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201 F.2d 204

Docket No. 11513.

Goodwin v. Hertzberg

District of Columbia Circuit Court of Appeals

Argued Nov. 18, 1952.

Decided Dec. 22, 1952.

District of Columbia Circuit Court of Appeals · decided 1952-12-22

2 counsel of record

Key passage — most relied on by later courts

“Malpractice is hard to prove. The physician has all of the advantage of position. He is, presumably, an expert. The patient is a layman. The physician knows what is done and what is its significance. The patient may or may not know what is done. He seldom knows its significance. He judges chiefly by results. The physician has the patient in his confidence, disarmed against suspicion. Physicians like lawyers, are loath to testify a fellow craftsman has been negligent, especially when he is highly reputable in professional character, as are these defendants. In short, the physician has the advantage of knowledge and of proof. This increases when he is a specialist. What therefore might be slight evidence when there is no such advantage, as in ordinary negligence cases, takes on greater weight in malpractice suits.”

quoted by 5 later decisions, including Chambers v. Tobin, Perkins v. Hausladen

Relies on Shewmaker v. Capital Transit Co. · Christie v. Callahan · Byrom v. Eastern Dispensary & Casualty Hospital

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1952-12-22

How this case has been cited

Cited by 40 later decisions — most recently April 1992 · most notably Canterbury v. Spence (1972), Washington Hospital Center v. Robert Butler, Administrator of the Estate of Beatrice H. Butler, Deceased, James E. Wissler v. Robert Butler, Administrator of the Estate of Beatrice H. Butler, Deceased (1967)

16 federal appellate · 3 district · 19 state decisions

14019521960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*205Philip W. Amram, Washington, D. C., for appellants.

¶2John R. Daily, Washington, D. G, with whom H. Mason Welch and J. Harry Welch, Washington, D. G, were on the brief, for appellee.

¶3Before EDGERTON, CLARK, and FAITY, Circuit Judges.

¶4PER CURIAM.

¶5This is a suit for personal injuries alleged to have been caused to the appellant Mrs. Goodwin by surgical malpractice of the appellee. After a long trial the jury disagreed and was discharged. The court refused to grant a new trial .and directed judgment for the appellee. The question is whether there was enough evidence of negligence to entitle appellants to a new trial.

¶6In performing an operation in which it was necessary to use care not to perforate the patient’s urethra, appellee perforated it. On the witness stand he said “I must have made the opening myself in the process of operation. I am only human.” Moreover the evidence of negligence was not confined to this original operation. In our opinion the case should have been submitted to a second jury.

¶7“The rule applicable in the District of Columbia on a motion for a directed verdict, in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury … Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 103, 143 F.2d 142, 143. It is immaterial that no expert testified that appellee acted negligently. “Malpractice is hard to prove. The physician has all of the advantage of position. … What therefore might be slight evidence when there is no such advantage, as in ordinary negligence cases, takes on greater weight in malpractice suits. … Generally speaking, direct and positive testimony to specific acts of negligence is not required … Christie v. Callahan, 75 U.S.App.D.C. 133, 135, 136, 147, 124 F.2d 825, 827, 828, 839. In surgical cases especially there are “ … many instances where the facts alone prove the negligence, and where it is unnecessary to have the opinions of persons skilled in the particular science to show unskillful and negligent treatment.’ ” Byrom v. Eastern Dispensary & Casualty Hospital, 78 U.S.App.D.C. 42, 43, 136 F.2d 278, 279.

¶8Remanded for a new trial.

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