Bigney v. Fisher

• Decision Date: 27 September 1904
• Citation: 59 A. 72,26 R.I. 402
• Parties: BIGNEY v. FISHER.
• Court: Rhode Island Supreme Court

59 A. 72

26 R.I. 402

BIGNEY

v. FISHER.

Supreme Court of Rhode Island.

Sept. 27, 1904.

Action by Earl H. Bigney against J. Leroy Fisher. Verdict for defendant. On petition for a new trial. Petition granted.

Argued before TILLINGHAST, DOUGLAS, and BLODGETT, JJ.

F. P. Owen, for plaintiff.

James T. Egan, for defendant.

TILLINGHAST, J. The verdict in this case cannot be sustained. Whether the defendant used proper skill and care in setting the broken bone in the plaintiff's leg and in his subsequent professional treatment of the case were necessarily questions to be determined by the testimony of experts in the science of medicine and surgery. Barker v. Lane, 23 R. I. 224, 49 Atl. 963. And the very strong preponderance of the testimony of the experts who were produced as witnesses in the case is to the effect that the treatment adopted by the defendant was both skillful and proper, and that the resuit was as favorable as could be expected in view of the nature and character of the injury. A slight shortening of the leg which was broken is practically all the permanent injury of which the plaintiff complains, and quite a number of very eminent and well-known surgeons in the state, amongst whom were Dr. John W. Mitchell, Dr. Robert F. Noyes, Dr. Frank E. Peckham, Dr. John W. Keefe, and Dr. G. Edward Buxton, were called as witnesses by the defendant, and testified to the effect that such a result is practically inevitable under the conditions which appeared in this case; that in oblique fractures of the thigh bone—which this was —a shortening of the leg is ordinarily, if not always, to be expected. It is true the plaintiff produced some testimony tending to show that the defendant did not at first fully comprehend the nature and locality of the injury, and also that the treatment adopted by him was not altogether of the best or most approved sort. And Dr. Jerome B. Greene, called by the plaintiff as an expert, testified that, if the fracture had been properly treated, he did not think there would have been any shortening of the leg; that he sometimes got shortening in adults, but never in children. Dr. Arthur H. Wood also testified to the effect that there was no occasion for any shortening of the leg, or, at any rate, for so much as was found to exist in this case. He also testified that when he examined the patient the defendant was treating him for an injury to the knee, and had not discovered the fracture of the thigh bone. The great weight of the testimony, however, is in favor of the defendant upon all the points involved in the case; and hence the verdict was clearly against the evidence.

"The implied contract of a physician or surgeon is not to cure—to restore a fractured limb to its natural perfectness" (McCandless v. McWha, 22 Pa. 261), but to treat the case with that degree of diligence and skill which are ordinarily possessed by the average of the members of the profession in good standing, in similar localities, regard being...