“Ordinarily, expert medical opinion evidence, based on suitable hypotheses, is required, when the subject-matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact . . . ; but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary.”
How later courts described this case
- “Ordinarily, expert medical opinion evidence, based on suitable hypotheses, is required, when the subject-matter to be inquired about is presumed not to be within common knowledge and experience and when legal inference predominates over statement of fact . . . ; but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary.”
- “but where the matters are within the experience and observation of the ordinary jurymen from which they may draw their own conclusions and the facts are of such a nature as to require no special knowledge or skill, the opinion of experts is unnecessary”
Written by the judges who cited it.
The opinion
Conway, J.
(concurring). I concur in the result. I dissent from that portion of the opinion which holds that the trial court was in error in not permitting Dr. Colmers to testify as an expert. The entire testimony of this witness is brief and I shall quote it:
“
Direct Examination by Mr. Hertel: Q. Dr. Colmers, you are a regularly licensed and practicing physician and surgeon of the State of New York? A. That is right. Q. And you have been for how long? A. I am living three years in this country. * * * Q. Prior to that time, where did you obtain your preliminary education? A. In the Universities of Heidelberg and Munich in Germany. Q. In what year? A. I was assistant in 1899 until 1909. Ten years for educational research. Q. When did you graduate in medicine? A. 1899. Q. Tell us what institutions you were connected with since that time. A. I was assistant in the surgical clinic of the University. of Heidelberg and of Munich, and then I was chief surgeon to the hospital at Coburg, in Germany, and have been for more than six years chief surgeon at the hospital of six hundred beds. Then I was surgeon for ten years on the staff of the Red Cross Hospital at Munich, Germany, on the hospital staff.
*400
Q. Did you specialize in any particular form of medicine or surgery? A. General surgery. Q. Since you have come to the United States, with what hospitals have you been or are you now associated? A. With Lenox Hills Hospital. Q. Any other hospitals? A. No.
“ By the Court: Q. When were you licensed in the State of New York? A. May 3, 1936.
“ By Mr. Hertel: Q. Doctor, while you were practicing in Germany, were you then familiar with the treatment of osteomyelitis, not only in Germany but in
other countries
of the world? A. Fes,
I read about it in other countries,
and I have seen quite a lot of cases in Germany, too, because it is a frequent disease in this country. Q. Is there any difference in the treatment of osteomyelitis in Germany or in any other country? * A. No. Mr. Martin: I object to that. The Court: Objection sustained. The witness says he read about treatment in other countries. Mr. Hertel: I respectfully except. Q. Did they coincide with the treatments in Germany? Mr. Martin: I object to what he read as hearsay. The Court: Objection sustained. He has no personal knowledge, according to his own testimony, of- the treatment of this disease anywhere except possibly in Germany. Mr. Hertel: I respectfully except. May we have a talk with your Honor about this before we go any further? The Court: No, I will listen to your questions and I will rule immediately. I do not believe in bench conferences. Q. Doctor, are you familiar with the proper and competent treatment of osteomyelitis? Mr. Martin: I object to the form of that question, based upon his previous answer. The Court: It is too general. Objection sustained. Mr. Hertel: Exception. Q. Doctor, assuming that a boy eight years of age — The Court: Pardon me, Counselor, if I may. Doctor, in Germany during your practice there, how many cases of osteomyelitis did you treat personally? The Witness: I cannot tell you the exact number, but I am sure they were several hundreds. Mr. Hertel: The reason I wanted to speak to your Honor was, if your Honor is going to rule that this man is not competent to testify as to the
*401
proper practice
in America in 1932,
then there is no sense in wasting any time in asking a long hypothetical question. Mr. Martin: I am going to object just on that ground. The Court: If such an objection is made, I will sustain the objection. Mr. Martin: I make such an objection. Mr. Hertel: I respectfully except. The Court: What may be recognized in some school of medicine or surgery somewhere else in the world I cannot allow to be testified to in a court of this State and country. Doctors practicing in the State of New York are not required to recognize any practice that may be in vogue anywhere else. They follow the practice in this State and this country. That is all they are responsible for. Foreign methods may be good or bad. We have got to take the judgment of our own surgeons and physicians right here as to their recognized, approved practice.”
This was clearly not error. The defendant physicians impliedly represented to the plaintiff that they possessed and the law placed upon them the duty of possessing that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the
locality
in which they practiced.
(Pike
v.
Honsinger,
155 N. Y. 201 at 209 .)
Lehman, Ch. J., Loughran, Finch and Desmond, JJ., concur with Rippey, J.; Conway, J., concurs in result in separate opinion in which Lewis, J., concurs.
Judgments reversed, etc.