Baker v. Langan

• Decision Date: 19 February 1914
• Parties: CLYDE BAKER, Appellant, v. JOSEPH C. LANGAN, Appellee
• Court: Iowa Supreme Court

145 N.W. 513

165 Iowa 346

CLYDE BAKER, Appellant, v. JOSEPH C. LANGAN, Appellee

Supreme Court of Iowa, Des Moines

February 19, 1914

Appeal from Clinton District Court.--HON. F. D. LETTS, Judge.

ACTION for malpractice. Defendant admitted he was a physician and surgeon, and that he treated plaintiff, but denied all allegations of negligence, and pleaded the statute of limitations. The case was tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals.--Reversed and Remanded.

Reversed and remanded.

Ernest Struve and A. W. Walliker, for appellant.

Wolfe & Wolfe, R. C. Langan, and W. J. Keefe (M. J. Wade, of Iowa City, of counsel), for appellee.

DEEMER J. LADD, C. J., and GAYNOR and WITHROW, JJ., concurring.

OPINION

DEEMER, J.

As a result of an accident, plaintiff received a simple fracture of both bones of his left leg, about three inches above the ankle joint. Defendant is a physician and surgeon, and was called upon to reduce and treat the fracture, and arrived at the hospital where plaintiff was taken immediately after receiving his injuries shortly after plaintiff arrived there.

Plaintiff was in the employ of the Clinton Street Railway Company, and defendant was the surgeon of the company.

The grounds of negligence charged were:

That the said defendant carelessly and negligently failed to reduce said fracture, and to bring said fractured bones together, and failed to so bind and fasten said bones that if brought together so as to heal, that they would remain in that position, and carelessly and negligently failed to watch and examine said bones to see if they were in a proper position, and were properly uniting and healing, and carelessly and negligently removed the splints from said limb before the bone had proper time to knit and heal together, and handled said limb in such a careless and negligent manner at this time, which was about three days after the bone had been set, disuniting said limb, if it had already knit, and carelessly and negligently failed to give the plaintiff proper instructions for the use and care of said fractured leg, and carelessly and negligently discharged this plaintiff from his care when said bones had in fact never been properly set and brought together, and while said bones should still have been caused to unite and knit together by proper treatment, and so discharged said plaintiff, without giving him any warning or notice of the true condition of his leg, which condition was well known to said defendant at the time he discharged said plaintiff, or could have been known to said defendant had he used proper care and skill to ascertain the condition of said limb before he discharged said plaintiff.

The answer was in effect a general denial and a plea of the statute of limitations.

On the issues joined the case came on for trial at the September, 1912, term of court, and plaintiff filed a motion, based upon the absence of a witness, for a continuance of the case. This motion was overruled, and this ruling presents the first question raised by the record.

Such rulings are largely discretionary with the trial court, and we do not, as a rule, interfere in the absence of a showing of abuse of that discretion, or that an injustice has been done by the order. Nothing of the kind is shown by this record.

Plaintiff did not show sufficient diligence in obtaining the witness' testimony, and the statement as to what the witness would testify to, indicates that every material fact might have been established by other witnesses who were just as competent as the absent one.

