Howatt v. Cartwright

• Decision Date: 31 January 1924
• Docket Number: 17992.
• Citation: 222 P. 496,128 Wash. 343
• Parties: HOWATT v. CARTWRIGHT.
• Court: Washington Supreme Court

222 P. 496

128 Wash. 343

HOWATT v. CARTWRIGHT.

No. 17992.

Supreme Court of Washington

January 31, 1924

Department 1.

Appeal from Superior Court, Stevens County; Carey, Judge.

Action by Elizabeth J. Howatt against W. A. Cartwright. Judgment or plaintiff, and defendant appeals. Affirmed.

Cannon & McKevitt, of Spokane (Louis A. Conyard, of Chewelah, of counsel), for appellant.

L. B Donley and H. H. McCulloch, both of Colville, and Mark F Mendenhall, of Deer Park, for respondent.

MAIN C.J.

This is an appeal from a verdict of the jury in an action against a physician and surgeon for malpractice. The respondent, a woman about 36 years of age, was thrown from a carriage in the mountains near Tum Tum on August 8, 1921, and received a fracture of the left femur, near the hip. A doctor was called and advised that she be taken to a hospital operated by the appellant. There she was placed in bed, and later an X-ray was taken, and the following day the fluoroscope was used and the limb placed in a Thomas splint. The appellant testified that his examination disclosed a comminuted impacted fracture. The appellant proceeded to use such methods as are known to surgery for the treatment of an impacted fracture. At the end of 10 days, finding that the Thomas splint was occasioning trouble, the splint was removed and a straight extension substituted. This proving unsatisfactory, an angle box was used. The X-ray and the fluoroscope were never again made use of, but the limb was measured every day for three weeks in order to compare it with the right limb. After remaining in the hospital for some time, the respondent was released with the left limb some three-quarters of an inch shorter than the right and with the left foot having an outward rotation of 80 degrees instead of the normal 45, and she found locomotion very difficult. In January, 1922, X-rays were taken by doctors other than the appellant, and thereafter in June, 1922, another operation was performed by one of such doctors for the purpose of curing the excessive outward rotation. This operation consisted of going into the shaft of the femur below where the break occurred and cutting the femur entirely through and turning the limb into a straight line allowing it to heal in that position. She remained in the hospital to recover from this second operation for four months, and was released with the outward rotation largely corrected, but with the limb remaining short; it being impossible to remedy that situation by any means. The placing of the limb in a better position enabled the respondent to better take care of the shortening.

The case has been presented and argued solely upon the theory that the only question in it is that of negligence in the treatment of the fracture, and nowhere in the trial or in the briefs has there been any suggestion that the negligence was solely that of an improper diagnosis.

We recognize the rule laid down so often that a surgeon is not liable merely because of a bad result. Peterson v. Wells, 41 Wash. 693, 84 P. 608. And that he is not responsive in damages in a malpractice suit if the treatment which he employs is that which is recognized and approved by those reasonably skilled in his profession practicing in the same neighborhood and in the same line of practice, and if he administers that treatment with a degree of skill and diligence as such practitioners ordinarily exercise in like cases. Sawdey v. Spokane Falls &amp Northern Railway Co., 30 Wash. 349, 70 P. 972, 94 Am. St. Rep. 880; Wells v. Ferry-Baker Lumber Co., 57 Wash. 658, 107 P. 869, 29 L. R. A. (N. S.) 426; Brydges v. Cunningham, 69 Wash. 8, 124 P. 131; Wharton v. Warner, 75 Wash. 470, 135 P. 235; Lorenz v. Booth, 84 Wash. 550, 147 P. 31; Dahl v. Wagner, 87 Wash. 492, 151 P. 1079; Dishman v. Northern Pacific Beneficial Association, 96 Wash. 182, 164 P. 943; Swanson v. Hood, 99 Wash. 506, 170 P. 135.

We also recognize that it is not a question of fact for the jury, but the court will determine that there is nothing upon which the jury may pass, where reputable physicians and surgeons of equal skill and learning disagree in their opinion as to what the proper treatment should have been, and that the jury will not be allowed to accept one theory to the exclusion of the other. It is enough if the treatment actually employed had the approval of at least a respectable minority of the medical profession and is recognized by such as a proper method. Sawdey v. Spokane Falls & Northern Railway Co.; Wells v. Ferry-Baker Lumber Co.; Wharton v. Warner; Lorenz v. Booth; and Dahl v. Wagner; supra.

As was said in the Dahl Case:

'But we may assume to say, if men of skill and learning express contrary opinions upon admitted facts and such opinions differ, although not preponderating the one way or the other (as they do in this case), that the law will not impose a liability upon a professional man who acts within the reasonable limit of either opinion.

'Nor will a court hold a man guilty of malpractice when doctors disagree as to methods of treatment, although it be suggested that there is a more modern method than the one employed, or the surgeon employs a modern method to the exclusion of one theretofore adopted as a standard.'

But it is the appellant's contention that, applying these rules to the facts here, the case...