De Bruine v. Voskuil

• Citation: 168 Wis. 104,169 N.W. 288
• Parties: DE BRUINE v. VOSKUIL ET AL.
• Decision Date: 06 November 1918
• Court: United States State Supreme Court of Wisconsin

168 Wis. 104

169 N.W. 288

DE BRUINE

v.VOSKUIL ET AL.

Supreme Court of Wisconsin.

Nov. 6, 1918.

Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.

Action by Minnie De Bruine against Anthony Voskuil and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to dismiss.

Malpractice. This action was brought to recover damages from the defendants, who are both physicians, for injuries alleged to have been sustained by reason of negligence on the part of the defendants in the care and treatment of a fracture of the tibia of the plaintiff's left leg. The plaintiff, a woman 49 years of age, on November 5, 1916, fractured the tibia of her left leg about two inches below the knee. The defendant Voskuil was sent for, and on arriving at plaintiff's house and ascertaining the difficulty, sent for the defendant Hess, and together they reduced the fracture and placed it in a fracture box in the ordinary way with Buck's extension, attaching a weight of 26 pounds thereto. On December 20th the apparatus was removed by the defendant Voskuil, a part of the weight having been taken off one week previously. At the time of the removal of the apparatus the defendant Voskuil attempted to ascertain whether or not union had taken place, but desisted on account of complaints made by the plaintiff. He advised the plaintiff to use her leg. He called again on December 27th and then discovered that there was no union of the fragments. He then advised an operation for the purpose of fastening the ends of the bones together. Plaintiff was then taken to a hospital in the city of Sheboygan, where Dr. Arthur Genter performed an open operation and fastened the bones together by means of what is known as a Lane splint. Plaintiff remained in the hospital at Sheboygan for a period of 10 weeks and then returned to her home. The bone was united perfectly, but plaintiff's left ankle was stiff as a result of the long disuse.

Plaintiff contends that defendants were negligent in the following respects: (1) In the application of a weight of 26 pounds to the broken leg, which caused the ends of the bones at the point of fracture to separate; (2) that the defendants discharged the plaintiff as cured on December 20th and directed the plaintiff to use her injured leg, when in fact there was no union and the fracture was not healed; (3) for the reason that the defendants did not call to see the plaintiff or inspect her leg for about 8 days after removing the apparatus; (4) that no X-ray picture of plaintiff's broken leg was taken up to the time she was removed to the hospital on December 28th. The case was submitted to the jury, and they returned a special verdict finding: (1) That the defendants did not use ordinary care and skill as physicians and surgeons in the treatment of the fractured leg; (2) that the present stiffened condition of plaintiff's left ankle was the natural and probable result of the failure of the defendants to use ordinary care and skill; (3) that the plaintiff's failure to exercise ordinary care contributed to produce the present stiffened condition of her ankle; and (4) assessed plaintiff's damages at $1,800. There were seasonable motions on the part of the defendants, and after argument the court directed judgment for the plaintiff in the sum of $1,800, and from judgment rendered pursuant thereto both the defendants appeal.Allan D. Young, of Sheboygan, and Lines, Spooner & Quarles, of Milwaukee, for appellants.

Charles Voigt, of Sheboygan, for respondent.

ROSENBERRY, J. (after stating the facts as above).

The errors assigned by the defendants raise the question whether or not there was sufficient evidence to sustain the verdict of the jury. In the first place, it is to be noted that the plaintiff's claim to compensation is based upon the condition of her left ankle, and for pain and suffering, in so far as the same are due solely to the negligence found by the jury. The court did not submit to the jury the question of whether or not the failure of the bone to unite was due to the negligence of the defendants, but the damages are limited, by the special verdict and the instructions of the court thereon, to such damages as the plaintiff sustained by reason of the stiffened condition of her ankle and for pain and suffering as stated. The evidence very strongly supports the proposition that the defendants adopted a correct method of treatment and the one in ordinary use in the vicinity. It appears without dispute that in ordinary cases of fracture the healing is by means of an exudate at the ends of the bone, which unites, forming a soft tissue, then becoming bony and causing a permanent union. It is undisputed in this case that prior to the operation there was never any exudate on the ends of the bones. Dr. Crosby, expert for the plaintiff, said:

“If the bones had been held somewhat apart, there generally still is an attempt at union. In other words, nature would attempt to repair the broken fragments. It would send out callus, and, if that can reach across, why, it might go together.”

All the medical testimony, including that of Dr. Crosby, shows that there are a certain percentage of cases in which nature makes no effort to unite the fragments, and there is no dispute that it was the situation in this case. The medical testimony further shows that there may be such a failure of nature in cases where absolutely correct treatment has been given and correct methods followed. There is no evidence to show that there was any greater stiffening of the ankle at the end of the seven weeks' period, when the extension was removed, than should be expected in cases of this character. Upon the trial it was stated that no claim was made of...