Duckworth v. Bennett

• Decision Date: 25 November 1935
• Docket Number: 228,229
• Citation: 320 Pa. 47,181 A. 558
• Parties: Duckworth et al., Appellants, v. Bennett
• Court: Pennsylvania Supreme Court

181 A. 558

320 Pa. 47

Duckworth et al., Appellants, v. Bennett

Nos. 228, 229

Supreme Court of Pennsylvania

November 25, 1935

Argued October 8, 1935

Appeals, Nos. 228 and 229, March T., 1935, by plaintiffs from judgments of C.P. Allegheny Co., April T., 1933, No 178, in case of Joseph Duckworth, a minor, by his next friend and father, Leo Duckworth, and Leo Duckworth, in his own right, v. N. H. Bennett. Judgments affirmed.

Trespass for personal injuries. Before GARDNER, J.

The opinion of the Supreme Court states the facts.

Verdicts directed for defendant, and judgments entered thereon. Plaintiffs appealed.

Errors assigned were direction of verdicts.

Judgments affirmed.

John Duggan, Jr., for appellants.

William A. Challener, with him William A. Challener, Jr., for appellee.

Before FRAZER, C.J., KEPHART, SCHAFFER, MAXEY, DREW, LINN and BARNES, JJ.

OPINION

MR. JUSTICE SCHAFFER:

We are here called upon to review the action of the court below, in giving binding instructions for defendant, a physician and surgeon, in a suit brought against him, in which it is alleged he was guilty of malpractice in treating a patient, the minor plaintiff.

Appellant, about sixteen years of age, fell on the floor of his father's store, as a result, so he said, of his knee giving way. He went to bed, and, two days afterward, consulted defendant, a physician and surgeon of twenty-eight years' experience, who was on the surgical staff of one of the Pittsburgh hospitals. The defendant examined him and diagnosed his complaint as an arthritis of the knee. The boy told the doctor that he had been treated for rheumatism by another physician for about a year, and that on his advice all the boy's upper teeth had been removed. As a part of the examination, the doctor measured the length of the boy's legs and found them equal, which negatived the idea of any trouble at that time in his hip. This examination took place on April 16, 1931.

Defendant prescribed a course of treatment for the arthritis, and ordered his patient to bed, where he remained for about six weeks, the doctor continuing to treat him. Ultimately, the swelling and inflamed condition of the knee, which had been apparent at the first examination, yielded to treatment, and improved, and the doctor resorted to gentle motion of the leg as a part of the cure. In so doing, on one of his visits, the doctor pushed the leg in towards the hip, and thus ascertained that there was not full movement there. Thereupon he advised that an X-ray be taken of the hip. This was done on June 18, 1931, and it developed what one doctor called by plaintiff designated a fracture of the femur, and what the defendant and four surgeons of established reputation and wide experience characterized as a separation of the epiphysis of the femur. The epiphysis is a cartilage attached to the femur which later turns to bone. The result of this fracture or separation is a shortening of plaintiff's leg an inch and a quarter.

The argument of appellant is that the condition from which he now suffers was the result of the fall, that although he complained of pain in his hip, defendant did not take an X-ray of the hip for eight weeks following the fall, that the failure so to do was improper and negligent, and the...