reversing judgment for plaintiff where all the evidence, including plaintiffs expert medical testimony, “shows no fact or circumstance from which the jury could have found or inferred” that the defendant doctor was negligent
How later courts described this case
- reversing judgment for plaintiff where all the evidence, including plaintiffs expert medical testimony, “shows no fact or circumstance from which the jury could have found or inferred” that the defendant doctor was negligent
- defining “presumption” and “rebuttable presumption”
Written by the judges who cited it.
The opinion
Mobley, Justice,
dissenting. I dissent from division 3 of the majority opinion and from the judgment reversing the Court of Appeals. The court’s opinion in division 3, while not denominating what acts of negligence are referred to, obviously deals with the plaintiff’s allegations of negligence “(1) in manipulating the catheter so roughly while it was in his body that a portion thereof was broken off,” and “(12) in forcing the catheter against hard and sharp obstructions in his artery.” In my opinion, there was sufficient evidence to withstand a motion for a nonsuit and to take the case to the jury on these two alleged acts of negligence.
These allegations refer to the manner of using the catheter. They present neither a question of correctness of diagnosis nor of choice of remedy, method of care or of treatment of a patient. Accordingly, they do not fall within the general rule stated in division 2, that laymen, even jurors and courts, are not permitted to say what is proper medical and surgical treatment. But these allegations come under the exceptions therein referred to; and the testimony of Dr. Shea as to what he did, and of Dr. Ross as to the condition of that part of the catheter left in the patient’s artery, would authorize the jury to infer that the defendant was negligent as alleged in the allegations of negligence quoted above.
I am authorized to say that Justice Head concurs in this dissent.