McGuire v. Baird

CURTIS, J.

This is an appeal by the plaintiff from a judgment in favor of defendant based upon an order granting a nonsuit. The action was brought against a physician, the defendant, for damages alleged to have been sustained by plaintiff as a result of the defendant’s negligence in treating an infected thumb of plaintiff’s left hand.

During the progress of the trial, the plaintiff propounded to Dr. Arthur Stevenson, a physician practicing in Torrance near Redondo in the county of Los Angeles, a lengthy and involved hypothetical question. Some idea of its length may be gained by the statement that it took counsel more than half a day to state the question. The defendant made no objection to the witness answering the question on

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the ground of his lack of qualification, but insisted that the court direct the witness to answer the question “yes” or “no”. The court so directed the witness, and he answered the question in the affirmative. It appears from the subsequent testimony of this witness that he understood that if he answered the question in the affirmative he was approving all the defendant had done in the treatment of plaintiff’s thumb, which he could not honestly do, but that if he answered the question in the negative he was condemning the whole treatment administered by defendant to the infected thumb of plaintiff, which he felt he could not conscientiously do. In this dilemma he answered the question in the affirmative, thereby approving the treatment administered to the plaintiff’s thumb by the defendant. It is not necessary to here restate the hypothetical question asked of Dr. Stevenson nor the extended colloquy between the court and counsel immediately following the asking of the question. On appeal the District Court of Appeal reversed the judgment, and held that it was error to require the witness to answer the question by an unqualified affirmative or negative answer. It further held that the witness was qualified to give expert testimony as to whether or not the defendant’s treatment of plaintiff’s infected thumb was consistent with what other physicians in said locality in the exercise of reasonable care might do under similar circumstances. Defendant petitioned this court for a hearing after the rendition of the decision by the District Court of Appeal reversing said judgment. In his petition he advanced no argument in support of the trial court’s ruling as to the nature of the answers to be given to said hypothetical question, and practically conceded the correctness of the appellate court’s decision in holding that the trial court erred in requiring an unqualified affirmative or negative answer to the hypothetical question propounded by plaintiff to Dr. Stevenson, but insisted that the court’s conclusions as to the qualifications of Dr. Stevenson as an" expert witness be given further consideration by this court. It was for the latter purpose that we ordered a transfer of this cause for decision by this court. We will omit any further discussion of the ruling of the trial court requiring an unqualified affirmative or negative answer to the hypothetical question propounded to Dr. Stevenson for the reason that we are in accord with the contention of the plaintiff that said ruling was