Barbour v. Martin

Evidence. A physician who leaves a patient, at a critical stage of the disease, without reason, or sufficient notice to enable the party to procure another medical attendant, is guilty of a culpable dereliction of duty; hence, it cannot be said, in an action against a physician for such alleged misconduct, that a conversation between the patient and a third person, which tended to show the former’s ignorance of the doctor’s absence from town, is so irrelevant as to make it immaterial whether the exclusion of part of that conversation was proper or improper. Where a witness, called by the defence, relates a portion of a conversation, stating that he heard no more because he then left the room, the plaintiff cannot properly be prevented from introducing other witnesses to prove the whole conversation, including that which occurred after, as well as before, the first witness left the room.

On exceptions to tbe ruling of tbe justice of tbe superior court. Case, brought by an administrator to recover damages of a physician for malpractice in a case of obstetrics. The plaintiff alleged as one of the grounds of action that the defendant left the intestate on Tuesday, while she was sick, and went to Bangor, where he remained three days, during which time, viz., Wednesday night, she was delivered of a child, being attended by other physicians, and died. The plaintiff asserted that Dr. Martin did not inform the deceased of his intended absence, nor did any of her family have any idea that he had left town ; but this was denied by him, he alleging that he told her he was going, and that she must get another physician, if she had occasion for the services of one during his absence. He called to the stand a Mrs. Graffam, who stated that when the deceased was taken so much sicker, and her husband went for the doctor, the lady said she had rather have Dr. Martin because she had had him once; that she heard nothing said about his being away, but added: “I was not in the room much, for I had the little girl to take care of.” The plaintiff then called the husband, and proposed to prove the whole conversation that then passed between him and his wife ; to this the defendant objected, and the presiding judge excluded so much of it as occurred in the absence of Mrs. Graffam. The verdict being against him, the plaintiff excepted to this ruling. After the defence had elicited part of a convei’sation, we were entitled to the rest. The Queen’s case, 2 Brod. & Bing., 298 ; Clark v. Smith, 10 Conn., 1; Commonwealth v. Clark, 14 Gray, 373; Commonwealth v. Goddard, Id., 403-4; Sherwood v. Tit-man, 55 Penn. St. R., 77. In this last case it was held admissible as independent testimony. One version of a conversation having been given, why could we not call any number of other persons who heard it, to state their recollection of it. It is immaterial that it was a fact we could not have originally introduced ; after the defence had made it part of the case, we were entitled to have it presented as it really was. They could not select one witness and claim that her particular version only should be admitted. The statement made by Mrs. Graffam does not partake of the ordinary nature of the recital of a conversation, or of part of one. In answer to a general question, so put as to avoid its being leading, she repeated a remark she once heard the intestate make, not called for by us, and entirely immaterial and irrelevant. Upon the subject of Dr. Martin’s going away — the material point — she testified she heard nothing said. The inquiry as to what she heard must have had reference to a time when she was present; therefore the limitation imposed by the court, was proper and necessary. The finding of the judge that the excluded testimony was not part of the conversation inquired about of Mrs. Graffam, and did not relate to the same subject matter, is a determination of a preliminary question, upon which his decision is final and not open to exception. Gorton v. Hadsell, 9 Cush., 511; Lake v. Clark, 97 Mass., 349. The excluded testimony was so immaterial and irrelevant that the plaintiff could not have been injured or aggrieved by its exclusion. Webster v. Calden, 55 Maine, 165, and 56 Maine, 204. As it is not stated what further the husband would have said relative to the conversation, and there was no offer to prove any specific matter, we cannot presume that what he retained in his own breast, was so material to the issue that the plaintiff was aggrieved by its suppression. State v. Bartlett, 55 Maine, 200, 214. There was no evidence that the doctor ever engaged to attend the deceased during her sickness, or for any length of time, or that he would remain at home subject to her call, regardless of all other engagements. She could dismiss him at any time, and he could, at any time, decline to attend further. Hence, there is no foundation for the action, and, of course, none for the exceptions, . which become entirely immaterial.