James B. Latta, Appellant, v. Hilbert S. Sabin, Appellee, 329 F.2d 897 (D.C. Cir. 1964)

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US Court of Appeals for the District of Columbia Circuit - 329 F.2d 897 (D.C. Cir. 1964) Argued January 8, 1964
Decided February 20, 1964

Mr. Earl H. Davis, Washington, D. C., with whom Mr. Donald S. Caruthers, Washington, D. C., was on the brief, for appellant.

Mr. J. Joseph Barse, Washington, D. C., with whom Messrs. H. Mason Welch and J. Harry Welch, Washington, D. C., were on the brief, for appellee. Mr. James A. Welch, Washington, D. C., also entered an appearance for appellee.

Before DANAHER, BASTIAN and McGOWAN, Circuit Judges.

DANAHER, Circuit Judge.

The District Judge directed a verdict in favor of the appellee on the issue of negligence in a malpractice action. The appellant did not sustain his burden of proving that the surgeon had failed to exercise that degree of care and skill required by the standard of practice which the appellee was bound to afford to the appellant as his patient.1  The appellant's claims as to breach of warranty and unauthorized operation were submitted to the jury pursuant to adequate instructions, adapted to the issues.

The jury returned a verdict in favor of the appellant awarding damages equal to the amount of the surgeon's charge for his services. The award is now attacked as grossly inadequate.

The jury might have decided that except for a comparatively minor phase of the surgery, the special damages claimed by appellant were actually attributable to a later operation by other surgeons. The jury might also have concluded that no credence could be placed in the appellant's claim that the doctor had warranted a particular result. In any event, no special interrogatories had been submitted to the jury, and its general verdict is not without support in the record. The trial judge denied the appellant's motion for a new trial. Our review of the record does not disclose such abuse of discretion as to require reversal.2 

We have examined other contentions of the appellant in respect of certain rulings on evidence as to which we find no error.

The judgment of the District Court is



Rodgers v. Lawson, 83 U.S.App.D.C. 281, 170 F.2d 157 (1948); and see Brown v. Keaveny, 117 U.S.App.D.C. ___, 326 F.2d 660 (rehearing en banc denied)


Hulett v. Brinson, 97 U.S.App.D.C. 139, 140, 229 F.2d 22, 23, cert. denied, 350 U.S. 1014, 76 S. Ct. 659, 100 L. Ed. 874 (1956); cf. Muldrow v. Daly, 117 U.S. App.D.C. ___, ___ F.2d ___ (1964); Association of Western Railways v. Riss & Company, 112 U.S.App.D.C. 49, 52, 299 F.2d 133, 136, cert. denied, 370 U.S. 916, 82 S. Ct. 1555, 8 L. Ed. 2d 498 (1962)