Holton v. Burton
Decision Date | 04 December 1928 |
Citation | 197 Wis. 405,222 N.W. 225 |
Parties | HOLTON v. BURTON. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge.
Action by George Holton against James J. Burton. Judgment for defendant, and plaintiff appeals. Affirmed.--[By Editorial Staff.]
This malpractice case was commenced December 23, 1925, for damages for the alleged failure by defendant, a surgeon, to properly treat plaintiff between January 4 and 24, 1924. Trial November, 1927. The court changed an answer in the special verdict and directed judgment in defendant's favor. From such judgment entered January 14, 1928, plaintiff appeals.
On New Year's Eve, 1924, at his home plaintiff dislocated his right shoulder, and the defendant, a physician and surgeon, was called immediately and adjusted the arm back in its socket and secured plaintiff's arm to his body by bandages. Defendant made subsequent calls on plaintiff, and on the fourth or fifth of such visits, about January 5th, found that the arm had slipped partly out of the socket, and again reduced the dislocation. From that point on there is dispute in the testimony as to the manner in which the arm was then and thereafter treated; whether or not the defendant provided for or advised the placing of the arm in varying positions; and whether or not bandages or a sling were used to support the arm.
Defendant visited plaintiff on January 7th, 11th, 18th, and 22d, and on the 22d found a condition indicating to him that the arm might be again out of its proper position in the socket. After a discussion concerning the advisability of an X-ray examination, and examination and treatment by some other surgeon, plaintiff was taken to a hospital, the arm X-rayed, and he was taken to the operating room, the arm again reset and tightly bandaged across his chest. This operation was performed by Dr. M. L. Henderson upon plaintiff's insistence that some one else than the defendant should then and thereafter treat the arm.
On February 1st or 2d plaintiff returned home from the hospital, and thereafter, for about two weeks, received daily treatment from a masseur in accordance with defendant's suggestion. Defendant made several calls ending February 9th. Following that two physicians were consulted by plaintiff, but neither was called to testify. The arm was painful for at least a year after the accident. Dr. Powers operated on plaintiff at a hospital in June, 1924. At that time, under anesthesia, the muscles were forcibly stretched and the hand and fingers extended; and a cast applied to the hand and forearm with the arm elevated. The cast was removed at the end of six weeks and a specially made brace applied. For some time thereafter, every other day, active and passive motion was applied to re-establish the action of the muscles. Dr. Powers continued the care of him until December 14, 1925, and made an examination of the arm June 7, 1927, and was examined as plaintiff's witness on the trial; and testified as to the condition he found at the time of the operation in June, 1924, and subsequently, and this testimony is not disputed. He found the muscles of the shoulder, upper arm, forearm, and hand greatly atrophied and shrunken up, the skin over the hands and fingers bluish and discolored, the hand and fingers were flexed, and there was inability to raise the arm from the side at the shoulder or to extend it at the elbow making an almost complete lack of motion of the right arm and hand, with a definite weakening of the extensor muscles of the hand and forearm. At the examination June 7, 1927, the plaintiff could bring the arm up to a right angle with 110 degrees of motion as against the normal of 180. The flexion of the wrist was possible to 70 degrees against a normal of 80 to 85. The thumb and two fingers were normal and two considerably limited. All this resulting in about a 40 per cent. disability of the entire arm with some muscular atrophy. The result of the examination was a finding by the witness that there was a nerve involvement, for which, under the history of the case, the persisting dislocation would have been an adequate cause; and he said that the original dislocation forward and downward might possibly have involved the nerve. After a statement by plaintiff's counsel, based upon plaintiff's theory of the facts, that the arm was out of place on January 5th and then replaced and not in bandages between the 5th and 23d, and that there were no bandages or supporting tapes after the 5th of January until the operation of January 23d and with increasing pain and swelling after January 5th, the witness stated that he had no opinion to a reasonable certainty whether the injury causing the results above stated was occasioned by the original dislocation or by subsequent pressure for some time on the nerves. He testified that the cause of the disability he found was the direct result of an injury to the brachial plexus; that a constant pressure for a period of time on the brachial plexus would bring about the nerve involvement he found.
On cross-examination he testified that it sometimes happens, where there is a downward dislocation of the humerus (this being a description of the original injury), that injuries are then caused to the brachial plexus nerve, and that it is possible that even where a reduction is made within a reasonable time there will be trouble and for a long time with the nerves if originally injured.
Dr. Nichols, a physician and surgeon, examined plaintiff's arm in May, 1924, and found a condition substantially as outlined in Dr. Powers' testimony. Upon a hypothetical question to him by plaintiff's counsel which included the statement that no tapes or bandages were placed by the defendant on plaintiff's arm after the second reduction on January 5th, of continual intense pain and swelling, this being plaintiff's version of the facts, the doctor stated as his opinion that the condition he found was produced by pressure extending for a considerable period of time to branches of the brachial plexus nerve. He also stated that the greatest importance of immobilizing the arm and forearm after such a dislocation is to prevent or materially limit the range of motion and to permit the capsule or head of the humerus to immobilize. On cross-examination this witness testified, in effect, that an immediate reduction of a downward dislocation does not result in a long persisting injury to the nerves (the only medical testimony to that effect), and that a dislocation in itself would not necessarily cause injury to the nerves. Also that pressure on the nerve trunks for a period of three days (referring evidently to defendant's contention that between the 18th and 22d of January there was a renewed dislocation) would cause trouble.
Dr. Henderson, who was called by defendant as a consultant, and who performed the operation of resetting the arm January 24th at plaintiff's instance, was called as plaintiff's witness, and testified: That the proper procedure after reduction of a dislocated shoulder is to reduce it to immobility and so that supporting bandages that will hold the arm and side and shoulder in one position are proper. That at the time of the operation by him there was a swelling present indicating interference with the circulation, and there was also shown some nerve impairment, and that the capsule at the head of the humerus would be torn through by the humerus slipping out. On cross-examination he...
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