Davis v. Spicer

• Decision Date: 08 October 1887
• Citation: 27 Mo.App. 279
• Parties: GRANVILLE W. DAVIS, Defendant in Error, v. CARLTON W. SPICER, Plaintiff in Error.
• Court: Kansas Court of Appeals

27 Mo.App. 279

GRANVILLE W. DAVIS, Defendant in Error, v. CARLTON W. SPICER, Plaintiff in Error.

Court of Appeals of Missouri, Kansas City.

October 8, 1887

ERROR to Andrew Circuit Court, HON. H. S. KELLEY, Judge.

Affirmed.

Motion for rehearing denied.

The case is stated in the opinion of the court.

JAMES F. MISTER, for the plaintiff in error.

I Davis, a farmer about sixty years old, was thrown from his horse on the sixteenth or seventeenth day of August, 1881, by which his right leg was broken between the knee and the hip joint. The fracture was very oblique; he was utterly disabled by the fall, and had to be hauled to the house in a sled, and was placed in bed, and directed that Doctor Spicer be sent for to treat his leg, which was done. Spicer came, and after examining the leg and pronouncing it broken, used means in setting and treating it, such as are recognized by the medical profession as among the best and most efficient in use. After visiting Davis three times, up to the thirtieth of August, he told him that, in his opinion, it was not necessary to visit him regularly, but if anything went wrong he should send for him and let him know, which Davis promised to do. On the ninth of September, Davis sent for him because of a pain in his side, which he treated and relieved, and was not sent for afterwards. Davis kept his bed for eighty or ninety days, and on getting up, for the first time, found that the broken leg was two or three inches shorter than the other; but he did not send for Spicer, who only saw it some months later, while calling at the house of Davis as a friend. Not long afterwards this suit was brought, on the ground that the treatment was unskilful and negligent, so that Davis was permanently injured by it. The evidence at the trial was uniform that the methods of treatment were good and in accordance with the most approved authorities, except possibly, that the visits should have been more frequent, in the earlier stages of the case, but even this was supplemented with the statement that when it was agreed between the doctor and patient (as it was shown to be agreed in this case), that the doctor should be sent for and notified, that such an agreement is usual and customary, and entitled to be relied on, and that the duty and obligation of the patient is imperative under it. There is also very considerable evidence in the record, not only that Davis did not attempt to fulfill his solemn obligation, but that he disobeyed, disregarded, and ignored the instructions and directions given by Spicer; especially in sitting up in bed, against specific orders to the contrary; and in removing the weights when their services were most needed, because of a little transient pain or inconvenience, all without sending for or even communicating with Spicer. It further appears, not only from the evidence of physicians testifying at the trial as experts, but from such eminent authority as Dr. Hamilton (very recently deceased), that the average shortening in a fracture of this character is about one and one-half inches; that the shortening might have resulted no better under any treatment or cure; and it appears that Hamilton's tables run from a perfect cure to three inches shortening, and that there is more or less absorption of the ends of the bones, especially in case of an old man. The minor differences among the medical experts at the trial are of no importance. Of course, they would each have done the matter a little differently, and would have " liked" to do some other things, or else the phrase of the " doctors differing" would go out of use; but it is somewhat remarkable that in every case the doctors here said that Spicer's reputation was good as a surgeon, and that his treatment in this case was in accordance with the most approved and scientific methods. Of course, they wanted a " hard" bed and " fixed" dressing, etc., etc., but neither of these can be extemporized in the backwoods of Andrew county, during a rain, and so Davis had to be treated on such bed as he had. Besides, Dr. Hamilton, the greatest authority on surgery of his age, says a hard bed is not necessary, and he condemns a fixed dressing. Hamilton on Fractures, etc., 474, 64, and 483. Considering the fact that Davis was about sixty years old at the time of being thrown from his horse; that he was a large man, weighing nearly two hundred pounds; and had been afflicted with rheumatism for fifteen years, during which time he had more than one attack of extreme severity; it is more than probable that the result obtained in this case was the best possible, under the circumstances, by any known method or means of treatment. [" Note 1. The more difficult forms of fracture * * * are those called in the books compound and oblique simple fractures. * * * In almost all oblique fractures there is, necessarily, a shortening of the limb, under the best of treatment." Elwell on Malpractice, etc., 76-85; Hamilton on Fract., etc. [5 Ed.] 27, 38, 418; Sir Artley Cooper's Dis. & Fract. 319; Ashurst's Surg. 270, 271. " Of one hundred and five cases of fracture of the femur (as in this case), only about ten are reported as resulting in perfect cures. * * * Shortening is almost universal in these cases of fracture of the femur. * * * And in the case of an oblique fracture of the shaft of the femur occurring in an adult, whose muscles are not paralyzed, but offer the ordinary resistance to extension and counter extension, and where the ends of the broken bone have once been completely displaced, no means have yet been devised by which an overlapping and consequent shortening of the bone can be prevented." Elwell on Malpractice, etc., 97, quoting report of Professor Frank H. Hamilton; Hamilton on Fract., etc., 432-441]. In any event there is an utter failure of evidence to show unskilfulness or negligence on the part of Spicer, while there is much evidence of bad faith, disregard of instructions, and neglect of the use of ordinary means for his own care and safety, on the part of Davis.

