Dahl v. Wagner

• Decision Date: 02 October 1915
• Docket Number: 12568.
• Citation: 87 Wash. 492,151 P. 1079
• Parties: DAHL v. WAGNER.
• Court: Washington Supreme Court

151 P. 1079

87 Wash. 492

DAHL v. WAGNER.

No. 12568.

Supreme Court of Washington

October 2, 1915

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Peter Dahl against G. C. Wagner. Judgment non obstante veredicto was for defendant, and plaintiff appeals. Reversed.

Hugo Metzler, of Tacoma, and A. Emerson Cross, of Aberdeen, for appellant.

Bates Peer & Peterson and Charles Arnold, all of Tacoma, for respondent.

CHADWICK J.

At about 6 o'clock in the evening of March 8, 1913 plaintiff, a workman in a logging camp, was injured by a log rolling on his foot. The defendant, having the contract to treat the men under the hospital fee system, arrived at the scene of the accident about 11 o'clock and brought plaintiff to the hospital, which they reached at about 1:30 in the morning. Plaintiff's hurts consisted of a dislocation of one of the cuneiform bones of the foot and two cuts or wounds in the top of the foot. As described in the complaint and generally supported by the testimony, 'a log which he was attempting to load fell, striking him on the left foot, mashing, bruising and maiming' it so that plaintiff was most seriously injured. The condition of the foot is variously described as 'mashed to a pulp,' or 'mashed to a jelly.' Infection followed the wound and plaintiff was confined to his bed for from six weeks to two months. Plaintiff remained at the hospital until June 5th, when he left with the consent of the defendant. He thereafter called on defendant two or three times seeking relief from the pain which he claims to have suffered. His last call was made on the 28th of June. Defendant advised him to get some light work and he would probably have a good foot. The dislocated cuneiform bone--it is described by one of the medical witnesses as the keystone of the arch of the foot--was pressed downward and forward so that when plaintiff walks the weight of his body rests upon the projecting end of the bone, causing great pain and suffering. It is alleged that defendant was guilty of neglect and malpractice, in that he neglected to reset the bones within the first three weeks by manipulation, or in failing to perform an operation by cutting the foot open, spreading the bones with forceps, and pushing the dislocated bone, which is wedge-shaped--the top being the base of the wedge--back into place. The case went to trial resulting in a verdict for the plaintiff. Upon defendant's motion a judgment was entered non obstante, and plaintiff has appealed.

There does not seem to be any real controversy as to the facts. The legal position assumed by respondent is admitted by appellant. The ultimate question is: Was it the duty of the respondent to attempt to set the dislocated bone by manipulation, or, the time passing when this might have been done, it being admitted that nature would grow new tissue as well as adapt the old tissue to the new situation, should respondent have performed an operation?

We have read the record with care, and, so far as the main issue is concerned, we can make no more out of it than that respondent is charged with an error of judgment. Appellant put a medical witness upon the stand who expressed the opinion that, if there was swelling and infection so as to prevent a resetting or an operation during the acute stage, an effect should have been thereafter made to restore the functions of the foot. The essence of his opinion is that the sooner the dislocation is reduced by one method or another the better. On the other hand, several medical men and surgeons of equal skill and judgment, so far as the record shows, are most positive in the opinion that the respondent was in no sense delinquent; that it would have been foolhardy, if not impossible, to reset the bone by any process until the wounds had entirely healed and all danger of latent infection had passed; that the bruising or cutting of the new tissue necessarily incident to a resetting or an operation would have been hazardous; that the bone would not have remained in place if set (not admitting that it could have been so set); that an operation might have made the infective germs, which may lie dormant after such an injury, active, resulting in the possible loss of the foot or the life of appellant; that the duty of a surgeon under the conditions disclosed is to first look to the life of the patient. The treatment is described by one of the surgeons as 'a monument of good surgery.' It will be seen then that the real question between the expert witnesses is when an operation might or should have been performed.

It has been the uniform holding of this court that where doctors of equal skill and learning, being in no way impeached or discredited, disagree in opinion upon a given state of facts the courts cannot hold a defendant in a malpractice suit to the theory of the one to the exclusion of the other. This is the logic of Brydges v. Cunningham, 69 Wash. 8, 124 P. 131. It is enough if the treatment employed 'have the approval of at least a respectable minority of the medical profession who recognized it as a proper method of treatment.' Lorenz v. Booth...