Hanson v. Thelan

• Decision Date: 05 May 1919
• Parties: HANSON v. THELAN.
• Court: North Dakota Supreme Court

42 N.D. 617

173 N.W. 457

HANSON

v.THELAN.

Supreme Court of North Dakota.

May 5, 1919.

Syllabus by the Court.

A physician owes to his patient the duty to exercise reasonable and ordinary care, diligence, and skill, such as are ordinarily possessed by physicians practicing in similar localities in the same general line of practice.

In an action against a physician for breach of his professional duty to his patient, the patient cannot recover if he has not conformed to all reasonable directions of his physician, or if his conduct has contributed to the injury upon which the action is based.

In an action for malpractice against a physician for breach of his professional duty in treating a fractured limb, where the plaintiff contracted erysipelas as the alleged result of bandaging cloths or bandages and lacing a shoe too tightly upon the limb of the plaintiff, and of the failure to properly attend thereto, it is held under the evidence that the question of defendant's negligence, and of the plaintiff's contributory negligence, were fairly questions for the jury.

Appeal from District Court, McClean County; Nuessle, Judge.

Action by Clifford Hanson, an infant, by Charles Hanson, his guardian ad litem, against W. P. Thelan. Judgment for plaintiff, motion for a judgment non obstante or for a new trial denied, and defendant appeals. Affirmed.Miller, Zuger & Tillotson and Newton, Dullam & Young, all of Bismarck, for appellant.

Fisk & Murphy, of Minot, and McCulloch & McCulloch, of Washburn, for respondent.

BRONSON, J.

This is an action for damages sustained through malpractice. The plaintiff is a minor who, at the time of his injury, in the month of March, 1916, was 16 years old. In the trial court a verdict was returned in favor of the plaintiff for $300. From the judgment entered thereupon, and from the order of the trial court denying a motion for judgment non obstante, or for a new trial, the defendant has appealed.

The substantial facts are as follows:

The infant plaintiff on the 31st day of March, 1916, sustained a fracture of his right leg between the knee and the ankle. Both bones were fractured. The boy was placed in a hospital under the care and in charge of the defendant, a physician and surgeon. There is some testimony in the record to the following effect: The doctor for about three days applied ice packs to reduce the swelling. Then he set the bones and inclosed the leg and foot in a plaster cast. The boy complained of suffering pain, and in about a week the cast was cut open, and the leg then tightly bound and bandaged with cloths. Then, after three weeks, these bandages were taken off, and a board was placed under the leg and foot, they were wrapped in bandages, and a weight and pulley attached, weighing some 10 pounds. The boy remained in this condition for some two weeks, and then these appliances were removed and a shoe laced on tightly, next to the bare foot with some cotton batting inserted, and a weight and pulley attached to the same. Prior to attaching these last appliances, there were sores or bruises on his foot. Some two weeks later, the shoe was removed, after the boy had complained of suffering, and the foot was then black and blue. The physician, some three days thereafter, put some salve on these sores. Dr. Remstad of Bismarck came to Wilton, examined the boy, and stated that erysipelas might be expected. The boy became quite ill. They removed him to the Bismarck Hospital at Bismarck, where erysipelas developed, and where he became very ill for many days. There he remained for seven weeks. The main question in the record is whether the erysipelas developed from the method of treatment accorded by the doctor, and whether the doctor was derelict in his duty in that regard. The appellant in his specifications contends that the evidence is insufficient to warrant the verdict for the reason that there is no direct evidence in the record that the condition of erysipelas was brought upon the plaintiff by any act or omission of the defendant; also, he complains of rulings of the trial court upon...