Benzmiller v. Swanson

• Decision Date: 02 October 1962
• Docket Number: No. 7977,7977
• Citation: 117 N.W.2d 281
• Parties: George T. BENZMILLER, Plaintiff, Appellant, and Cross-Respondent, v. Joel C. SWANSON, M.D., Defendant, Respondent, and Cross-Appellant.
• Court: North Dakota Supreme Court

Page 281

117 N.W.2d 281

George T. BENZMILLER, Plaintiff, Appellant, and Cross-Respondent, v. Joel C. SWANSON, M.D., Defendant, Respondent, and Cross-Appellant.

No. 7977.

Supreme Court of North Dakota.

Oct. 2, 1962.

Syllabus by the Court.

1. Motion for new trial on ground that the evidence does not justify the verdict is addressed to the sound, judicial discretion of the trial court, and the order granting such motion will not be reversed on appeal unless the record discloses a clear abuse of discretion.

2. Where the trial court grants a new trial on the ground that there is little or no evidence showing that what the defendant did or did not do caused the injury suffered by the plaintiff, and the trial court is in error in his conclusion that there is insufficient evidence from which the jury could draw a reasonable inference that the doctor's acts or omissions proximately caused plaintiff's injury, and where such verdict is in fact supported by a preponderance of the evidence, the court's order granting a new trial must be reversed.

3. Where a verdict is supported by a great preponderance of the evidence, it is an abuse of discretion to grant a new trial on the ground of insufficiency of the evidence.

4. A case once tried and concluded by a verdict should not be reopened and retried unless a careful examination of the record discloses that justice so requires.

5. In the absence of a special agreement, a physician or surgeon does not guarantee or insure a good result, or that he will effect a cure. He does have an implied obligation arising from his employment, however, to see that no injury shall result from any want of care or skill on his part.

6. Where an orthopedic surgeon failed to make any examination of his patient's injury, except to glance at it, until he performed surgery on the second day after the accident, and left all matters such as cleansing and temporarily caring for the wound to an intern, although he had been informed by such intern that the patient had suffered a compound comminuted fracture, and where such surgeon failed to administer or order the administering of antibiotic drugs to avoid or check infection, and where he failed to treat a compound comminuted fracture which had occurred in a farming accident as a surgical emergency, and where he failed to treat such compound fracture as potentially contaminated and infected, and where, as a result, the patient's wound became infected and tissue and muscle around the injured area became contaminated, dead, and devitalized, causing loss of much tissue and muscle which, in turn, resulted in exposure of the bone which thereafter became infected, necessitating the amputation of patient's arm, and where there is ample evidence that such failure constituted negligence and proximately caused injury and loss of the patient's arm, a verdict of the jury for the patient against the surgeon was justified.

7. 'Preponderance of the evidence' does not mean that the party who has the burden of proof must have a greater number of witnesses, or that such party produce a greater amount of testimony. A 'preponderance of the evidence' merely means such evidence as produces a conviction of truth.

8. While a trial court should scrupulously avoid any statement or suggestion to the jury, after it has retired to deliberate on a verdict, which would induce the jurors arbitrarily or coerce them into returning a verdict at the expense of any juror's honest convictions, merely urging the jury to continue deliberation, and pointing out that a retrial of the case would involve expense for all parties, would not coerce any juror into arriving at a verdict contrary to his honest convictions.

9. Merely allowing a jury to return into open court at its own request to inform the court that it is unable to arrive at a verdict, without notice to the parties or their counsel, does not violate provisions of Section 28-14-19 of the North Dakota Century Code. That section requires such notice where there is disagreement among the jurors as to any part of the testimony or where the jurors desire to be informed on any point of law in the case.

10. A showing by the defendant that the jury, in its deliberations, discussed the possibility of liability insurance, is not ground for a new trial in the absence of a showing that such discussion, if it did occur, was prejudicial to the defendant.

11. Verdict of $25,000 for loss of the left forearm of a fifty-three-year-old farmer is not so excessive as to indicate passion and prejudice on the part of the jury.

Frederick E. Saefke, Jr., Bismarck, for plaintiff, appellant, and cross-respondent.

Nilles, Oehlert & Nilles, Fargo, for defendant, respondent, and cross-appellant.

