Dorris v. Warford

• Decision Date: 27 February 1907
• Parties: DORRIS v. WARFORD.
• Court: Kentucky Court of Appeals

100 S.W. 312

124 Ky. 768

DORRIS v. WARFORD.

Court of Appeals of Kentucky.

February 27, 1907

Appeal from Circuit Court, Ballard County.

"To be officially reported."

Action by Lula Warford against S. M. Dorris, to recover damages for the alleged unskillful and negligent treatment of plaintiff's broken arm. From a judgment for plaintiff defendant appeals. Reversed, and remanded for a new trial.

J. M Nichols & Son and M. T. Shelbourn, for appellant.

Hal S Corbett and R. T. Lightfoot, for appellee.

HOBSON J.

On August 7, 1904, Miss Lula Warford had her arm broken by the turning over of a buggy in which she was riding at night. She was taken to the office of Dr. S. M. Dorris at Bandana. He examined the arm and found both bones broken between the elbow and the wrist, and that the break of the bones was oblique or slanting, and not square across. He put on a temporary dressing that night, and told her he would come to her house the next day and put on a permanent dressing. The next day he went to her father's house with another physician. They took off the temporary dressing and put on a permanent dressing. The arm was very much swelled the night before when the doctor dressed it, and was more swelled the next day. They thought they got it straight, and that it would heal up all right. The doctor visited Miss Warford several times after this, and she went sometimes to his office. Finally, she went to his office on one occasion, and not finding him there, left a note on his slate saying that she would get another physician. For some weeks after this he did not see her. Finally he was sent for, and found the bandage on the arm loose. From that time he treated her, but her arm is curved and is not strong. There was some testimony on her behalf to the effect that the doctor took the dressing off when he ought not to have done so, and that this was the cause of the crooked arm. On his behalf the testimony tends to show that he removed the dressing at her request, and upon statements made by her to him which would justify a physician in removing the dressing. She introduced some proof to show that the doctor did not pay as much attention to the arm as he should, and he introduced proof that she went about too much with the arm, and was not careful enough with it. The proof on both sides seems to show that such a fracture, where both bones are broken obliquely, is very hard to manage, and that in a large per cent. of cases where the best treatment is had a bad arm results. On these facts, the court instructed the jury as follows:

"(1) The court instructs the jury that if they believe from the evidence that the plaintiff, Lula Warford, engaged the professional services of Dr. S. M. Dorris to treat her injured arm, and that said defendant failed to exercise ordinary care and skill in such treatment as the exigencies of the case required, or such ordinary proper treatment as the defendant might have discovered to have been necessary by the use of ordinary care and skill in the examination of the injured arm, and you further believe from the evidence that by reason of such lack of ordinary care and skill upon the part of defendant, if any, plaintiff has been damaged, then you will find for her such actual damages as you may believe from the evidence she has sustained thereby, not exceeding the sum of ten thousand ($10,000) dollars, the amount claimed in the petition; and in estimating such damages, if any, you will consider the bodily pain and mental anguish suffered by plaintiff on account of the negligence of defendant in treating said arm, if any, and any permanent injury you may believe from the evidence has resulted to plaintiff from such negligent treatment, if any.

(2) The court instructs the jury that negligence is the want of ordinary care; that ordinary care as applied to this case is that degree of care that physicians and surgeons would ordinarily use in the practice of their profession of medicine and surgery--that is to say, their best skill and ability. The skill required by law in a physician and surgeon is that degree of skill possessed and exercised generally by physicians and surgeons of ordinary care and skill in the same or similar communities as was defendant located.

(3) The court instructs the jury that unless you believe from the evidence that the defendant, Dr. S. M. Dorris, undertook to treat the plaintiff's arm, and failed to use the ordinary care and skill, as laid down in instruction No. 2, the law is for the defendant, and you should so find, although you may believe from the evidence that she sustained permanent injury to her arm, and that she suffered bodily and mental pain by reason thereof.

(4) The court instructs the jury that if you believe from the evidence that plaintiff was guilty of negligence in failing to take...