Ingwersen v. Carr

• Decision Date: 22 September 1917
• Docket Number: No. 30796.,30796.
• Parties: INGWERSEN v. CARR & BRANNON ET AL.
• Court: Iowa Supreme Court

180 Iowa 988

164 N.W. 217

INGWERSEN

v.CARR & BRANNON ET AL.

No. 30796.

Supreme Court of Iowa.

Sept. 22, 1917.

Appeal from District Court, Crawford County; F. M. Powers, Judge.

This is an action at law against defendants as copartners practicing medicine and surgery, for damages for malpractice. Trial to a jury. Verdict and judgment for plaintiff. Defendants appeal. Reversed and remanded.Dutcher, Davis & Hambrecht, of Iowa City, and J. P. Conner, of Denison, for appellants.

Evans & Evans, of Sioux City, and Harding & Kahler, of Denison, for appellee.

PRESTON, J.

The petition alleges: That about July 15, 1912, plaintiff sustained a fracture of his left arm, the humerus being broken at the juncture of the upper and middle thirds, the broken ends of the bone being so separated and not in apposition that the musculospiral nerve was drawn in between said pieces of bone. That defendants were called, and he continued under their treatment until about September 7, 1912, at which time defendants abandoned his case. That plaintiff has lost 17 months' time, has suffered severe pain and mental anguish, has incurred hospital bills and surgeons' fees, his left arm hangs useless at his side, and he is permanently crippled. That defendants were guilty of negligence in the following particulars: (1) In failing to find out that said nerve was caught between the broken ends of the bone before bandaging the fracture on the first trip; (2) in leaving said nerve caught between the broken ends of the bone; (3) in failing to remove the nerve from between the said ends of bone; (4) in failing to bring said ends of bone into direct apposition with each other; (5) in applying a permanent dressing to the fracture before they knew whether or not said nerve was caught between the broken ends. The errors assigned, of which there are 24, relate for the most part to the rulings of the trial court upon objections to testimony, although it is also claimed that the verdict was contrary to instruction 14 given by the court, and that the court erred in refusing an instruction offered by defendants, and that the instruction in regard to hypothetical questions is erroneous. The record is voluminous, and to notice in detail all the assignments would extend the opinion unduly. We shall therefore notice the more important propositions and those which seem to be controlling, and refer to such others as seem to require it more briefly.

A brief statement of the facts which are either established or which the jury could have so found, may be helpful. On July 15, 1912, plaintiff, a farmer, about 61 years of age was plowing corn. One of the horses became frightened and began kicking and started to turn around. Plaintiff had the lines around his back. The exact manner in which plaintiff received his injury is not known, but in some manner he was thrown down and lost consciousness. When he came to he discovered he was injured in his left arm. Dr. Brannon was sent for and arrived at plaintiff's home about 11 o'clock in the forenoon. Upon examination he found plaintiff suffering severe pain, and correctly diagnosed the injury as a fracture of the left humerus near the upper part. The fracture was oblique, and parallel, or substantially so, with the musculospiral groove in which rests the nerve of that name. This nerve supplies all of the extensor muscles of the forearm, wrist, and hand. There is evidence that this nerve comes from the brachial plexus in the armpit, is about the size of a goose quill, and is in a groove which winds partly around the humerus. That a portion of the fracture involved the groove. That this nerve is frequently injured in fracture of the humerus. That injury to that nerve interferes with the action of the muscles it supplies. Upon reaching plaintiff's house, according to plaintiff's testimony, Dr. Brannon told plaintiff and his daughter that the arm was broken. Plaintiff thought not, and showed the doctor how he could extend his fingers. The doctor gave an anesthetic, and to show plaintiff's daughter where the break was, he raised the arm on a level with the shoulder, then straightened out the arm, and applied splints and a bandage. Evidence for defendants tends to show that when plaintiff was put under an anesthetic crepitus was obtained, the fracture reduced, temporary splints applied, and the forearm and hand placed in a sling and the arm incased in a muslin swath extending around plaintiff's body. The next day the temporary splints were replaced with permanent ones. The next day, or the third visit by Dr. Brannon, it was found that there was an absence of sensation in the fingers, and that plaintiff could not move them. September 7th plaintiff went to Dr. Leytze in Sioux City. An X-ray was made to assist in diagnosis. A few days later Dr. Leytze cut down on the fracture and found the musculospiral nerve, and some muscle, between the two ends of bone. The fracture was ununited. He took the nerve out and relieved the pressure, and then fastened the pieces of bone together with an iron plate. He did not suture the nerve, but left it for nature to restore. Dr. Leytze says that the greatest distance between the ends of the bone was one-half inch.

