Derr v. Bonney

• Decision Date: 17 May 1951
• Docket Number: No. 31393,31393
• Citation: 231 P.2d 637,38 Wn.2d 678
• Court: Washington Supreme Court
• Parties: , 54 A.L.R.2d 193 DERR et ux. v. BONNEY et ux.

Page 678

38 Wn.2d 678

231 P.2d 637, 54 A.L.R.2d 193

DERR et ux. v. BONNEY et ux.

No. 31393.

Supreme Court of Washington, Department 2.

May 17, 1951.

Hamblen, Gilbert & Brooke, Spokane (Philip S. Brooke, Jr., Spokane, of counsel), for appellants.

Cannon, McKevitt & Fraser, Spokane, McCallum & Zellmer, Davenport, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from a judgment of dismissal in a malpractice case, entered at the close of the plaintiffs' testimony. May 7, 1947, Mrs. Derr fractured an ankle as the result of a fall from a bicycle. She was taken to the office of Dr. L. J. Bonney, a physician and surgeon, who has been practicing his profession in Odessa since 1931. He had set about 250 fractures since locating there. He had been the family physician for years. The first thing he did was to take an X ray of the injury, from which he diagnosed a fracture of the lower fourth of the fibula and an avulsion fracture of the medial side of the tibia. There was a small piece of the tibia, on the medial side, which was broken off. He found a fracture of the posterior lip of the tibia, which was shoved up and displaced upward to a sixteenth of an inch, and which he attempted to put back in place, but was not altogether successful. After setting the fractures he put a stockinette on the ankle and placed it in a plaster cast. Mrs. Derr complained of severe pain and he explained that that was to be expected. There is some dispute as to when he saw her afterwards, although his records showed that he saw her May 7, 8, 9, 10, 11, 12, 13, 23; June 2, 12, 25; July 7, 13, and about September 1st. The cast was not removed until July 13th. The doctor was away on a vacation from July 4th to July 13th. No X ray was taken while the cast was on. However, one was taken immediately upon the removal of the cast on July 13th. It showed the posterior lip of the tibia to be exactly in the same position as it was when the first picture was taken.

In the meantime Mrs. Derr's ankle became stiff and swollen and she continued to complain of severe pain. She could not walk without the use of crutches and could place very little weight on the injured foot. When the second X ray was taken, the doctor told her that it showed a good, firm union, and that the alignment of the bone was good. In September he told her to throw the crutches away and start walking.

In September the Derrs moved to Spokane. October 22nd she consulted Dr. William E. Grieve, who specializes in orthopedic practice. He examined the ankle and found it to be swollen and it appeared that the foot was displaced posteriorly. The heel slipped out a little farther than it should, but the X ray did not show that the foot was displaced forward. He was under the impression that the cause of stiffness, soreness and pain was due to the scarring of the soft tissues around the joint, resulting in circulatory disturbances. He recommended physiotherapy, rest and exercise. This treatment continued for several months without any appreciable benefit. The ankle continued to grow more stiff and the pain remained severe. He testified that there is very little action in the ankle joint and that she will have a stiff ankle for the rest of her life.

The negligence charged against respondent was that he:

(1) Negligently failed to attempt to reduce the swelling of the ankle joint;

(2) Negligently failed to set the broken bone in the ankle properly;

(3) Negligently failed to employ the use of X ray after he had set the ankle, to ascertain whether or not a satisfactory union had been secured;

(4) Negligently placed the ankle in a cast immediately following the accident, before any attempt had been made to reduce the swelling;

(5) Negligently failed to care for the appellant following the accident, by reason of the fact that he departed on a vacation without first removing the cast from the ankle.

In the recent case of Fritz v. Horsfall, 24 Wash.2d 14, 163 P.2d 148, we stated the following general rules governing actions for malpractice: (1) An individual licensed to practice medicine is presumed to possess that degree of skill and learning which is possessed by the average members of the profession in the community in which he practices, and that he has applied that skill and learning with ordinary and reasonable care to those who come to him for treatment; (2) The contract which the law implies from the employment of a physician or surgeon is that the doctor will treat his patient with that diligence and skill just mentioned; (3) He does not incur liability mentioned; (3) He does not incur liability for his mistakes if he has used methods recognized and approved by those reasonably skilled in the profession; (4) Before a physician or surgeon can be held liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases, or he must have neglected to do something required by those standards. In order to sustain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown, and, further that the doctor failed to follow the methods prescribed by that standard; (6) It is not required that physicians and surgeons guarantee results, nor that the result be what is desired; (7) The testimony of other physicians that they would have followed a different course of treatment than that followed by defendant, or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence. In such cases, the court must hold that there is nothing upon which the jury may pass, the reason being that the jury may not be allowed to accept one theory to the exclusion of the other; (8) Negligence on the part of the physician or surgeon by reason of his departure from the popular standard of practice must be established by medical testimony. An exception is recognized in those cases in which negligence is so grossly apparent that a layman would have no difficulty in recognizing it.

In this case the only witnesses were Mr. and Mrs. Derr, Dr. Bonney and Dr. Grieve. We can consider the testimony of Mr. and Mrs. Derr as to what was actually done, the pain which she suffered, and the result of what was done. But as to whether what Dr. Bonney did, or failed to do, constituted negligence under the rules above set forth, we must be guided by medical testimony. The rule, and the reason for the rule, was set forth in Hollis v. Ahlquist, 142 Wash. 33, 251 P. 871, 872, '* * * A doctor is not to...