II. The testimony for plaintiff regarding the treatment of the fracture was in substance as follows:

Dr Langan was not at the hospital when I reached there. I think it was ten minutes after I got there before he got there. He had Dr. Keefe with him. Dr. Miller was there at that time. He was there when I reached there. I sent for him to come to the house, not the hospital; but he came to the hospital. Dr. Miller assisted in reducing the fracture. They undressed me; they took my shoes off, then took my clothes off, and then put a shirt on me. Then they tried to put the leg in shape, and pulled it out to straighten it up, and made the place where I was injured so I could see. There were no bones protruding through the skin. I was not put under an anaesthetic. I knew what was being done the little while the doctors were working there. I was given a drink of whisky; it was handed to me by a Sister. In order to reduce the fracture the physicians in attendance took hold of the foot, two of them if I remember, and pulled it out so as to put the break in shape; that is, put the leg back in shape. They went and took hold of it and tried to; all three had hold of me. Q. What they did was for the purpose of adjusting the leg in that position? A. Yes, sir; they put me in a fracture box. The fracture box looked to me as if it had hinges on it. It laid flat out, and they had adhesive plasters along the sides, and they fastened a weight on my leg and they packed it in cotton batting, or something of that sort, and they pulled up this weight, and hooked it so as to hold the leg straight. I think the box had hinges on the sides. They were two movable pieces, one on each side of the bottom. The hinges were for the purpose of raising the sides up, or to lower them in case it might become necessary. After that was completed, I was covered up, and I was lying there for awhile. Then they put water bottles on my sides to get me warmed up. At that particular time they bound my leg to this box, and I was packed inside of it. There were no bands put on my leg at this time that I know of. There were adhesive plasters put on at that first visit. I couldn't say what kind of a weight it was, whether iron or a sandbag, that was put on it; it was down at the foot of the bed. I should judge the operation lasted about thirty minutes. Dr. Miller helped to put me in position. He seemed to take as active a part as the rest of them. I should judge the operation last about thirty minutes. I believe Dr. Langan came there again that night--I couldn't say positively, but I think he was there the same evening, about 9 o'clock, or half past eight. He came to see if I was in position all right; to see whether I was all right. Dr. Langan's instructions to me were to lay still. I did as he told me. I did that as long as I remained at the hospital. Q. What were his instructions as to the use of your leg all the time you were at the hospital? A. To lay flat, and to lay still. That was all he said about it. He did not give me any new instructions in reference to the care and use of my leg after I was taken home, only occasionally he said to be careful with it, and I was. Q. Now, what was done by Dr. Langan and Dr. Keefe at this particular time that you have spoken of? Were X-rays used by Dr. Langan and Dr. Keefe for the purpose of ascertaining whether or not these bones were broken, and if more than one, and if the leg had been properly adjusted? A. No, sir. Q. When did Dr. Langan make the next visit? A. Well, every day he come. Yes, sir; he come every day in the forenoon about 9 o'clock or half past 9. His next visit was on Saturday. He looked me over then to see the shape I was in, I suppose. I don't just remember what he asked me or anything about it; but it didn't amount to much. He did not disturb the leg in any way, just looked to see if my leg was in as good shape as he left it. I was in the hospital three weeks, I think. Then I was taken home. I was confined to my home about four weeks after being taken there. I was removed from the hospital on the 27th day of March. Q. And you were in the house how long? A. Well, I got out on the porch about the 27th of March, I believe, on my crutches. Q. Well, what did the doctor tell you about when you could go out? A. Well, why, he didn't tell me. But after that I could walk back and forth to the summer kitchen; I had permission to walk out to the summer kitchen, and I used a chair in the closet. Yes; afterwards I had permission to do that. The first time I left the house to come downtown, that was in a buggy, that was on the 11th day of April; at that time I went downtown in a buggy. I began using crutches about the 27th or 28th day of March. That was just merely to walk back and forth to the summer kitchen. Q. What did the doctor tell you about the use of your crutches? A. He said, 'If you have to go to the closet,' he said I could use them; yes, sir, and I did so. I think it was about the 27th of March when I first began using crutches. At that time I did not rest my foot on the ground as I went along with my crutches, nor on the floor. Q. Well, what did the doctor tell you in reference to the use of your leg after he permitted you to use the crutches? A. He said to hold my foot down, but not touch the floor or ground. He told me to be careful not to bump it, and I was always careful not to bump it. He said my leg was doing all right. He first told me this at the time he changed the plaster cast. That was about six weeks after the leg was broken. He has never told me any different since. He told me it never would be as it was before, but that it would be stronger. Q. What did the doctor tell you about that, if anything? A. About its being good? Q. Yes. A. Well, he said that the bone was knit; that it was shortened up some, he said, so it might not be as it was before, but would be strong after awhile so I could use it. The next visit Dr. Langan made to the hospital was Friday, Saturday, and Sunday, and on Monday. He had an assistant on Monday. Dr. Keefe was his assistant at that time. They took my leg out of the fracture box and examined it. In taking it out, they lifted it up. Dr. Langan...