Defendants contend that plaintiff had two injuries--the fractured humerus and an injury to the nerves. There is evidence that the proper treatment of this fracture was the closed, or conservative treatment, which the defendants followed, and that without an open operation there is no way a physician can determine the seat of the injury to the nerve. Injuries to the nerves may show a fracture of the humerus. The symptom of the nerve injury is the resulting paralysis of the muscles, if a motor nerve is injured, and a resulting loss of sensation if a sensory nerve is injured. The seat of the injury to the nerve may be at any place between the origin of the nerve and the spinal nerve and its distal end. Injury to the nerve, causing paralysis or loss of sensation, may be any one of the following: Contusion, laceration, pressure, severing, or stretching.

Defendants say that they treated the fractured humerus and treated the nerve expectantly; that is, they waited to give nature a chance to clear up the paralysis without surgical interference, relying upon nature to clear up the injury to the nerve, and say that if nature does not clear it up, and surgical interference is necessary, the delay of two or three months occasioned by the expectant method does not prejudice a surgical operation. Defendants argue that the case centers about the discovery by Dr. Leytze of the musculospiral nerve between the broken ends of the bone.

I. Plaintiff's theory is that the oblique fracture of the humerus involved the musculospiral groove, containing the nerve, and that when defendant manipulated the arm, and bent it at the point where it was broken, the nerve slipped in and was caught when the two pieces of bone closed up, and that it was negligence to fail to find out that the nerve was caught before he applied the splint and bandages on his first trip, which he should have done by getting crepitus, and that he could have gently manipulated the bone so that he could have felt a grating of the ends together; that this would have proved to him that nothing was between the ends, but that the absence of crepitus, and later the lack of sensation, would have told him the nerve was caught; that even though defendants at first obtained crepitus, the manipulation of the arm in the manner described caused the nerve thereafter to slip in between the ends of the broken bone; that it was negligence to leave the nerve caught when it could have been removed by extension and counter extension. They say, too, it was negligence to not bring the ends of the bone in direct apposition, and that the manipulation necessary to bring the ends directly together would have disclosed the absence of crepitus. Also that defendants were guilty of continuing negligence in the treatment of plaintiff, in failing to find that the nerve was caught by testing plaintiff's ability to use the muscles supplied by this nerve, and as to sensation, or lack of it, in the skin area, and in failing to remove the nerve during the first few days by extension and counter extension, and later by a cutting operation. They contend that defendants failed in all these particulars, and that the nerve was pinched to death between the ends of the bone. Defendants say that this theory is not supported by the evidence, and that other nerves were injured; that Dr. Leytze says that he does not know whether other nerves were injured or not. The defendants contend that the verdict is contrary to instruction No. 14, given by the court, which reads:

“The plaintiff alleges in his petition that the musculospiral nerve was caught between the ends of the broken bone before defendant treated the same, and unless you find by a preponderance of the evidence that the musculospiral nerve was caught between the ends of the broken bone before or at the time the defendant, Brannon, attempted to set and treat same, plaintiff cannot recover.”

[1] As said, defendants contend that the case centers about the discovery by Dr. Leytze in September, of the nerve between the broken ends of the bone, and they say that the fact that the nerve was between the broken fragments of the bone in September, when Dr. Leytze performed the operation, does not tend to prove that it was there two months before when the arm was first dressed by the defendants, and that presumptions do not relate backward, citing Adams v. Junger, 158 Iowa, 449-458, 139 N. W. 1096. But in that case the only proof which plaintiff had was the condition found at the later date, when an X-ray examination was made, and that it was shown by the evidence that this in itself is no proof of the condition at the time the injury was first received. But we think that in the instant case there were other circumstances, some...