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84 Me. 497

Lewis v. Dwinell

Supreme Judicial Court of Maine

Decided May 28, 1892

Supreme Judicial Court of Maine · decided 1892-05-28

On motion. This was an action tried at the September term of the Superior Court, for Kennebec county, 1890, and a verdict of four hundred and fifty dollars was given the plaintiff for alleged malpractice of the defendant, a physician, in a case of obstetrics.

Good law ✅— No negative treatment on recordhow we know

Decided 1892-05-28

How this case has been cited

Cited by 6 later decisions — most recently October 1948

6 state decisions

20189219001910192019301940decided

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.

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Haskell, J.

¶1No suggestion of error or misdirection on the part of the presiding justice is made, but the case is presented upon a report of the evidence; so the only consideration is whether the verdict is supported by the weight of evidence, and *498that depends upon what testimony was believed by the jury, and whether they were justified in believing it.

¶2It is a common learning that the credit to be given witnesses is a matter peculiarly suited for a jury to decide. They see them upon the stand, note their appearance and observe many indications of truth or falsehood, accurate memory or indistinct and unreliable impressions, helps wholly wanting in the perusal of cold type.

¶3It is not disputed that the plaintiff, at some time, suffered, at child-birth, a severe rupture of the perineum ; but it is denied that it occurred while she was under the professional care of the defendant. However that may be, he either failed to discover the lesion while she was under his care during her sickness at and for some weeks after the birth of her last child, or discovering it, concealed it from her.

¶4If the plaintiff’s story be true, she repeatedly complained to the defendant of local suffering, and, after repeated examinations, he assured her that she was "all right.” The last examination was some four weeks after the birth of the child.

¶5Although it cannot be surely asserted that the plaintiff’s rupture was received at the birth of her last child, yet much of the evidence sustains that view, and it cannot be considered that the jury erred in finding that fact to have been proved.

¶6If the defendant knew of the rupture and concealed it from the plaintiff, neither taking measures for its repair or relief himself, nor giving an opportunity for other professional skill to be employed, little can be said in his excuse. But, if the defendant neither discovered the lesion, nor had any knowledge of it, a different question arises. Was he professionally negligent in his examinations ? He was a physician of seven years’ practice, a graduate of Boston University, and must have possessed that ordinary skill and learning required in such cases. His failure then to discover, after repeated examinations, the serious injury from which the plaintiff was suffering, must be held to be actionable negligence. Reasonable attention from a physician of ordinary intelligence would have discovered so palpable an injury.

¶7Other complications may have caused or increased much of *499the plaintiff’s suffering. Damages in that behalf are not chargeable to the defendant’s negligence ; but the verdict is moderate and cannot be considered excessive compensation for the suffering caused by the defendant’s failure to exercise that degree of care and skill required from one assuming to practice the-healing art.

¶8Motion overruled.

Peters, C. J., Virgin, Li buey and Foster, JJ., concurred...
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