Vassey v. Burch
Vassey v. Burch
Opinion of the Court
Crucial to plaintiffs case was expert medical testimony that the defendant’s failure to diagnose and treat the appendicitis caused the troublesome and expensive complications that followed. If the abdominal infection was already underway when the plaintiff consulted defendant — or if it resulted from a laceration of the bowel that occurred during surgery, a possibility raised by the hospital records — defendant would not be liable. Dr. Morgan, who assisted the surgeon that performed the appendectomy, observed some cloudy-looking fluid within the plaintiffs abdomen when it was opened up; and he testified that the fluid may have leaked from the infected and necrotic appendix. But he was not permitted to express the opinion before the jury that the infection would not have developed if the appendix had been removed the day before. Dr. Morgan’s proffered answer to the hypothetical question was as follows:
No, the problems would not have arisen if it had been removed at the time. Again, this comes in this rumor I’m hearing and books.
The question was partially based on the plaintiffs hospital records, salient portions of which had been read into evidence, and the court apparently construed the doctor’s answer, as defendant contends, as indicating that he did not deem the record entries referred to as being reliable, and therefore really had no opinion about the matter. But since there is nothing in the record to suggest that Dr. Morgan had any basis for disputing the validity of any of the records, or that he even did so, it seems more likely to us that the doctor was merely being apologetic to a fellow practi
The trial court also erred in striking plaintiffs testimony that “[n]o blood count had been done up to that point.” The basis for this ruling, apparently, was that it had not been shown that plaintiff was familiar with medical technology and knew what a blood count was. In our view, it is not necessary for a lay witness to demonstrate any special knowledge of medicine before he can be permitted to testify that a blood count was done on him. If the plaintiff claimed to know that a test of his blood was not done by the defendant, he should have been permitted to testify accordingly.
New trial.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.