Hester v. Ford

• Decision Date: 09 October 1930
• Docket Number: 8 Div. 192.
• Citation: 221 Ala. 592,130 So. 203
• Parties: HESTER v. FORD.
• Court: Alabama Supreme Court

130 So. 203

221 Ala. 592

HESTER v. FORD.

8 Div. 192.

Supreme Court of Alabama

October 9, 1930

Appeal from Circuit Court; Franklin County; F. E. St. John, Special Judge.

Action for damages for negligent treatment of an injury, by W. O Hester against L. H. Ford. From a judgment for defendant plaintiff appeals.

Affirmed.

Patient suing surgeon for negligent treatment of injury could not complain that charge enlarged scope of liability to include want of skill.

The following charges were given at defendant's request:

"11. The court charges the jury that if they find from the evidence that the plaintiff (defendant) exercised such reasonable care, skill and diligence commonly possessed and exercised by other physicians and surgeons engaged in the same line of practice in the general neighborhood and that notwithstanding the exercise of such care, skill and diligence the defendant nevertheless failed to properly diagnose the injury to the plaintiff's leg and foot, then they must find for the defendant."

"23. Unless you are reasonably satisfied from the evidence that the defendant failed to exercise reasonable and ordinary care, skill and diligence in the treatment of the plaintiff's broken leg and foot, you cannot find for the plaintiff."

"29. Unless you are reasonably satisfied from the evidence that the defendant was careless in and about the treatment of plaintiff's leg and foot, you cannot find for the plaintiff."

"32. The question submitted to you for determination by you in this case is not as to the nature of the injuries received by the plaintiff and the present condition of the same, but whether the defendant was possessed of reasonable and ordinary skill, and was reasonably and ordinarily diligent in his efforts to diagnose and properly treat the plaintiff's injuries."

H. D. Jones, of Russellville, for appellant.

Stokely, Scrivner, Dominick & Smith, of Birmingham, and J. Foy Guin, of Russellville, for appellee.

BOULDIN J.

Plaintiff, W. O. Hester, on jumping from a runaway wagon, received what is known in surgery as a Pott's fracture at and near the ankle joint.

The defendant, Dr. L. H. Ford, is sued for negligent or unskillful treatment of the injury, to plaintiff's damage.

Count 2 charges that "defendant negligently failed to use in and about the said diagnosis and treatment of plaintiff's injury reasonable care," "skill," or "diligence." (Italics supplied.)

Count 4 charges "defendant failed to use in and about said diagnosis of plaintiff's ankle" such "care," "skill," or "diligence" "as was reasonably necessary to ascertain the character of the injury." (Italics supplied.)

Plea No. 2, styled a plea of contributory negligence, set up a refusal of the patient to submit to the use of an anæsthetic for the better examination and treatment of the injury.

Considerable argument is addressed to alleged error in overruling a demurrer to this plea. The record discloses no such ruling.

The judgment entry shows demurrer sustained to plea No. 2, an amended plea No. 2 interposed, and demurrer thereto overruled. This amended plea does not appear in the record. The substance and effect of same appears only in the oral charge of the court. The ruling on demurrer thereto cannot be reviewed.

It appears Dr. Ford was called to treat the injury at a point some miles out of Russellville. No X-ray being available and Mr. Hester preferring not to take an anæsthetic, if not refusing so to do, morphine was administered, and the doctor proceeded to examine the injury with the aid of sight and touch. He discovered a fracture of the tibia at the joint, reset the same, adjusted the dislocation, and applied splints. Several weeks later, after Mr. Hester was out, it was discovered by the aid of the X-ray that the fibula was fractured some two or more inches above the joint, and the parts had overlapped. A secondary operation was recommended, which plaintiff had performed in Memphis, Tenn., with helpful results.

The evidence made a jury question on amended plea 2 as outlined in the charge of the court. Whether the anæsthetic would have so relaxed the swollen muscles that the additional fracture would have been found, whether the doctor, under the conditions, was negligent in proceeding as he did, and whether in view of apparent results he was negligent in not following up with an X-ray at an earlier date, were all jury questions.

The testimony of Mr. Hester touching a statement by Dr. Ford, viz. "He asked me what it would take to satisfy me," was properly excluded. It imports no more than an implied offer of settlement by way of compromise, and is privileged under the law. Hughes v. Daniel, 187 Ala. 41, 65 So. 518.

The question, "Did he admit it was his fault?" was disallowed without error as leading. It should have called for what the doctor said, not the wintess' version of its effect.

The question, "Will you take off the other shoe in order that the jury may see what a normal foot is like?" assumes one foot was normal and the other abnormal. It does not appear that an inspection of the other foot would have shed any light on the issues.

There was no...