Hanners v. Salmon

• Citation: 216 Ky. 584
• Parties: Hanners v. Salmon.
• Decision Date: 16 November 1926
• Court: United States State Supreme Court (Kentucky)

216 Ky. 584

Hanners v. Salmon.

Court of Appeals of Kentucky.

Decided November 16, 1926.

1. Physicians and Surgeons. — Evidence held not to justify submission to jury issue of negligence in setting broken leg.

2. Physicians and Surgeons. — Law presumes that physician did his duty and burden is on plaintiff in malpractice suit to prove want of reasonable care and skill.

3. Physicians and Surgeons. — In malpractice suit, gross culpability need not be proved; any failure to exercise proper care or neglect in discharge of duty being sufficient.

4. Physicians and Surgeons. — In malpractice suit, burden is on plaintiff to prove that injury resulted from defendant's want of care or skill, and bare possibility of such result is insufficient.

5. Physicians and Surgeons. — Unsuccessful result of physicians treatment of patient does not shift from latter burden of proof or of going forward in malpractice suit.

6. Negligence. — Where evidence is as consistent with absence as existence of negligence, case should not be left to jury.

7. Physicians and Surgeons. — Gist of malpractice suit is negligence, which is not shown by proof of unsuccessful result as reasonably attributable to other causes.

Appeal from Boyd Circuit Court.

J.S. FULLERTON for appellant.

DYSARD & MILLER for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Affirming.

James A. Hanners on August 2, 1922, received an injury in which his left leg was broken between the knee and hip joint. He was taken to the King's Daughters' Hospital, where his leg was set and treated by Dr. J.M. Salmon. On September 26, 1923, he brought this action against Dr. Salmon, alleging in his petition that eight weeks after he received the injury defendant directed that he be removed from the bed and placed in an invalid chair, and on the third day that this was done his leg was broken again, which was the result of the unskillful conduct of the defendant in handling the case and not in the exercise of that care and skill generally exercised by physicians of ordinary care and skill in the community; that the defendant then reset the leg and treated the injury, but in so doing he did not use ordinary care and skill, and as a result of his failure to use such care and skill the plaintiff's leg was not properly set or cared for and by reason thereof the parts were not properly united; the length of the leg was shortened and plaintiff was made permanently a cripple and suffered intense physical pain and mental anguish.

The allegations of the petition were denied by answer; the case came on for trial before a jury. At the conclusion of the evidence for the plaintiff the court peremptorily instructed the jury to find for the defendant. The plaintiff appeals.

The evidence for the plaintiff as to the second breaking of his leg is in these words:

"The nurse went to take me out of the bed and my limb broke over, it broke so quickly I never knew how it broke. I don't suppose the nurse knew how it broke. I can't say whether the nurse supporting me twisted me or how it is, I just didn't know, it was done so quickly."

This is all the evidence there is as to how this break occurred eight weeks after the first injury, and there is no evidence that any directions which the doctor gave at that time were not the usual or proper instructions.

He also testifies that the doctor was later sent for and reset the leg; took several pictures of it with X-ray and finally discharged him after about thirty days; but that the leg was a half inch shorter than the other leg and was of absolutely no use to him; it was smaller than the other and without any strength and gave him a great deal of pain. He does not complain of anything that was done to his leg before the second break occurred.

He also introduces Dr. A.J. Bryson, who testified that he examined the plaintiff's leg with an X-ray and that that leg was shorter than the other; that the break was an oblique break; that the fractured ends of the bone were in apposition but the parts of the bone were not touching and not in alignment; that it was not a very good result; but he also stated this:

"In spite of all our efforts we are not always able to obtain perfect results in fracture work however hard we attempt."

And he said this occurred in hospitals having all the facilities and in spite of the best care sometimes with such injuries.

Dr. W.T. Flannigan testified, in substance, the same facts as to the nature of the original fracture and that the leg was one-half inch shorter than the other. He said:

"The broken fragments were in apposition against the raw surface, something like this the picture shows; there is some shortening with the proper union and the amount varies. The medullary canal was not connected, but there was some circulation there."

He also testified that bad results are more liable in the case of a person more than fifty years old than...