Gores v. Graff

• Citation: 77 Wis. 174,46 N.W. 48
• Parties: GORES v. GRAFF.
• Decision Date: 21 June 1890
• Court: United States State Supreme Court of Wisconsin

77 Wis. 174

46 N.W. 48

GORES

v.GRAFF.

Supreme Court of Wisconsin.

June 21, 1890.

Appeal from circuit court, Eau Claire county.

The defendant is a physician and surgeon, and was employed to treat a wound received by the plaintiff's intestate, Hakon Oleson, who afterwards died from the effects thereof. This action was brought under section 4255, Rev. St., to recover damages for the death of Oleson, alleged to have been caused by the unskillful and negligent treatment of the wound by the defendant. On March 12, 1887, the plaintiff's intestate was engaged with another in splitting a log, when the axe of his fellow-workman flew off the handle, and the edge of the axe struck Oleson a little above the right knee, inflicting a wound from one and a half to two inches in length. The testimony tends to show that the axe penetrated the knee-joint through the membranes covering it. Oleson resided in Eau Claire, and when injured was at work in the woods some distance from his home. His fellow-workman inserted chewed tobacco quids in the wound, bound it up, and took him in a sleigh to Arcadia, the nearest railroad point, about 18 miles distant. He was then brought on a train to Eau Claire, and taken to his home, reaching there the next morning. Whether the tobacco quids were removed before he left the woods, or remained in the wound until he reached his home, and whether the wound was bandaged with filthy or clean cloths, are disputed questions in the case. On the arrival of Oleson at his home, Dr. Graff, the defendant, was called to treat him, and first saw him towards noon of that day. He applied what is called the “antiseptic treatment,” which it is not denied was correct practice, and dressed the wound properly. He called to see Oleson the next day, but did not remove the bandages. He next visited him March 19th, removed the bandages, and examined and dressed the wound. Up to this time it is not seriously controverted that the treatment was in strict accordance with the approved rules of surgery. He informed Oleson's wife that he would not call again until March 27th, unless Oleson grew worse, in which case he left a request that he be sent for. The wound commenced growing worse soon after March 19th, and developed much inflammation, causing great pain. The testimony tends to show that Dr. Graff was sent for March 25th, and informed of Oleson's condition, but did not visit him again until March 27th. He then found Oleson in a very bad condition. The limb was much swollen, disharging large quantities of pus, and the patient was suffering intense pain. He again examined and dressed the wound, putting in proper tubes for the discharge of the pus. The testimony tends to show that on this occasion he flexed the limb with violence, causing the patient intense pain. He visited the patient, successively, on March 31st and April 2d, 5th, and 8th, pursuing the same general treatment. On April 9th Dr. Christensen was called in. He removed the bandages, examined the limb somewhat, and then restored the bandages, but did nothing further. He declined to take the case until he could advise with another physician, and until Dr. Graff should be dismissed. Dr. Graff was thereupon dismissed, and on the next day Dr. Christensen, accompanied by Dr. Day, made an examination of the wound. They became satisfied that in order to save Oleson's life it would be necessary to amputate the limb, but that such was his condition this could not be done without fatal results, until he could be strengthened. Dr. Christensen thereupon took charge of him, and by tonic treatment succeeded in improving his condition, so that on April 29th the limb was successfully amputated without any very serious shock to the patient. From that time until his death he was under the care of Dr. Pinkerton, the city and county physician. He continued to improve for several weeks after the amputation, and Dr. Pinkerton thought he might recover. Then his symptoms took an unfavorable turn, and he continued to grow worse, until he died from exhaustion on August 12, 1887. A trial of the action resulted in a verdict for the plaintiff, assessing damages at $2,500. A motion for a new trial was denied. The case is further stated in the opinion. Judgment was rendered pursuant to the verdict. The defendant appeals from such judgment.W. F. Bailey, for appellant.

T. F. Frawley, for respondent.

LYON, J.

We have reached the conclusion that the judgment in this case must be reversed for material errors in the instructions given by the learned circuit judge to the jury. But, before proceeding to the consideration of such instructions, it seems necessary to make a few general observations upon the testimony in the case bearing upon them. We do not say that the testimony is insufficient to support the judgment, but should say that, after a most careful consideration thereof, we are impressed with the thought, or at least the fear, that too much of mere conjecture has entered into the verdict. Undoubtedly the testimony is sufficient to support a finding that by his failure to visit Oleson more frequently Dr. Graff failed to perform his duty to his patient. In view of the result, Dr. Graff frankly admits that it would have been better had he seen the patient at shorter intervals. Then the manner in which he treated the limb on March 27th, if such treatment is correctly stated by plaintiff's witnesses, was certainly bad surgery, and may have led to serious consequences. However, if Dr. Graff's testimony on that subject be taken as true,--if he flexed the limb carefully and gently for the purpose of causing the pus to discharge from the wound,--the medical testimony satisfactorily shows that it was proper practice. But it was competent for the jury to...