Edwards v. Uland

Decision Date26 June 1923
Docket Number24,375
Citation140 N.E. 546,193 Ind. 376
PartiesEdwards v. Uland
CourtIndiana Supreme Court

From Knox Circuit Court; William H. Bridwell, Special Judge.

Action by Raymond Uland against Edward T. Edwards and others. From judgment for plaintiff, the defendants appeal. Reversed. (Transferred from the Appellate Court under subdivision 2 § 1394 Burns 1914.)

The judgment is reversed.

Kessinger & Hill, W. A. Cullop and Hays & Hays, for appellants.

A. J Padgett and J. W. Lindley, for appellee.

OPINION

Ewbank, J.

Appellee recovered a judgment for $ 2,000 in an action for alleged malpractice. The complaint, so far as it is pertinent to a consideration of the questions presented for review, alleged substantially as follows: That defendants (appellants) were and are duly licensed physicians and surgeons engaged in the practice of their profession; that plaintiff employed them to treat a disorder which made his arm very painful, and told them he previously had been afflicted with osteomyelitis, from which necrosis, or "bone death" had resulted, with sloughing off of parts of the bone, and the formation of pus in the bone marrow and adjoining soft tissues; that defendants attempted to diagnose plaintiff's ailment, but negligently failed to give it a proper diagnosis, and adopted a vaccine treatment; that osteomyelitis is infectious, and the only known treatment for it is by a surgical operation and the removal of the affected portion of the bone by cutting it away; that, because of the incorrect diagnosis, defendants treated plaintiff's arm with vaccine, and not by surgery for a period of time, during which the infection spread to parts of the bone not at first infected, so that ultimately, parts of the bone of plaintiff's arm had to be removed in a much larger amount than would have been necessary if a surgical operation had been resorted to in the first instance; that such spreading of the infection was because of the negligence, unskillfullness and carelessness of the defendants in their diagnosis and treatment of said disease; that if the defendants had properly treated said injury at the time they first undertook such treatment, and had removed the small affected part of the bone at that time, plaintiff would have recovered promptly, with the full use of his arm; that said disease of osteomyelitis is a disease easy to diagnose and easy to cure, and that it was unskilful, careless and negligent for the defendants to fail to diagnose plaintiff's ailment as osteomyelitis, and it was careless and negligent on their part to try to treat it by other means than by a surgical operation; that thereby plaintiff was caused to suffer pain, and his elbow joint was made stiff, and he sustained damages in an amount named, though no special damages by reason of money expended, expense incurred or loss of time are alleged or claimed.

Something is said in the complaint about incisions in the flesh made by defendants for drainage of the pus being allowed to close, and about a rubber drainage tube used in an incision being inserted in such a careless, unskilled and negligent manner that it did not afford proper drainage, and being negligently left in the wound without cleansing, and when it was stopped up. But it is not alleged that these acts and omissions made plaintiff's arm any worse, or even that they caused him pain or inconvenience, or otherwise injured him.

The defendants answered by a denial. The cause was submitted to a jury, to whom the court gave 35 instructions, refusing to give certain others asked by the defendants. A motion for a new trial for the reasons that (a) the verdict is not sustained by sufficient evidence, and that (b) the court erred in giving each of certain instructions, and (c) in refusing to give certain others, and (d) that the damages were excessive, was overruled, and proper exceptions were reserved, which ruling is assigned as error.

Obviously, the theory of the complaint was that of recovering damages for negligence in making a wrong diagnosis and giving treatment accordingly, treating with vaccine for a supposed disease of the flesh and blood, instead of performing a surgical operation to remove infected bone. And a perusal of the evidence and instructions tends to convince one that the case was tried throughout on that theory. But the evidence fell short of making out a cause of action for negligence in making a diagnosis. The evidence proved, without contradiction, that both of the defendants graduated from medical colleges, each taking a four year course, that each had had hospital training, each had duly obtained a license to practice his profession, and each had practiced for some years; that, in making a diagnosis, they obtained a history of plaintiff's case; that they stripped him and observed the scars from the former operations he had undergone; examined his blood for pus germs and by counting the number of white blood cells; examined his urine, testing it for albumin, sugar, gravity, acidity and reaction, and found it normal; examined the lame arm by pressure for any tenderness resulting from a disease of the bone and found none; procured an ex-ray picture of the arm which showed the bone not involved; examined the pus under a microscope as soon as it came out through the skin, and decided that the infection was streptococcus; that, upon this examination, they decided that only the tissues were infected, until after five months, when they found the bone to be infected and removed parts of it by a surgical operation, and that still more of the bone was infected and had to be removed when another surgeon was called a few weeks thereafter; that at all stages they consulted together. There was much evidence that the measures adopted to aid in the diagnosis were proper, and the undisputed evidence of plaintiff himself was that the surgical operation performed by another surgeon a few days after defendants stopped treating him had to be followed by another surgical operation later for the removal of bone, and that the other surgeon had perviously operated many times and removed pieces of bones, having had plaintiff under the influence of ether ten or twelve times for that purpose, and removed many pieces from beneath the skin without ether; there was no evidence that any means of diagnosis used by defendants was improper, or that the exercise of care required the use of any other means in deciding what was the matter with plaintiff's arm and how it should be treated. Plaintiff's own witnesses testified that the treatment adopted would have been proper for the disease of the soft tissues which defendants diagnosed plaintiff's ailment to be. But three expert witnesses testified that, in their opinion, upon certain facts which some of the evidence tended to prove must have been learned by defendants from such history and examination, the plaintiff had acute osteomyelitis, requiring a surgical operation; while six expert witnesses testified that upon those facts, in their opinion, the plaintiff was not afflicted with osteomyelitis when defendants were treating him for infection of the tissues, but that the treatment which was given was proper for what he really was afflicted with.

Assuming that plaintiff was afflicted with osteomyelitis from the beginning and that defendants were mistaken in their diagnosis, such facts alone would not give him a right to recover damages. A physician or surgeon is not an insurer and does not bind himself to make a correct diagnosis and effect a cure or to respond in damages. He is only bound to possess reasonable skill and to use ordinary care; and if he makes a mistake in his conclusion as to whether a sore place on the skin has its origin in the flesh or in the bone under the flesh, he is excused from liability if, possessing reasonable skill, he has used ordinary care in making an examination, and has honestly reached the mistaken conclusion by the use of such skill and such care. In the absence of evidence of any lack of skill, or of any lack of care in making the examination and forming his judgment, mere proof that the diagnosis was wrong will not support a verdict for damages. Not having warranted a cure, if he has reasonable skill and learning and uses ordinary care, he is not liable for the consequences of an honest mistake of...

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