O'Grady v. Cadwallader
| Decision Date | 18 March 1918 |
| Docket Number | 31639 |
| Citation | 166 N.W. 755,183 Iowa 178 |
| Parties | HARRY O'GRADY, Appellant, v. JOSEPH M. CADWALLADER, Appellee |
| Court | Iowa Supreme Court |
Appeal from Osceola District Court.--W. D. BOIES, Judge.
ACTION to recover damages for alleged negligence in setting a broken arm. Judgment for the defendant. Plaintiff appeals.
Affirmed.
C. A Babcock and Clark & Dwinell, for appellant.
W. C Garberson and Dutcher & Davis, for appellee.
Plaintiff brings this action to recover damages for injuries alleged to have been sustained by him because of the unskillful and negligent manner in which the defendant, a practicing physician, reduced and treated a certain fracture of the radius of plaintiff's left arm. It is claimed in the petition that, on the 4th day of June, 1914, plaintiff was kicked by a horse, and the radius in his left forearm broken about midway between the elbow and the wrist; that he applied to the defendant for treatment, and employed him as a physician and surgeon to treat the injury so received; that the defendant undertook to do so, but did not reduce the fracture, but carelessly and negligently treated and attended the same; that, in pretending to reduce the fracture, defendant at first used pasteboard splints, and afterwards used inadequate and improper splints, in the way of pieces of shingle; that the pasteboard and shingle splints did not keep the broken ends of the radius in proper place; that plaintiff submitted himself to the treatment of the defendant for the injury until about the middle of September, when plaintiff concluded that defendant had not properly reduced the fracture, basing this conclusion on the fact that plaintiff could not at that time rotate his forearm, hand, and wrist; that thereafter, on the 23d day of September, plaintiff consulted a physician and surgeon in Sioux City, one Dr. Cremin, who examined the forearm, and found that the same could not be rotated, and that a surgical operation was necessary to put the same in as good condition as possible; that, on the 26th day of September, Dr. Cremin performed an operation on the arm, and found that the radius had been fractured, as stated, and that, at and near the fracture, the radius had adhered and grown fast to the ulna; that the operation consisted in separating the radius and ulna, thus restoring rotation; that an incision was made in plaintiff's arm for that purpose; that the condition in which the arm was found was due to the careless, negligent and unskillful act of the defendant in reducing said fracture, and his carelessness and negligence in not putting and joining together the broken ends of the radius, and in not putting the ends in alignment or proper apposition, and in not applying proper bandages and splints and appliances to keep the broken ends in alignment or proper apposition, thus not preventing the radius from adhering or growing fast to the ulna. The answer was a general denial. The burden of proof rested upon the plaintiff. The allegation of negligence upon which recovery is sought is: First, that the defendant was negligent in not reducing the fracture properly; second, that the defendant was negligent in using only pasteboard splints at first, and afterwards inadequate and improper splints, and in not applying proper bandages and appliances to keep the broken ends in alignment or proper apposition.
There is no direct evidence in this record showing that the fracture was not properly reduced. There is no direct evidence that the broken parts were not put in proper apposition. There is no direct evidence that the splints and bandages used for the purpose of keeping the broken parts in apposition and the bone in proper alignment were not the appliances that are usually and ordinarily used by physicians and surgeons in the treatment of fractures such as this. A physician is held to the exercise of the skill and learning of the profession generally in the community in which he practices.
This is purely a fact case, with the burden resting on the plaintiff. At the conclusion of the testimony, the court directed a verdict for the defendant. Plaintiff appeals.
As we have said before, there is no direct evidence to support the allegations made in plaintiff's petition, that the fracture was not properly reduced, or that the splints and bandages used for the purpose of keeping the broken bones in apposition or the bones in alignment were not the splints and bandages usually and ordinarily used by physicians in treating injuries of this kind. No witness was called, expert or otherwise, to establish either one of these facts charged by the plaintiff. The conclusion, then, that the defendant failed in the full discharge of his duty, to the injury of the plaintiff, must be gathered deductively from the matters to which we will call attention later in this opinion.
It is fundamental that no negligence, if any exists, can be considered by the jury, in arriving at the verdict, except that negligence which is charged in the petition, and on which the plaintiff bottoms his right to recover; and but two acts of negligence are charged: First, nonprofessional and improper reduction of fracture; second, improper appliances used to keep the fracture in position. Any other acts, or omission to act, on the part of the defendant in the treatment of this injury, whether negligent or otherwise, which do not involve these two charges of negligence, afford no basis for recovery.
The evidence discloses the following: On the morning of June 4, 1914, plaintiff was kicked by a horse; the kick broke his left arm; he went to Ashton and consulted the defendant; he reached defendant's office about 8 o'clock, and found defendant in his office. He told the doctor he thought he had broken his arm, and asked the doctor to set it and attend to it. The doctor put pasteboard splints on it and put it in a sling, a splint on the inside and one on the outside, opposite each other. Then he bandaged it, and made a cloth sling in which to carry it. Plaintiff was at the doctor's office about half an hour; stayed around town awhile. He was told by the doctor to come back; that he might see how everything was. The doctor told him to come back the next day. Plaintiff came back the next day, on the 5th of June, in the afternoon. The doctor took the bandages off and put more on, but did not change the splints. On his return home, on the afternoon of that day, a cyclone passed through the county, and the buggy in which plaintiff was riding was tipped over. He was thrown into the water. This was about five or six in the afternoon. It was raining hard. When he reached his home that night, the splints were all wet and soaked with water. The home folks unwrapped the arm and took off the wet bandages and splints and bandaged the arm up again. When he tipped over, he fell into the water, with others who were riding in the buggy, among whom was a young girl, about nine years of age. He carried the girl out of the water. He said he felt no bad effects from this. The next day, however, about noon, he went to the doctor's office. He reached there about one o'clock. The splints were then taken off by the doctor, and the arm was rebandaged, the doctor using wire net, or some other appliance, and placing wooden splints on the arm, shaped to his arm. The doctor bandaged the arm up, and told him to come back in a day or two. He went back in a day or two. Thereafter, he came back to the doctor's office two or three times a week, he says. In about a week after that, on June 12, 1914, he went to Sioux City, and remained until the 22d of June. The arm had no attention while he was in Sioux City. The splints were finally taken off some time in July. The witness was unable to say what time in July, but thinks not later than the 15th of July.
Plaintiff testifies that he had pain in his arm while the splints were on; that he had also pain in his shoulder and his wrist; that he told the doctor about these pains; that the doctor told him he would get all right,--that that was the case with a broken bone; that, when the splints were taken off in July, he could not rotate his arm, could not turn it over; that it hurt him when he tried to turn it over; that defendant told him to go ahead and do a little work, and it would get all right. The doctor never put any more splints on, but told him not to try to lift too much, but to be careful with it. Some time after, the exact date of which is not shown in this record, the plaintiff met the doctor in a hardware store. At that time, some talk was had between them touching an X-ray examination. It was, however, the last day that plaintiff saw the doctor. He testifies:
These photographs were introduced in evidence. Later in his testimony, he excused his not having an X-ray examination sooner, on the ground that the defendant told him it would be all right, and that he didn't care to incur the expense of an X-ray examination.
This is all the testimony offered in the record showing the treatment administered by the defendant.
Experts were, however, called by the plaintiff,--among them, Dr Cremin. This doctor testified that he operated on the plaintiff on the 26th day of September; that h...
To continue reading
Request your trial