Bonnet v. Foote

• Decision Date: 07 February 1910
• Citation: 47 Colo. 282,107 P. 252
• Parties: BONNET v. FOOTE.
• Court: Colorado Supreme Court

107 P. 252

47 Colo. 282

BONNET v. FOOTE.

Supreme Court of Colorado

February 7, 1910

Error to District Court, City and County of Denver; John I Mullins, Judge.

Action by Emma E. Foote against William M. Bonnet. Judgment for plaintiff, and defendant brings error. Affirmed.

George W. Taylor and H. L. Noble, for plaintiff in error.

GABBERT J.

Defendant in error commenced suit against plaintiff in error to recover damages for the alleged malpractice of the latter. In her complaint plaintiff alleged that while walking on Sixteenth street, in the city of Denver, she slipped and fell on the pavement, and injured her right hip; that she employed the defendant, a physician and surgeon, to treat the injury; that he examined her, and announced that she had only sustained a severe bruise, which time and keeping quiet would heal; that he called and treated her twice a day for about two weeks, and thereafter once a day for about one month, and after this period occasionally for about two months. She then alleges that the injury she received from her fall was a fracture of the neck of the right femur, with a displacement of the outer fragment, which eventually caused a shortening of the right limb from two to three inches. The negligence charged is (1) neglect and inattention of defendant in his examination of the plaintiff; (2) failing to set the bones in proper position and to keep them in place (3) failing to use proper appliances at the proper time. The trial on the issues made by the answer of the defendant to this complaint and the replication of plaintiff resulted in a verdict and judgment for plaintiff in the sum of $1,500. The defendant brings the case here for review on error.

The first question we shall consider is the sufficiency of the evidence to establish the negligence of the defendant as charged. The testimony is not voluminous, and, so far as material to that question, is substantially as follows Plaintiff fell upon the sidewalk in the evening. She was at once removed to her room, and requested that the defendant be called. He arrived within a few minutes, found that she was suffering severe pain, and told her he was afraid she had suffered a fracture, and advised her that he would not make an examination until morning. The next morning he called, and examined her hip by feeling it with his hands, and concluded that the injury was a severe bruise, and not a fracture. It further appears from the testimony that he contained to treat her for the periods as alleged in her complaint as for a bruise, and not a fracture; that he made frequent examinations of the injured limb, and measurements for the purpose of ascertaining whether or not it was shortening, but at no time regarded the injury as anything more than a severe bruise. Plaintiff was confined to her bed for about four weeks. At the end of that time she was able to sit up a short time each day, gradually increasing it. In a few weeks she was able to walk with crutches, and about four months after her injury was sufficiently recovered so that she was able to go to Santa Fé, where she remained for several months. She used crutches or a crutch and cane for about 18 months after her injury. After that period she used a cane only. She suffered more or less pain for something like two years, at the end of which time it passed away, but occasionally would return. It appears from the testimony that the injured limb was shortened, that it is not as strong as before the injury, and that plaintiff cannot use it with the same degree of facility she could before it was injured.

A physician and surgeon called on behalf of the plaintiff testified that about five years after her injury he made an examination of her right limb, and found from such examination, aided by an X-ray photograph of her right hip, that she had sustained a fracture of the neck of the femur of the right limb. He also stated that, in case of a fracture of the neck of the femur, it is often difficult to ascertain whether there is a fracture or not. He further stated that a severe bruise in the vicinity of the neck of the femur would produce practically the same pain as a fracture. He also detailed the method usually adopted by surgeons for the purpose of ascertaining whether or not when the hip is injured a fracture exists. It appears from the testimony that the defendant did not adopt this method or do anything more in the way of examining the injured limb than already stated. During the course of his examination the witness was asked: 'Q. Doctor, if a patient with an injured hip lie on the back and her foot turns over to one side, what is the indication? A. Might be a fracture; might be a dislocation. Q. It would be one or the other? A. One or the other. Q. The indication would be that it was either a dislocation or fracture? A. Yes; that is, if there was inability to put it back again in place.' Plaintiff was recalled as a witness, and asked: 'Q. You may state to the jury what position your foot--the right foot--assumed after this injury, when you were lying there on your back? A. It laid over on the side. Q. Did Dr. Bonnet ever see it lying over on the side? A. Yes, sir. He said he did not like it, although he could not understand why it did that. Q. Did he straighten it? A. He straightened it up, and it fell back again. Q. Did you have any control over it to keep it up from falling back? A. None whatever.' The defendant did not testify, and there was no testimony offered on his behalf controvering the facts and testimony as above narrated. From these facts and evidence it is clear that the injury to plaintiff's hip was a fracture instead of a mere bruise, and the question to determine is whether or not it appears that defendant was guilty of negligence in diagnosing and treating her injury.

In the absence of a special contract, the law implies that a surgeon employed to...