Adams v. Junger

• Decision Date: 19 February 1913
• Citation: 139 N.W. 1096,158 Iowa 449
• Parties: ADAMS v. JUNGER.
• Court: Iowa Supreme Court

158 Iowa 449

139 N.W. 1096

ADAMS

v.JUNGER.

Supreme Court of Iowa.

Feb. 19, 1913.

Appeal from District Court, Monona County; David Mould, Judge.

Action for malpractice. Defense a general denial. Verdict for plaintiff in the sum of $1,000 upon which judgment was rendered, and defendant appeals. Reversed.Wade, Dutcher & Davis, of Iowa City, and C. E. Cooper, of Onawa, for appellant.

J. A. Pritchard and J. W. Anderson, both of Onawa, for appellee.

DEEMER, J.

The specific allegations of negligence were: “That the fracture of plaintiff, as set forth in plaintiff's petition, was such a fracture as the ordinarily skillful physician and surgeon could readily and would have readily reduced. That the defendant failed to reduce the same, or, if said fracture was reduced by the defendant, then the defendant failed to properly care for and keep said fracture in place by using proper appliances and care necessary to keep said fracture reduced. That the defendant was careless and negligent and unskillful in failing to properly examine and discover the condition of said wound and fracture, and allowed the same to remain in a fractured condition, with the bone extending into the flesh, when the defendant might, by using ordinary care and skill, have discovered the condition of plaintiff and remedied the same. That the defendant failed to properly examine said wound, or to discover the condition of the fracture, although warned by the plaintiff as to the condition of the same, in so far as she knew. That the defendant was negligent, careless, and unskillful, if, as a matter of fact, he reduced the fracture, in not so adjusting his bindings and other appliances in such a manner as to hold the fracture in place, and in not examining the plaintiff's wound and fracture and discovering its condition, and then using the proper remedies.”

In submitting the case to the jury, the trial court thus stated the issues plaintiff claims: “That the defendant was negligent in the treatment of plaintiff in this: That he failed to reduce the fracture, or, if said fracture was reduced, that he failed to properly care for and keep said fracture in place by using proper appliances and care; that he was careless and negligent in failing to properly examine and discover the condition of the fracture, and allowed the same to remain in a fractured condition, with the bone extending into the flesh, and the defendant, by using ordinary care and skill, might have discovered the condition of the fracture and remedied the same. That the defendant was further careless and negligent in not adjusting his bandages and other appliances in such manner as to hold the fracture in place, and in not examining plaintiff's wound and fracture. That the injuries suffered by the plaintiff, and herein complained of, were caused by the carelessness and negligence of the defendant, and not by reason of any carelessness or negligence of the plaintiff.”

After thus stating the issues tendered by the petition, the court charged as follows:

“Par. 4. Before the plaintiff can recover anything in this action, she must prove to you by a preponderance of the evidence: First. That the defendant was negligent in one or more of the particulars charged in the petition, as set forth in paragraph 1 of this charge. Second. That the negligence proven was the proximate cause of the injury of which plaintiff complains in her petition. Third. That she herself was free from negligence contributing to the injury complained of.”

“Par. 6. That plaintiff charges in her petition that the defendant failed to reduce her fracture, and failed to properly care for and keep said fracture in place by using proper appliances and care necessary to keep said fracture reduced. But you are instructed that the plaintiff has not introduced evidence sufficient to submit to the jury the question as to whether, in the original treatment of plaintiff, and in the use of the appliances which the evidence shows the defendant did use, there was any negligence on the part of the defendant; and this charge of negligence is withdrawn from your consideration, and you will not take the same into consideration in arriving at your verdict. And there is no evidence that the failure of plaintiff's fracture to unite, or the present condition of her limb and said fracture, are the result of any negligence or want of skill on defendant's part, and you cannot hold him responsible therefor.

Par. 7. The plaintiff charges that the defendant was negligent and unskillful in failing to properly examine and discover the condition of the fracture, and allowed the same to remain in a fractured condition, with the bone extending into the flesh, when he might, by using ordinary care and skill, have discovered the condition of plaintiff and remedied the same. And if you find from the evidence that plaintiff suffered a fracture of the femur, whereby the fractured parts were displaced, causing the limb to evert, and causing intense pain in the region of the fracture, and you further find that the defendant, in the exercise of the knowledge, care, and skill usually exercised by physicians and surgeons in similar localities in the treatment of like cases, should have discovered the displacement of the broken bones and adjusted the same, and failed to do so, then he would be liable in this action for any bodily pain and mental suffering caused by the failure to discover and adjust the displacement, and to which the plaintiff did not contribute by acts of carelessness or negligence on her part. But if plaintiff has failed to prove to you by a preponderance of the evidence that the pain and suffering of which she complains was caused by the displacement of the fractured parts, or if she failed to prove to you that the defendant, in the exercise of that degree of knowledge, skill, and care ordinarily exercised by physicians and surgeons in similar localities, should have discovered the displacement and adjusted the same, then the plaintiff cannot recover in this action, and your verdict should be for the defendant.

Par. 8. You are instructed that plaintiff can only recover, if at all, in this case for physical pain and mental suffering, if any, endured by plaintiff prior to the time Dr. Conn performed his operation, and only for such pain and suffering as is shown by the evidence to have been the proximate result of defendant's negligence and unskillfulness, if any, in failing to discover and adjust the displacement of the fractured parts. Plaintiff cannot recover damages for any pain or suffering resulting from the fracture and the proper treatment thereof; nor can she recover for pain and suffering resulting from rheumatism; nor can she recover in this case for loss of time or decreased ability to perform labor.”

[1][2][3] These instructions are complained of as being contradictory and conflicting, and as being fundamentally wrong on any theory of the case. While it is difficult to discover the theory which the court had in mind, it is apparent, we think, that the objections to these instructions are well founded. The court took away from the jury the question of defendant's treatment of the fracture, and specifically said that there was no evidence that the failure of the bones to unite, or the present condition of the limb or of the fracture, was due to any negligence or want of skill on the part of the defendant. But in the next instruction the question of his skill in diagnosing the injury and in allowing fractured part of the bones to remain in the flesh, producing bodily pain and mental suffering, was submitted. It is difficult to reconcile these instructions, save upon the theory that, while defendant's treatment was proper, he might at some time, by use of ordinary care and skill, have relieved plaintiff from some of her suffering due to a misplaced bone, although he could not have reduced the fracture or secured a union of the bones. These two theories are hardly consistent, unless it be as plaintiff's counsel contend in argument, that after he had concluded his treatments he did not properly instruct plaintiff as to the care of her limb, or did not properly examine it to see if any bones were then protruding into the flesh, producing pain which might have been alleviated in the use of proper care. This, however, was not the thought of the pleader in framing his petition, and no such specification of negligence is made. Aside from this, the eighth instruction, which we have quoted, clearly allows the jury to award plaintiff damages for all pain suffered by her prior to the time a second operation was performed, by a Dr. Conn, to relieve her condition. This involves the idea that defendant's diagnosis and treatment of the case from the beginning might be found to have been improper, although the court expressly said in the sixth instruction that defendant properly cared for and kept the fracture in place by using proper appliances and care in keeping the same reduced, and that there was no testimony showing or tending to show that in the original treatment, or in the use of appliances, there was any negligence whatever. If the court had in mind the thought that defendant did not, in discharging plaintiff...