Hoyberg v. Henske

Citation55 S.W. 83,153 Mo. 63
PartiesHOYBERG v. HENSKE.
Decision Date05 December 1899
CourtUnited States State Supreme Court of Missouri

Valliant, J., dissenting.

In banc. Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Freddy Hoyberg, by next friend, against Andrew S. Henske. Judgment for plaintiff. Defendant appeals. Affirmed.

A. R. Taylor, for appellant. Lubke & Muench, for respondent.

ROBINSON, J.

This is an action of a minor, suing by his next friend, for alleged malpractice of defendant. The petition charged that the plaintiff, a child of tender years, sustained a fracture of the bone of the left arm above the elbow; that defendant, who held himself out to be a skilled surgeon, was employed to care for and treat plaintiff's broken arm, and, because of the unskillful and negligent manner in which the fracture was reduced, and the arm bandaged, and plaintiff's injury treated by him, the member became affected with gangrene, which caused the dissolution or wasting away of the muscles, nerves, and fiber of the arm, thereby rendering it permanently useless, and damaging plaintiff in the sum of $15,000, for which, with costs, he asks judgment. Suit was originally instituted in the circuit court of the city of St. Louis in May, 1892, where, after a mistrial, the venue was changed to the circuit court of St. Louis county, in which court the cause was tried three times. At the last trial, had in November, 1896, a special jury was called, rendering a verdict for the plaintiff, and assessing his damages at the sum of $5,500, upon which in due time a judgment was rendered. Defendant filed a motion for a new trial and a motion in arrest of judgment, both of which were overruled, whereupon, by proper proceedings, he prosecutes his appeal to this court.

The answer filed in the case before this last hearing contains a general denial of the allegations of the petition, and affirmatively charges plaintiff with contributory negligence, averring that his parents, instead of performing their duty towards the plaintiff, were negligent in caring for and nursing him, and failed to give him the necessary attention which his tender years and condition demanded, but instead permitted him to run out of the house while his broken arm was yet in a sling. The answer further sets out that plaintiff, shortly after the injury occurred, attempted to jump upon a moving street car, and, failing so to do, was violently thrown to the ground, severely shocking the broken arm, and contributing, at least in part, if not wholly causing the injury complained of; all of which new matter was denied generally in plaintiff's reply. The substantial facts shown by the testimony are as follows: That on the 27th day of August, 1891, which was plaintiff's fourth birthday, while playing in a room at the home of his parents, he fell from a lounge, and broke one of the bones of his left arm just above the elbow. That shortly thereafter the defendant was called in to set plaintiff's broken bone, wrapping the arm with absorbent cotton and a muslin bandage, and caused a plaster of Paris cast to be formed around the same, and, after so doing, left the house, and never again called to see his patient, nor did he inquire after his condition. That within two or three days after the broken arm had been bandaged, plaintiff's fingers became greatly swollen and cold, and were turning blue where they protruded from the lower part of the bandage, and he was taken by his parents to the office of defendant, who examined him, and assured the mother that it was customary for swelling to set in in such cases, and that she need not feel alarmed at the condition presented. The next day (Sunday), plaintiff continuing to suffer greatly, he was again taken to defendant's office, who cut off a piece of the plaster of Paris casting, and said the boy would have no further trouble. Instead of improving, plaintiff seemed to grow worse, and on the following Wednesday his mother again took him to defendant's office, where he removed the splints, bathed the injured arm with warm water, wrapped it up in a loose bandage, and said he would put another cast about it in the course of a week. It appears from the evidence that from the time of the injury, which occurred on Thursday, up to the following Wednesday, plaintiff's sufferings were very great, and that he cried continuously; that his parents were required to and did alternately sit up with him every night, and that, when he was taken to defendant's office on the Wednesday morning spoken of, his fingers continued to be swollen, and the bluish color had increased, and that the finger tips were covered with blisters; that when the splint was removed the skin of the forearm below where the injury occurred and where the flesh has subsequently wasted away, hung to the cotton; that a second trip was made to defendant's office on the same day, when he examined the fingers, and again assured the mother that the boy's arm would soon be all right, but gave no directions as to the further care of the injury. On the following Friday the mother again took the boy to defendant's office, when the conditions spoken of still existed in a more pronounced degree, and the defendant advised her to rub the fingers with vaseline salve. On the following Monday she became dissatisfied with the treatment, and took the boy to her regular family physician, who thereafter had charge of the case. The arm festered, and parts of the flesh came out, and did not heal up until about Christmas time, since when he has had no strength in his arm from the elbow down. Prior to the injury spoken of, plaintiff was a healthy child. Plaintiff's mother testified that while the boy's arm was in its injured condition he was never out of the house unless attended. In such statement she was corroborated by a neighbor. And the mother further testified that so close was her attention that it was impossible for the child ever to have rolled over on his arm, or to have injured it in any way. The depositions of a number of physicians in the city of St. Louis, taken on the part of the plaintiff, were read in evidence, eliciting testimony tending to show that the injury for which damages are here sought was caused by the carelessness and negligence of the defendant. These surgeons testified to having examined the plaintiff, and that the dressing of the arm in the manner indicated was very incomplete and unskillful, and that the pressure of the bandages placed on the injured member by defendant was greater at some points than at others, and that the pressure was sufficient to cut off circulation, and cause the appearance of gangrene; that the presence of blisters and discolorations was a sign indicating undue pressure, and that upon the appearance of such conditions proper treatment of the injury would be to immediately remove the bandage, and that, if the presence of gangrene was noticed when it first made its appearance, by proper treatment any serious injury could be avoided; and that the conditions, circumstances, and appearances of plaintiff's fingers and hand were sufficient to apprise a competent physician that mischief was liable to be done; that, although the bandage, when first placed upon an arm under similar conditions, might have been loose enough, because of the swelling under any cases of fracture it is liable to become too tight, which could be noticed by a proper watchfulness, and with due care and attention any resulting injury could be avoided. The defendant, in his behalf, called a number of experts, who made statements tending to show that gangrene in similar cases might occur without cause in the application of the bandage; and that it frequently was brought about, especially where the limb had been injured by a blow over or near the injured part causing a clot of blood to form in the artery, thus shutting off circulation, and known to the medical fraternity by the name of "thrombosis"; and one witness testified that gangrene might be caused by bacteria in the blood, or sugar in the urine; although a portion of these same witnesses testified that gangrene could be caused by outside pressure, and all except one admitted that in hypothetical cases put to them, based upon the facts of this controversy, where the fingers had become cold and discolored, and the patient in great pain, it was the duty of the attending physician to remove the splint at once, and take further steps to arrest the progress of the gangrene. At the close of the testimony the court gave instructions for plaintiff, which told the jury, in effect, that, if they found from the evidence that defendant undertook and assumed to professionally treat the plaintiff for his injury, he was bound to use that degree of skill and learning of those ordinarily engaged in the practice of surgery, and that he was bound to use ordinary care and diligence in the exercise of such skill; and that, if the jury found that he failed to do so, or failed to continue the exercise of such skill and care, and because of the lack thereof the present condition of plaintiff's arm was brought about, they should find for the plaintiff. Plaintiff's third instruction told the jury that in...

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