Cady v. Fraser

• Citation: 222 P.2d 422,122 Colo. 252
• Decision Date: 24 July 1950
• Docket Number: No. 16376,16376
• Parties: CADY v. FRASER.
• Court: Colorado Supreme Court

Page 422

222 P.2d 422

122 Colo. 252

CADY v. FRASER.

No. 16376.

Supreme Court of Colorado, en Banc.

July 24, 1950.

Eugene H. Tepley, Denver, for plaintiff in error.

Paul M. Clark, Lawrence M. Wood, Denver, for defendant in error.

STONE, Justice.

This is an action against a physician and surgeon for damages for alleged malpractice. Plaintiff in his complaint alleges that he was treated by defendant for a fractured ankle; that in such treatment defendant failed to use proper care, and that he 'refused to allow this plaintiff to obtain other medical aid or assistance, although repeatedly requested to do so by this plaintiff.' At the trial, the court granted a motion for dismissal for failure of proof. Of the three points specified here for reversal, two concern the sufficiency of the evidence to require submission of the case to the jury, and the third relates to the rejection of evidence.

It first is urged that 'treatment after discharge and in spite of protest is malpractice similar to an assault and damage is presumed.' The substance of the testimony on that point is that defendant was employed, not by the plaintiff, but by the plaintiff's employer, or his insurer, for treatment of the fractured ankle; that sometime during his 81 day stay in the hospital, plaintiff told defendant that he wanted an orthopedic doctor, and defendant replied that he didn't need one and that the insurance company wouldn't stand for the expense; that thereafter plaintiff told defendant 'to get off the case,' but he refused, and continued with his treatment and care; that plaintiff had someone at the hospital call his employer to ask for the services of another physician and did not get one; that he then had his daughter call up 'the state industrial bureau' and that as a result, Dr. Barnard, a bone and joint surgeon of 20 years' experience in that field, came and examined him, in consultation with defendant, and that thereafter plaintiff made no further attempt to obtain the services of another physician or to discharge defendant. There is no testimony that plaintiff at any time refused the ministrations of defendant or suffered them unknowingly. His own testimony discloses that he accepted such ministrations, reported to defendant the fact and locations of his pain, and that after his discharge from the hospital he voluntarily went to defendant's office for further examination, and has continued since his hospitalization to use an elastic stocking prescribed by him.

This testimony tendered no issue of trespass for the jury. First, it is not embraced in the issues pleaded. Negligence in treatment, as alleged in the complaint, and treatment without employment present basically different claims. Hershey v. Peake, 115 Kan. 562, 223 P. 1113, and Rolater v. Strain, 39 Okl. 572, 137 P. 96, 50 L.R.A.,N.S., 880. The one is based on the existence of a contract and authority for service, and the other upon the lack of such contract or authority. The one is based on lack of care or skill in the performance of services contracted for, and the other on wrongful trespass on the person regardless of the skill or care employed. The assertion of one is a denial of the other. Both cannot exist at the same time. In the case before us the pleading of failure to use proper care necessarily implies authority to treat and negates trespass. While issues may properly be tried even when not pleaded, yet they must be deliberately presented and knowingly considered by the court. Counsel is not required to be on the alert to challenge every objectionable question or answer lest it be later made the basis of another claim than that intentionally and fairly tendered. Second, plaintiff's own testimony diseloses beyond dispute his acceptance of, his acquiescence in, and his ratification of the services of defendant, notwithstanding instruction to 'get off the case,' and the expressed desire that his employer obtain another physician to treat him.

It next is urged that 'defendant's failure to inform plaintiff that he had a broken and unhealed bone in need of further treatment was malpractice.' The injury occurred in the summer of 1942. The trial was begun on the thirtieth day of September, 1948. Not surprisingly, defendant had no recollection of what he had told plaintiff as to the lack of union of the bone at that time. There is little, if any, conflict in the evidence. The substance of the testimony concerning this contention is that plaintiff suffered a Pott's fracture--a fracture of the internal malleolus--, and that after the cast was put on an X-ray disclosed the fractured...