II. Such being the fair result of the evidence, as literally transcribed from the record without abridgment, it remains to be seen what liability Spicer is under to Davis, if any, and in reaching a satisfactory answer to compare it with the declarations of law given in this case. (1) The obligation of Spicer in this case, under the law, was, that he should use due care and diligence, and that he had and would exercise the skill and knowledge ordinarily possessed by members of his profession. 2 Parsons on Cont. [5 Ed.] 54; 2 Addison on Cont. [Morgan's Ed.] sec. 894; Smothers v. Hanks, 34 Ia. 286; Branner v. Stormont, 9 Kas. 51; McCandless v. McWha, 22 Pa.St. 261; Craig v. Chambers, 17 Ohio St. 259; Hitchcock v. Burgett, 38 Mich. 501; Mayo v. Wright, 5 West. Rep. 595. (2) But to render him liable for negligence, or want of due care and skill, there must have been a want of ordinary care and skill, and to such a degree as to have led to a bad result. 2 Addison on Cont. 563; Smothers v. Hanks, 34 Ia. 286; Chamberlain v. Morgan, 68 Pa.St. 168; Teft v. Wilcox, 6 Kan. 46; West v. Martin, 31 Mo. 375; Hitchcock v. Burgett, 38 Mich. 501; Piles v. Hughes, 10 Ia. 579. But the mere fact of a bad result does not create a liability, nor raise a presumption of want of care and skill. Teft v. Wilcox, supra; Haire v. Reese, 7 Phila. 138.

III. (1) But if the patient's own negligence contributed to the injury or the damage, he cannot recover against the physician. Hubbard v. Thompson, 109 Mass. 286; Scudder v. Crossan, 43 Ind. 343; Callahan v Waine, 40 Mo. 131; O'Hara v. Wells, 14 Neb. 403; Mallen v. Boynton, 132 Mass. 443; Small v. Howard, 128 Mass. 131; Potter v. Warner, 91 Pa.St. 362; Gliselman v. Scott, 25 Ohio St. 86; Karle v. Railroad, 55 Mo. 484; Morrissey v. Ferry Co., 43 Mo. 380; Schaabs v. Wheel Co., 56 Mo. 176; Jones v. Angell, 95 Ind. 376; Railroad v. Shanks, 94 Ind. 598; Railroad v. Hetherington, 83 Mo. 510; Levy v. Canal Co., 34 La.Ann. 180; Doggett v. Railroad, 78 N.C. 305; Drake v. Mount, 33 N.J. Law [4 Vr.] 441; Carpenter v. Blake, 60 Barb. [N. Y.] 488; Cooley on Torts, 679; McCandless v. McWha, 22 Pa.St. 268; Railroad v. Bailey, 11 Ohio St. 333; Lockhart v. Lichtenthalen, 46 Pa.St. 151; Brown v. Maxwell, 6 Hill [N. Y.] 592; Heil v. Glanding, 42 Penn. 493; Haley v. Earle, 30 N.Y. 298; Berge v. Gardiner, 19 Conn. 507; Eakin v. Brown, 1 E. D. Smith [N. Y.] 36. In this case, the plaintiff persistently disobeyed and disregarded the instructions. He remained in bed long after he had been sent word to get up. It was his duty to have tried to do what he was instructed to do, and if he had tried and failed, then sent the doctor word, as he contracted to do, so the doctor could see what was wrong, and have the opportunity of changing the treatment. Gross on Surgery, 922-3. Again, it was his duty to have notified Spicer when the splints split; so, also, when the adhesive straps got loose, as this was a vital part in the treatment, until the bone is solid and a good result got. Again, he was guilty of gross carelessness, in trying the strength of the union in the broken leg, by taking it in his hands and swinging it hither and thither, with a smoothing iron and two horse-shoes tied to his foot. This would be, ordinarily, sufficient to re-fracture an average union of such a fracture, at this time, in a man of his age and condition. Nor should he have laid the weights on the bed for a moment, as he told Dr. Dunn he did. If the weights were too heavy, so as to cause him pain, he should have sent for Spicer, as he contracted to do; besides the weights would have extended the leg, if set short. Hamilton, 469. Again, it was the duty of Davis to send for Spicer when he got up and found his leg was too short,...