Getchell v. Hill

• Decision Date: 21 April 1875
• Citation: 21 Minn. 464
• Parties: LEVI L. GETCHELL <I>vs.</I> NATHAN B. HILL & another.
• Court: Minnesota Supreme Court

Page 464

21 Minn. 464

LEVI L. GETCHELL vs. NATHAN B. HILL & another.

Supreme Court of Minnesota.

April 21, 1875.

Action against the defendants, Drs. Hill and Lindley, as partners, to recover damages for alleged malpractice in their treatment of plaintiff's broken arm. At the trial in the district court for Hennepin county, before Vanderburgh, J., the plaintiff had a verdict for $4,000. A new trial was refused, and the defendants appealed.

Cornell & Bradley, for appellants.

Merrick & Hale, for respondent.

GILFILLAN, C. J.¹

This is an action for malpractice as surgeons, in which plaintiff had a verdict. There are exceptions taken to the charge of the court; but as we find it necessary to set aside the verdict, on the ground that the evidence is not sufficient to sustain it, we do not deem it necessary to pass upon those exceptions.

A physician or surgeon is not an insurer that he will effect a cure. He is held to a reasonable amount of diligence and skill, unless he contracts to do more, and is liable only for injuries that result from his neglect to exercise that degree of diligence and skill. It is not expected that he should come up to the highest standard of skill known to the profession; for in this profession, as in others, natural genius and unusual industry, learning and experience, may enable some of its members to attain a pre-eminence that it would be vain to expect in the great majority. Any person claiming a cause of action for neglect to employ the degree of diligence and skill required, must prove such neglect, and that the injury or want of cure resulted from it.

The malpractice alleged was in the defendants' treatment of plaintiff's broken arm. On February 9, 1872, the arm was broken by a tree falling against plaintiff. Some thirty hours afterwards the plaintiff employed defendants, who were practising physicians and surgeons, to treat it, and they continued treating it until March 28th, when he discharged them, and employed Dr. Huntington, who treated it till about the last of May, after which time it does not appear that it received any treatment. There were two fractures, a transverse fracture of the ulna, and an oblique fracture of the radius. The ulna formed a perfect union; the radius never formed a perfect bony union, but reunited by a ligamentous union. When first called, the defendants placed splints and bandages, and interosseous compresses on the arm, and left it in a prone position, that is, with the palm down, and kept it in that position for twelve or thirteen days, meantime examining it from time to time, and at the end of that time raised it to a semi-prone position, that is, with the thumb up.

The only suggestion of improper treatment that we can see in the evidence was in leaving the arm, for the first twelve or thirteen days, in this prone position. We understand it to be claimed that leaving the arm in that position, for that length of time, prevented perfect apposition of the parts of the fractured bone, and was the cause of non-union. Whether this was so, or not, is to be shown from the testimony of experts. There may be cases where, the mode of treatment having been shown, the practical common sense of the jury will enable them to determine that the injury or failure of cure is owing to unskilful or negligent treatment. But this is not such a case; it must depend upon the testimony of the professional witnesses. Now, in such a case, the jury must accept and act upon the testimony of the experts as to the character and effect of the treatment, just as, in any other case, they must accept and act upon the testimony of other witnesses as to facts of a different nature.

There were a large number of surgeons examined as witnesses, five of whom, Drs. Huntington, Hance, Rogers, Simpson and Goodwin, were produced by plaintiff. Of these, Dr. Huntington, speaking, apparently, of the time when he first saw the arm, about March 22nd, says: "I had no idea, at that time, of non-union; saw nothing wrong in the treatment;" and afterwards, "I can't tell what effect prone position would have." In another place, he says: "I don't think the bones could be held in close apposition, with hand down." Dr. Hance says, (testifying from having heard the testimony preceding his,) "In my opinion, I saw no reason for placing the arm in that (prone) position. It would be very difficult, under those circumstances, to put the bones in proper apposition, and maintain them there, because, with palm down, the bones are lying across each other, and it is very difficult to maintain the fragments in proper apposition, from the action of certain muscles." He also explains that it is necessary to preserve the space between the radius and ulna, which he says can only be done with the arm lying on the ulna side, or supine, that is, with the palm upward. He also testified that the splints and treatment by defendants, till they turned the arm up, might preserve the bones somewhat in apposition, but not preserve the space between the bones. On being asked whether the treatment for the first twelve or thirteen days was good or bad, he answered only, "The position of the arm was different from what I should place it in." Further on he says: "I think the position of the arm, as kept and retained for twelve or thirteen days, was prejudicial to the union of the bones;" but he did not explain to what extent it was prejudicial, nor express an opinion that the non-union was owing to it. Although this witness would not say that he thought the treatment for the first twelve or thirteen days was bad surgery, nor that it was the cause of failure to form a definitive union, it is evident that, in his opinion, it was not the most proper treatment, and that it may, at least, have retarded such union; and if his were the only expert testimony, we could not say but that the case should be left to the jury.

Dr. Rogers testified: "If the arm had been lying prone twelve or thirteen days, and was then turned up, I think it would irritate soft parts, and if any callus had formed, would break it up. If no callus had formed, it would do very little harm, save irritation of soft parts. Don't think any one can tell the effect of handling the arm, as testified to, except he had hold of the arm. The only objection I see to the treatment was the prone position of the arm, and I don't know what the peculiar circumstances of the case were."

Dr. Goodwin testified substantially the same as Dr. Rogers, except that he thinks prone position of the arm would not retard union. The substance of Dr. Simpson's testimony was that leaving the arm prone twelve or thirteen days might retard process of repair. By that time, he would suppose, reducing the fracture would produce a little fresh irritation, and retard healing progress.

No one of these witnesses gives it as his opinion that the treatment was not reasonably skilful and diligent, and neither of them...