Dillishaw v. Bell

• Decision Date: 20 December 1920
• Docket Number: 10539.
• Citation: 105 S.E. 410,115 S.C. 258
• Parties: DILLISHAW ET UX. v. BELL.
• Court: South Carolina Supreme Court

105 S.E. 410

115 S.C. 258

DILLISHAW ET UX. v. BELL.

No. 10539.

Supreme Court of South Carolina

December 20, 1920

Appeal from Common Pleas Circuit Court of McCormick County; S.W. G Shipp and Geo. E. Prince, Judges.

Action by J. T. Dillishaw and wife against Dr. J. A. J. Bell. Judgment for plaintiffs, and defendant appeals. Reversed.

C. C Featherstone, of Greenwood, and C. K. Charles, of McCormick for appellant.

G. B Timmerman, of Lexington, and Joseph Murray, of McCormick, for respondents.

FRASER J.

This appeal was dismissed by Judge Prince. A motion was made in this court to reinstate the appeal, and was resisted on the ground of want of jurisdiction. This court has full jurisdiction to reinstate the appeal in its discretion, and its discretion grants the motion.

The respondent Mrs. Effie Dillishaw is the mother of several children, and on the 26th of October, 1917, arose to attend to the wants of one of them. She in some way fell to the floor and injured her knee. Dr. Bell, the appellant, was called to attend her. He came and made such examination as he could, but found that the knee was too painful to make a thorough examination, and, not having brought an anæsthetic with him, went away to get it. When he returned that same night, he brought with him another physician, Dr. Mattison, to assist him. When these two doctors had made an examination, they agreed that the injury was the result of a torn muscle, and not a broken kneecap or patella. The doctors bound up the knee with a bandage known as a "figure 8" bandage. The knee did not get well, and respondent called in Dr. Fuller. Dr. Fuller's diagnosis was a broken patella. Dr. Fuller called to his assistance Dr. Neel. Dr. Neel was doubtful. An X-ray picture was taken, and it confirmed the diagnosis of Dr. Fuller. Subsequently Drs. Fuller and Neel performed a surgical operation on the knee and cured it. Dr. Bell quit the case when Dr. Fuller was called. This action is brought against Dr. Bell for negligent treatment. The verdict was for plaintiff. The defendant moved for a nonsuit, and for a direction of verdict in his favor. Both motions were refused.

The defendant appealed upon several exceptions, but, in the view this court takes of the case, these two only need be considered. There are three specifications of negligence, to wit: Negligence in making the diagnosis, negligence in the treatment, and negligence in a premature discharge of the plaintiff as cured.

I. As to negligence in the diagnosis: The strongest point in the plaintiff's favor was the statement that there was an indentation on the knee that followed the break in the bone, and large enough to hold the finger. There was undisputed evidence, however, that a torn muscle would have produced the same depression. The evidence is all one way--that an injured knee presents difficulties of diagnosis that mislead the most skillful physicians. When Dr. Fuller was on the witness stand, he was asked:

"Q. Would the average practicing physician, who knows enough to practice, have had any difficulty in making a diagnosis? A. I do not know what the average man would be able to

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