Cornwell v. Sleicher

• Decision Date: 13 April 1922
• Docket Number: 16744.
• Citation: 119 Wash. 573,205 P. 1059
• Parties: CORNWELL v. SLEICHER et al.
• Court: Washington Supreme Court

205 P. 1059

119 Wash. 573

CORNWELL v. SLEICHER et al.

No. 16744.

Supreme Court of Washington

April 13, 1922

Department 1.

Appeal from Superior Court, Lewis County; Geo. D. Abel, Judge.

Action by D. Cornwell against J. M. Sleicher and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

C. D Cunningham, of Centralia, and Forney & Ponder, of Chehalis for appellant.

A. E Rice, of Chehalis, and Bates & Peterson, of Tacoma, for respondents.

FULLERTON J.

This is an action for malpractice. On the trial in the court below, which was entered upon by the court sitting with a jury, the plaintiff was nonsuited at the conclusion of his evidence, and appeals from the judgment later entered.

The evidence which the jury would have been entitled to believe had the cause been submitted to them was in substance this: The plaintiff suffered a fracture of a bone in his right arm through an accidental cause. The fracture was an oblique fracture of the radius, the fracture being about midway between the elbow and the wrist. The plaintiff lived in a rural neighborhood, and, after receiving the injury, consulted a local physician. The physician gave him temporary aid, and advised him to consult a surgeon, as he (the physician) did not have the facilities necessary to properly reduce the fracture. The plaintiff thereupon consulted the defendant Sleicher, a physician and surgeon practicing at Chehalis. The defendant undertook to reduce the fracture. He first took radiographs of the arm from two positions, and, thereby discovering the nature of the fracture, sought to reduce it by 'extension and counter extension.' After satisfying himself that he had the bones in place, he put upon the arm a wire splint intended as a temporary support, the swollen condition of the arm then forbidding placing it in a permanent cast. Another radiograph was then taken. The defendant, being satisfied that the bones were in place, instructed the plaintiff as to the manner of carrying the arm in the meantime, and to return in 10 days, when he would put on a permanent cast. The plaintiff returned as directed, whereupon the defendant removed the splint, and occularly and digitally examined the fracture. He then remarked 'that the bones were not quite together, and he would slip them,' and this he sought to do by pressure. The plaintiff then called his attention to a protuberance at the wrist, and, examining this, the doctor remarked that the bone would have to be slipped a little, and proceeded to manipulate it. After working upon it for a moment a 'catch or snap was heard,' when the protuberance disappeared. The doctor then placed the arm in a plaster cast, and told the plaintiff to return in three weeks. The plaintiff again returned as directed, when the doctor removed the cast. He then examined the arm, and pronounced it satisfactorily healed. The plaintiff then called his attention to the fact that the arm was crooked, and that it did not have its usual motion. The doctor then had him move his arm in various directions, and told him that the difficulties complained of would be overcome in a short time. He then gave the plaintiff directions as to its future use, telling him the arm 'was all right, but to be careful of it for a couple of weeks; then to go to work with it gradually, and not strain it.' The plaintiff then started for his home, riding in an automobile driven by his son. The arm soon became excessively painful. On feeling of his arm he found a lump on the arm underneath the fracture, which he described by saying that 'it seemed like I could hook my thumb right under the end of the bone sticking out.' On reaching home his son and some of his neighbors examined the arm. Testifying, they described it as crooked, and that there was a bunch underneath the arm, not only palpable to the touch, but visible to the eye. The plaintiff because of pain carried the arm in a sling for a period of three weeks, and after taking it from the sling was unable to use it at all for a time, and after that only to a limited extent, and with great pain. The plaintiff then consulted with another surgeon. This surgeon took radiographs of the arm, with the arm in the same positions it was when the first of the radiographs was taken. These, with other examinations made by him, convinced him that the arm required further treatment. He first thought it feasible to break the bony union which had formed and reset the bone. On further consideration, however, he concluded it was not so feasible, and treated the arm by cutting into the arm and chiseling off a protruding end of the fractured bone. The surgeon described the arm as showing 'a slight angle,' and a 'very little shortening.' He also testified that there was some loss of movement.

The plaintiff called the defendant as a witness on his own behalf, and had him describe the treatment he gave the arm, and identify the radiographs taken by him. On cross-examination by his own counsel he testified that the bones were in apposition when be put on the wire splint and the permanent cast, and were so when he removed the latter. The second surgeon, in answer to a hypothetical question embracing this idea put to him on cross-examination, testified that the treatment was that prescribed by all of the books, and such as is commonly afforded by all physicians practicing in the defendant's neighborhood. On redirect examination, however, he testified as follows:

'Q. Doctor, if, in spite of the fact he placed this splint upon his arm, made a digital and an X-ray examination and afterwards put the arm in a plaster cast and gave the patient instructions, and after the plaster cast was removed, nevertheless the bone was not in place, what would you say? A. Well, am I to admit it was not in place when it was taken off? 'Q. After the plaster east was removed it was not in place--that is, not in apposition; what would you say as to

...