Schanil v. Branton
| Citation | 232 N.W. 708,181 Minn. 381 |
| Decision Date | 24 October 1930 |
| Docket Number | 27,832 |
| Parties | JOSEPH G. SCHANIL v. B. J. BRANTON AND ANOTHER |
| Court | Supreme Court of Minnesota (US) |
Defendants appealed from an order of the district court for Kandiyohi county, Baker, J. denying their alternative motion for judgment or a new trial. Affirmed.
In malpractice case statute runs from end of treatment.
1. The two-year statute of limitations in a malpractice case, G.S 1923, § 9193, as amended, 2 Mason, 1927, id. does not commence to run until the treatment ends, following former decisions.
Date pleading was amended not date action was begun.
2. There was no error in permitting an amendment alleging that both defendants were employed to render medical services and that they were copartners; nor is the date of such amendment taken as the date of the commencement of the action in determining the bar of the statute of limitations.
Evidence of defendants' negligence.
3. There was evidence of negligence of the defendants resulting in injury to the plaintiff.
Damages recoverable are those caused by physician's negligence.
4. The damages recoverable in an action for malpractice are such as are caused by the negligence of the attending physician and cannot include damages arising from the original injury treated.
Instructions not erroneous.
5. The instructions on the whole cannot be held erroneous and prejudicial as telling the jury that the plaintiff could recover the damages sustained by the original injury as well.
Verdict not excessive.
6. The damages are not excessive.
George W. Peterson, for appellants.
Edward Lindquist and L. J. Lauerman, for respondent.
An action to recover for malpractice. There was a verdict for the plaintiff, and defendants appeal from the order denying their alternative motion for judgment or a new trial.
1. The plaintiff was injured on October 3, 1926, and on that day was taken to the defendants' hospital for treatment. He was discharged from the hospital on November 19, 1926. There was then a cast upon his leg. He returned for examination in January, 1927, and again in February. The action was commenced on November 15, 1928.
The defendants claim that the two-year statute of limitations, G.S. 1923, § 9193, as amended, 2 Mason, 1927, id. limiting actions for malpractice to two years, is a bar to this action. The effect of the statute was determined adversely to the defendants' contention in Schmitt v. Esser, 178 Minn. 82, 226 N.W. 196; and Bush v. Cress, 178 Minn. 482, 227 N.W. 432, where we held that it did not commence to run until the treatment ended. The action was brought well within the time. Further discussion is unnecessary. It may be noted that the statute is not pleaded.
2. There was no error in allowing an amendment to the effect that the defendants were copartners. A joint employment was alleged in the original complaint and was admitted. Before two pages of testimony were taken, it was proved by one of the defendants that he and his brother, the other defendant, were associated in the practice of medicine and operated the Willmar Hospital, a corporation, and were copartners in the practice of medicine and the operation of the hospital. There was no suggestion that a partnership liability was not involved, and we cannot think that the amendment alleging that the two defendants were copartners was erroneous, nor that the holding of Whittaker v. Collins, 34 Minn. 299, 25 N.W. 632, 57 Am. R. 55, is of helpful or controlling application; nor did the amendment introduce a cause of action, so that the date of the amendment, March 22, 1929, would be taken as the determining date of the commencement of the action in finding whether the statute was a bar. 4 Dunnell, Minn. Dig. (2 ed.) § 5664.
3. The plaintiff, a farmer, was kicked in his right leg by a horse on October 3, 1926. The injury resulted in a comminuted fracture below the knee extending from two inches below the kneecap four or five inches. The tibia and fibula were both broken, and the edges were extremely ragged. The fracture was a bad one and one difficult to treat.
The plaintiff was taken to the hospital operated by the defendants at Willmar for treatment. The defendants used a so-called Thomas splint. It is unnecessary to describe the method of its use in detail. The evidence indicates that it is in general use, and no negligence can be claimed because it rather than a cast was used in treating the injury of the plaintiff. It is claimed on his behalf that insufficient traction was applied and that the foot in the hood of the splint was held so loosely that it rotated; and that as a result there is a reversion of the right foot so that it interferes with the left in walking, the great toe of the right foot catching the heel of the left. Negligence could not be found in using a Thomas splint instead of a cast. There is evidence however from which a jury might find negligence in treating the leg resulting in the deformity. Two physicians testifying for the plaintiff gave opinion evidence of improper treatment. The weighing of their testimony was for the jury. The two defendants and several physicians testifying for them indicate proper treatment throughout. The plaintiff's injury was a serious one. That there was not a perfect recovery is not surprising. The evidence however is such as to sustain a finding of the jury that there was negligence resulting in damage. It was a fact case.
4. The measure of the plaintiff's damages is the difference between the condition at the close of the treatment...
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