Burk v. Foster

• Decision Date: 21 October 1902
• Citation: 69 S.W. 1096,114 Ky. 20
• Parties: BURK v. FOSTER.
• Court: Kentucky Court of Appeals

69 S.W. 1096

114 Ky. 20

BURK v. FOSTER.

Court of Appeals of Kentucky.

October 21, 1902

Appeal from circuit court, Owen county.

"To be officially reported."

Action by Forest S. Burk against J. C. B. Foster. Judgment for defendant, and plaintiff appeals. Reversed.

W. W Dickerson and J. W. Cammack, for appellant.

Moody &amp Bourne and Lindsay & Botts, for appellee.

O'REAR J.

Appellant brought this suit against appellee, a physician and surgeon to recover damages for the alleged careless and negligent treatment of appellant's broken and dislocated arm. The original injury was caused by the overturning of appellant's wagon, the team becoming frightened, running away with the wagon, and dragging appellant over frozen and rough ground for quite a distance, fracturing his arm in one or more places between the elbow and shoulder, and dislocating the arm at the shoulder joint. The bone broken was the humerus. The dislocation was the slipping, pushing or wrenching the head of the humerus from the glenoid cavity. Within an hour after the accident appellee was called in to attend the injuries. It is charged that he failed to discover the dislocation, and therefore failed to treat it. The consequence was, as alleged, that the muscles of this arm have atrophied, the shoulder joint is stiffened, and this arm is now practically useless. All agree that, when discovered, some months later, it was too late to remedy the matter. It is charged that appellee's failure to discover and treat the dislocation was because of his negligence and lack of proper care and diligence. Appellant and appellee each lived in the vicinity of Monterey, in Owen county. Monterey is a village on the Kentucky river, but not on any railroad line. It is not claimed that the fractures were not properly treated. They have healed, and apparently in good condition. The whole case turns upon the nature of the examination given appellant by appellee, and appellant's duties in that respect. That appellee did not discover the dislocation is admitted, as it is, of course, that he did not treat it. That it could have been discovered by an ordinary examination does not seem to admit of doubt. As to the manner of treatment that should have been given to it, there is some conflict in the evidence. The circuit court gave the jury the following instructions as embracing the law of this case: "(1) The court instructs the jury that if they believe from all the evidence in this case that the defendant, in setting, dressing, and treating the plaintiff's arm, did not exercise that degree of skill, care, and attention which ordinarily skillful and prudent physicians and surgeons in the vicinity would have used in a like injury, then the jury should find for the plaintiff such damages as they believe from the evidence he has sustained, if any, not to exceed $10,000, the amount claimed in the petition, and in estimating the damage the jury should consider the physical pain suffered by the plaintiff on account of such unskillful and careless services, and the impairment of his ability to earn money on account thereof. (2) The court instructs the jury that if they believe from all the evidence in this case that the defendant, in setting, dressing plaintiff's arm, used and exercised that degree of skill, care, and attention that ordinarily skillful and prudent physicians and surgeons in the vicinity would use in setting, dressing, and treating a like injury, then the jury should find for the defendant. (3) The court instructs the jury that, although they may believe from all the evidence in this case that the defendant failed to exercise that degree of skill, care, and attention in setting, dressing, and treating plaintiff's arm which an ordinarily prudent and skillful physician and surgeon in that vicinity would have exercised in treating a like injury, yet if the jury further believes from the evidence that the result is as good as is usually obtained in like cases similarly situated, then the jury cannot find for the plaintiff any sum whatever on account of his permanent injury, if there is any." Under these instructions the jury found for the defendant.

For appellee it is claimed that this court approved this set of instructions (though this fact is not to be gathered from the opinion) in Alexander v. Menefee, 64 S.W. 855. In that action the patient had recovered a judgment against the physician under the instructions referred to, and the latter had appealed, claiming that these instructions were prejudicial to him, in not being sufficiently liberal. The case was affirmed, this court holding that the instructions were as favorable to the defendant as he was...