STRUTZ, Judge.

This is an appeal from an order granting a new trial. The complaint of the plaintiff against the defendant, an orthopedic physician and surgeon, charges the defendant with malpractice in the setting and treatment of a broken arm.

The plaintiff was involved in a farming accident on Saturday, July 12, 1958, when he fell from a hayrack while loading baled alfalfa. The field where the accident occurred had been fertilized with manure. The plaintiff was immediately taken to a local doctor in a nearby town but, on examination of the plaintiff's injury, the local doctor determined that the plaintiff had suffered a compound comminuted fracture; that the injury was potentially very dangerous and constituted a medical emergency which should not be treated by a general practitioner. The plaintiff thereupon was advised to go immediately to Fargo for treatment.

On arriving at the St. John's Hospital emergency room, X-rays were taken of the plaintiff's injury and these disclosed to the intern on duty that the plaintiff had suffered a compound comminuted fracture. The plaintiff requested that the defendant be called, and he was called by the intern on duty. The defendant thereupon directed the intern to admit the plaintiff to the hospital and stated that he would see the patient in the morning. The intern also informed the defendant that he believed the plaintiff had suffered a compound comminuted fracture, and, according to the testimony of the intern, that the bone could be seen through the opening of the skin. The defendant did not order the administering of antibiotic drugs to avoid or control infection, but did order the cleansing of the plaintiff's arm and wound and the administering of a pain-killing drug and a tetanus antitoxin. Plaintiff was not prepared for surgery, although the intern testified that, in his opinion, the injury constituted a surgical emergency.

The defendant made no attempt to see the plaintiff that evening. Later, on the same day, he was contacted by a registered nurse employed at the hospital, giving defendant further information regarding the plaintiff's injury. This nurse was the plaintiff's sister-in-law. The defendant, however, made no attempt to see the plaintiff until approximately five o'clock on the following day, after again having been called by the hospital. His examination of the plaintiff's injury on this occasion was very superficial. Later that evening, plaintiff's arm was cleansed, shaved, and prepared for surgery, which the defendant had announced he would perform the following morning. This preparation for surgery was made by persons other than the defendant, and presumably at the defendant's direction.

The operation was performed on the following day, the 14th of July. After the operation, a cast was applied. Sometime thereafter, the arm began to bother the plaintiff and the defendant ordered a 'window' cut in the cast for purposes of observing the injury. By July 17, an infection had set in and some of the stitches were removed from the infected parts of the wound. On the visit of July 17, and on subsequent visits, the defendant removed tissue from the wound. On July 21, one week after the operation and nine days after the plaintiff had suffered the injury, the defendant removed more dead tissue and then informed the plaintiff that he was quitting the case. He gave as a reason for his action the 'interference' of the plaintiff's sister-in-law. Defendant thereupon presented to the plaintiff a release which he requested the plaintiff to sign, which the plaintiff did execute. The release purports to absolve the defendant of all responsibility for treatment of the gas gangrene which had developed in plaintiff's wound.

Prior to the giving of such release, when it became apparent that the plaintiff had infection, other medical doctors were called into the case at the request of the plaintiff and, on the defendant's withdrawing from the case, a Doctor Murray examined the plaintiff and found the arm badly swollen, the skin brown and discolored, and skin stitches removed. Doctor Murray instituted a vigorous debridement of the wound, including the removal of dead, devitalized, and necrotic tissue, and skin, muscle, and bone fragments. At that time the plate which had been inserted by the defendant at the time of the operation fell out.

By August 9, the plaintiff's condition was such that it was felt that he could be discharged from the hospital to await developments. The gas gangrene had been controlled, but much of the tissue and muscle on plaintiff's arm had been removed. During the time between such discharge and the plaintiff's return to the hospital, on September 6, he was treated at a clinic. By the time of his return to the hospital, there had been further tissue loss and much of the muscle and many of the nerves of the forearm had been removed, and the evidence shows that plaintiff's arm had become useless. On September 6, when the plaintiff was readmitted to the hospital, his arm was amputated.

The record shows that amputation was necessary because of osteomyelitis, or bone infection, which the plaintiff's witnesses testified was due to loss of tissue and muscle damaged by infection, which loss...