William Twombly & wife vs. John T. G. Leach, 11 Cush. 397

Merrick, J. The bill of exceptions discloses several questions arising both from the admission of evidence, to which the defendant objected, and from the rejection of evidence which he offered to produce. 1. The inquiry as to the effect, upon the minds of the witness, her mother, and family, of the remarks said to have been made by the defendant concerning Dr. Kimball, was wholly immaterial. There was no evidence in the case that the plaintiffs ever desired to call in Dr.

Kimball, either for aid or consultation; and it does not appear from any thing stated in the bill of exceptions, that the expediency or need of employing another physician was ever spoken of, or thought of by the witness, the patient, or any member of her family. 2. The evidence of the effect of sugar of lead water upon the hand and wrist of the witness ought not to have been admitted.

The propriety of its application to the patient, and its effect upon her, were the proper and only material subjects of inquiry; and its effect upon another person free from the disease to which the patient was subjected, was quite irrelevant. Remedial agents may undoubtedly very often prove injurious if improperly used; and the more efficient they are, the more mischievous are likely to be the results of their misapplication. 3. The testimony that the husband plaintiff was an invalid, dependent for his support upon the labor of his wife, should have been excluded.

The suggestion in the written argument of the plaintiff’s counsel, that it was admissible, because the action was brought to recover damages for the loss of his wife’s services, seems to be founded upon a misapprehension of what the allegations in the declaration are. It certainly does not appear from the bill of exceptions that the action is brought for the purpose stated. 4. The testimony of Miss Twombly respecting the time when she first heard of the punctured wound, was immaterial and ought not to have been received upon either of the grounds upon which it is claimed to have been admissible.

It had no tendency to contradict any part of the reported testimony of Dr. Jenness; and it does not appear that the defendant, either before or after his attendance upon the patient, assigned this as the cause of the disease in her thumb. The physicians who were witnesses upon the trial, expressed the opinion that a punctured wound was one of several causes, which might produce or result in a whitlow or felon; but no evidence was offered to show that the defendant did or did not entertain a similar opinion. 5.

The interrogatory “ Is it good medical practice to say you open a thumb to cut off a nerve because it is already partly cut off,” should not, against objection, have been allowed to be put to the witness. The terms of the question certainly involve no medical act or practice whatever, but only a reason assigned for

an act. It was so framed as to be likely to mislead the witness, and his reported reply shows that it did mislead him. The physicians and surgeons should have been allowed to testify in reply to the several interrogatories proposed by the defendant, which were held by the presiding judge to be inadmissible. 1.

Evidence having been introduced on the part of the plaintiffs that the defendant spoke of cutting off the nerve, when he made the incision into the patient’s thumb, it was competent for him, in order to show the signification of the word, and to explain what he himself meant thereby, to prove that physicians and surgeons, in communicating with their patients, and other persons not professionally educated, use it to express either the fascia and sheath of a tendon, or the tendon itself. Birch v. Depeyster, 1 Stark. R. 210; 1 Greenl. Ev. § 280. 2.

The only objection taken by the plaintiffs to the second question was, that the answer might tend to mislead the jury, because it was not pointed with sufficient directness to the case treated by the defendant. Yet, though not thus particular" in its form, its object could not have been mistaken, and the general current of inquiry must have made it applicable to the matter immediately in issue. Besides; it would have been quite allowable to show in the first place what was the general rule, and then to add proof that the case treated by the defendant came within it.

Upon the question whether it be good medical practice to withhold from a patient in a particular emergency, or under given or supposed circumstances, a knowledge of the extent and danger of his disease, the testimony of educated and experienced medical practitioners is material and peculiarly appropriate. 3. The objection of the plaintiffs to the third and fifth ques tians that the opinions sought for were upon only a part of the case, ought not to have prevailed. The court could not foresee that the jury would not take the testimony of Lucinda P.

Twombly to be true, to the exclusion of the statements of all other witnesses, if in fact there was any diversity of statement in relation to the disease, the symptoms manifested, or the treatment prescribed by the defendant; and therefore he had a right to show that, assuming her whole narrative to be strictly accurate, his management of the case was skilful, judicious, and correct. 4. For a similar reason the defendant should have been permitted to propose the remaining question, which is clearly within the rule respecting the admissibility of the opinion of experts.

The replies of the medical witnesses would have been merely evidence to be considered, and thereupon allowed the effect to which they were justly entitled, and not, as is urged by the plaintiffs’ counsel, a substitution of the theories of experts for the judgment of the jury. New trial granted.