Dunn v. Beck, 6189.

Citation80 Mont. 414
Case DateNovember 22, 1927
CourtUnited States State Supreme Court of Montana


Appeal from District Court, Fergus County; John C. Huntoon, Judge.

Action by J. C. Dunn against Elmer Beck, in which defendant filed a counterclaim. From a judgment for defendant on his counterclaim, plaintiff appeals. Reversed and remanded, with direction to dismiss the counterclaim and to proceed to trial on complaint.

I. Parker Veazey, Jr., and R. H. Glover, both of Great Falls, and Cheadle & Cheadle, of Lewistown, for appellant.

Belden & De Kalb and Merle C. Groene, all of Lewistown, for respondent.


This action was begun by the plaintiff, a physician, to recover from the defendant the sum of $150 alleged to be due for professional services. The defendant answered, admitting the rendition of the services, but denied their value as alleged, and counterclaimed for malpractice, alleging damages sustained by the defendant, in consequence of plaintiff's negligent care and treatment of him, to the extent of $3,000. Upon issue joined by reply the cause was tried to a jury which rendered verdict in favor of the defendant in the sum of $1,500. Judgment was duly entered on the verdict, and an appeal has been prosecuted therefrom. At the close of the testimony offered by the defendant, a motion for a nonsuit as to the counterclaim was interposed by the plaintiff and by the court denied; and at the conclusion of all of the evidence the court denied plaintiff's motion for a directed verdict on the defendant's counterclaim. After the entry of judgment, a motion for a new trial was made by the plaintiff and by the court denied.

The only question presented for determination is whether the evidence is sufficient to support the verdict and judgment.

It appears that the defendant, J. C. Dunn, is a physician and surgeon, regularly licensed to practice medicine in the state of Montana. He is a graduate of Northwestern University, and has had 25 years' experience in the practice of his profession. He is a resident of the city of Lewistown, and has there been engaged in general practice as a physician and surgeon for the last 16 years. On the afternoon of April 8, 1925, in the city of Lewistown, the defendant was driving a 4-horse team hitched to a wagon, when the team became frightened and ran away. He was thrown from the wagon, but held to the lines, and was dragged along the road for a distance of about 75 yards, sustaining serious bodily injury. While lying on the roadside he sent for the plaintiff, who was his family physician. A few minutes later the plaintiff arrived upon the scene of the accident and had the patient removed to St. Joseph's Hospital in Lewistown, where, upon examination made with the aid of X-ray pictures, it was found that the defendant suffered a compound spiral comminuted fracture of the lower third of the femur bone of his left leg, and a compound fracture of the lower third of the humerus bone of his left arm. By compound fracture is meant one where the bone has been broken and protrudes through the surface of the skin; a spiral fracture is one which is uneven, and a comminuted fracture is one where the broken ends of the bones are shattered.

The arm fracture was about 1 inch above the elbow and was oblique in character, extending upwards and backwards, and that of the leg was about four inches above the knee joint. Immediately after having made an examination of the extent of the injuries, the patient was placed in a fracture bed, especially provided for such cases in the hospital, his wounds were cleansed, and the broken arm was placed in extension vertically from his body as he lay on his back in the bed, and was held in place by means of a rope passed through a pulley attached to an iron bar above the bed with weights suspended from the rope. His leg was put into a Thomas splint, and extension thereof was maintained either by the use of weights or by means of a torque. The Thomas splint is made of steel bars attached to a large ring of iron. The ring is made to fit the groin, and the steel bars extend down therefrom a distance beyond the foot where they are joined. Because of the character of the fractures and dirt ingrained into the wounds, there was grave danger of infection. During the first few days the patient had a temperature of 102 or 103 degrees, and his wounds in the vicinity of the fractures were swollen, red, and feverish. Being afraid of blood poisoning, the doctor scrubbed and cleansed the wounds, applied antiseptics and wet dressings, and administered antitetanus serum. He stated that he concluded the most important thing to be done at the outset was to clear up the infection, and that his efforts were principally directed towards that end for the first week, or until April 15. He was fearful of moving the patient from the bed into the X-ray room for the purpose of securing additional pictures to assist him in getting the broken bones in apposition for properly setting them, and concluded it most desirable to utilize a portable X-ray machine so as not to have to move the patient. As there was no such instrument in Lewistown, he sent to the city of Butte for one and had it transported to him by automobile without delay. With it he took several pictures of the arm and of the leg on April 15, and having then concluded that there was no longer danger of infection, put the broken bones in apposition as well as he could and set them, using the Thomas splint with torque extension on the leg, and a Jones right angle splint on the arm. All expert witnesses appear to be agreed that the Thomas splint is an approved method of treating such a fracture of the leg, either by the use of weights or a torque for extension; and the method employed in treating such a fracture of the arm is also recognized and approved.

On April 17th, because of the pain then suffered by the patient, Dr. Dunn says:

“After a few hours I knew that I must have caught an important nerve over the ends of the fractured bones. * * * I immediately set about to find a means of correcting that, and hit upon the method which is universally recognized as correct, the double inclined plane with the extension from the lower end of the femur by ice tongs-what we call calipers or ice tongs. * * * I made up my mind that was the proper thing to do, and I was then making arrangements to get the apparatus.”

On that date, by the use of his portable machine, he took X-ray pictures of the fractures, showing the bones to be in an end to end position, which, if maintained, should have permitted very satisfactory results. The next morning, April 18th, at about 7 o'clock, Dr. Dunn was discharged from further attendance upon the case. From the time of the removal of the defendant to the hospital until Dr. Dunn was discharged, the latter visited his patient every day, and as often as two or three times daily. On April 18th, Dr. Porter was employed on the case and on that day he summoned his partners, Dr. Deal and Dr. Biddle, to the hospital in consultation and to render assistance. Thereupon the patient was moved from his bed and the room he had been occupying to the X-ray room of the hospital. He was placed on the movable top of the hospital cart, and thus transported to the X-ray room and back to his bed. Thereupon X-ray pictures were taken of his leg and arm under the direction of Dr. Porter. The pictures so taken show a great displacement of the bones of the leg and an overlapping thereof of about two inches. The condition as depicted by these pictures of the leg are in great contrast with those taken the day before by Dr. Dunn. These X-ray photographs have been certified to this court and have been by us compared and examined in connection with the record. The defendant spent several weeks in the hospital under the care of Dr. Porter, and since his discharge X-ray pictures taken by Dr. Porter, before us, show about one and a half inches of overlapping of the bones, and his left leg is about one and a half inches shorter than the other.

It is agreed by all expert witnesses that medical authority supports the practice of getting possible infection under control before setting such fractures. Binney, a recognized authority on surgery, states that in case of a compound fracture possible infection must first be combated, and that reduction of the bones is of secondary consideration, and should not be made until the eighth day. Such was the course pursued by Dr. Dunn. Dr. Porter, as a witness for the defendant, says that in spite of approved methods of treatment a certain per cent. of fractures of the femur...

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    ...a physician does not incur liability merely by electing to pursue one of several recognized courses of treatment. Dunn v. Beck, 1927, 80 Mont. 414, 260 P. 1047. It is incumbent upon the plaintiff to show by expert testimony that the treatment pursued by the defendant was something other tha......
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