorities, as a matter of law he automatically becomes qualified and competent to testify in any field of medicine or surgery, and the weight of his testimony is for the jury to determine. Secondly, it is asserted that if the trial court had the discretionary power to pass upon the qualifications of the witness, consideration of all the facts demonstrates that he was guilty of a mistaken use of that discretion.

To support the first argument reference is made to Castner v. Sliker , 33 N.J.L. 507 (E. & A. 1869), Young v. Stevens , 132 N.J.L. 124 (E. & A. 1944), and McGhee v. Raritan Copper Works , 133 N.J.L. 376 (Sup. Ct. 1945). These cases indicate that our courts have shown a marked liberality

in dealing with the competency of medical witnesses to testify as to the relation between trauma, occupational hazards and the like, and alleged results thereof.

In Castner v. Sliker, supra , a treating physician, who was a general practitioner, was held qualified to give an opinion as to the manner in which a certain eye injury could be caused, the Court of Errors and Appeals saying:

"The witness said he was a physician. This, in common parlance, means one skilled in both medicine and surgery. The statute of this state on the subject, requires that anyone receiving a license to practice as a physician and surgeon shall be skilled both in medicine and surgery and in anatomy. If the witness was a physician in these acceptations of the term, he was an expert in the very matters required for this opinion, anatomy and surgery. The question was legal and proper."

To substantially the same effect is Young v. Stevens, supra , and McGhee v. Raritan Copper Works, supra , expounds the doctrine that a general practitioner, who is versed in the field of neurology, is competent to advance an opinion as to the relation between an accident and a traumatic neurosis, even though he is not a specialist. The inability to qualify as a specialist goes to the weight of the testimony and not to its competence.

However, there is no case in New Jersey to the effect that mere possession of a license to practice medicine without more renders the holder competent to express an opinion in an action based upon damage resulting from alleged negligent care or treatment of a patient by a physician. And in our judgment the rule represented by the cases to which reference has just been made cannot be extended to such an action. The reason seems obvious. As already pointed out, in malpractice cases proof of the standards recognized and applied by the medical profession in the situation under investigation must be introduced, as well as proof of such a deviation therefrom as would warrant a determination of culpability. This evidence can come only from one who, through experience or study or both, knows the standards. Therefore, a

showing of such knowledge is a prerequisite to the competency of the proffered medical witness.

We agree with the view taken by Wigmore (sec. 2090 (a)) that:

"On any and every topic, only a qualified witness can be received, and where the topic requires special experience, only a person of that special experience will be received. If therefore a topic requiring such special experience happens to form a main issue in the case, the evidence on that issue must contain expert testimony, or it will not suffice.

Now, such an issue is rarely found. Generally the topics on which only an expert witness can be received form usually but one element in the main issuable fact. Moreover, generally the parties are eager enough to produce such expert testimony without any rule to require them. It happens, however, that in one class of cases, viz. , actions against a physician or surgeon for malpractice, the main issue of the defendant's use of suitable professional skill may be a topic calling for expert testimony only * * *.

Here the courts have been obliged to insist on the dictate of simple logic resulting from the principle above cited, that expert testimony on the main fact in issue must somewhere appear in the plaintiff's whole evidence; and for lack of it the court may rule in its general power to pass upon the sufficiency of evidence that there is not sufficient evidence to go to the jury."

We find in the decisions throughout the country in medical malpractice actions frequent references to the difficulties of proof faced by a tortiously injured patient, and to the "well known" reluctance of the members of the medical profession to testify for such a patient. For example, in Tadlock ...

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