Page:The Green Bag (1889–1914), Volume 17.pdf/413

 THE GREEN BAG by the odor and noise. The court, however, observes that where the question of a private nuisance is raised, the result produced by it upon persons of ordinary health and sensitiveness rather than upon those afflicted with disease or abnor mal physical conditions is to be taken as the criterion. "In lawful use of property," says the court, "how far an annoyance may be caused to other persons without becoming a nuisance, becomes a question of degree. For what may amount to a serious injury to health or enjoy ment of property in one locality may, under different circumstances, be deemed proper and unobjectionable." In view of these principles and under evidence showing that the hen-houses were maintained in a cleanly condition and cared for in such a manner as not to affect injuriously the health of any normal person living in the neighborhood, the court concludes that although the odor arising and the noise produced might have been unpleasant, yet as it did not appear to have been uncomfortable or unbearable the maintenance of the houses could not be regarded as a nuisance. PHYSICIANS AND SURGEONS. (INCORRECT DIAGNOSIS — EXPERT WITNESSES — COM PETENCY) SUPREME COURT OF MISSOURI. A case of much interest, in which the chief question at issue is elaborately treated and nearly all the relevant authorities are cited, is that of Grainger v. Still, 85 S. W. Rep. 1114. The action was against an osteopathic physician and surgeon for malpractice, and while several questions are involved, the chief interest centers around defendant's contention that physicians of schools of medicine other than that to which he belonged were not competent to testify as experts as to the propriety of his diagnosis. Plaintiff was a child, who it appears was, as a matter of fact, suffering from incipient hip disease, the result of an inflamed and sometimes tuber culous condition of the hip joint. Defendant diagnosed the difficulty as a partial dislocation and treated it as such, using the "manipulations" characteristic of the osteopathic school and after wards attempting by a somewhat violent operation to put the hip in position. The operation resulted in accomplishing precisely what defendant sought to remedy and dislocated the hip. Various allo pathic physicians were called as experts to testify as to the propriety of the treatment as well as to the correctness of the diagnosis, and it was objected that these witnesses were incompetent because they belonged to a different school of medicine from that to which defendant belonged

and that his treatment could only be judged by members of his own school. It was, however, shown that osteopaths used the same text-books as medical schools generally, and that hip disease is ascribed to the same cause and diagnosed in the same way by the osteopaths and physicians of every school of medicine. Many cases deal ing with somewhat similar questions are cited and analyzed, including those of Force v. Gregory, 63 Conn. 167, 27 Atl. 1116, 22 L. R. A. 343, 36 Am. St. Rep. 371; Bowman v. Woods, i Greene (Iowa) 441; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Hesse v. Knipple, i Mich. N. P. 109; Martin v. Courtney, 75 Minn. 255, 77 N. W. 813; Corsi v. Maretsek, 4 E. D. Smith (N. Y.) i; Wil liams v. Poppleton, 3 Or. 139; and Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228, i L. R. A. 719, 7 Am. St. Rep. 900. Upon the question of the differences between the modes of treat ment of the different schools of medicine and their effect upon the question under consideration, the court says: "The disease is the same no matter which school of medicine the attending physician belongs to. They may differ as to the proper treatment of the disease after its presence is ascertained, but there is no difference as to their diagnosis. This being so, there is no sound reason why a physician of any school should not be a competent witness to testify whether a patient has hip disease, dislocation, or as to any diagnosis of any disease." Another question which receives some consideration, al though apparently regarded of secondary im portance, arises on defendant's argument that as plaintiff was in fact suffering from hip disease, which, without the improper treatment to which she was subjected by defendant, would have resulted in the same shortening of the limb and curvature of the spine which was produced by the improper treatment, there was no damage shown. The court answers this contention briefly concluding its argument by suggesting that it could as well be argued that where a patient is improperly treated for a fracture of the limb and gangrene sets in and the patient dies, the physician would not be liable if the patient had consumption and would have died any way. "A patient however afflicted is entitled to let nature take its course and not have even natural con sequences precipitated by the improper treatment of the physician or by an improper diagnosis re sulting in the application of improper treatment." POWER OF LEGISLATURE. (EXPENDITURE OF PUBLIC MONEY) SUPREME COURT OP PENNSYLVANIA On March 25, 1897, the Legislature of the