James v. Grigsby

• Decision Date: 10 November 1923
• Docket Number: 24,637
• Citation: 114 Kan. 627,220 P. 267
• Parties: J. B. JAMES, Appellee, v. C. E. GRIGSBY, Appellant
• Court: Kansas Supreme Court

220 P. 267

114 Kan. 627

J. B. JAMES, Appellee, v. C. E. GRIGSBY, Appellant

No. 24,637

Supreme Court of Kansas

November 10, 1923

Decided July, 1923.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

PHYSICIAN AND SURGEON--Malpractice--Negligence--Damages--Evidence--Instructions. In an action for damages for malpractice, the evidence examined, and held sufficient to go to the jury; the instructions examined and held not so erroneous as to require a reversal.

Chester Stevens, of Independence, for the appellant.

W. R Hobbs, S. H. Piper, and W. B. Grant, all of Independence, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages for malpractice. It was tried to a jury which made findings of fact and returned a general verdict for plaintiff. The defendant has appealed.

Appellant's main contention is that the court should have sustained his demurrer to the evidence which makes it necessary for us to examine the evidence offered by plaintiff in chief.

The plaintiff, a man fifty-eight years old, was living on a farm with his mother, eighty-one years of age. On May 31, 1920, he met with an accident in which the femur of his left leg was broken about three inches above the knee. It was an oblique fracture. The defendant was called to treat plaintiff and undertook to do so. He reached the home of plaintiff about three-quarters of an hour after the accident and with the aid of two neighbors set the broken bone. He made two splints out of boards, wrapped them with cotton, put one on the outside of the leg and one on the inside and bound them with tape. He wanted to take plaintiff to the hospital but plaintiff did not want to go. He put plaintiff to bed and hung a weight to his foot. On June 2 defendant visited plaintiff and again urged him to go to the hospital; said, "You'll be down there where I can take care of you a good deal better. You'll have good treatment there," and plaintiff consented. Defendant had an ambulance take him to the hospital, a distance of about four and a half miles over roads that were hilly. At the hospital he was put to bed in a room where there were three other patients, one of whom, Davy Schile, was being treated by defendant for a broken leg. The defendant came into the room soon after the plaintiff reached the hospital and put a weight--a sack of sand--on his foot but made no examination of the fractured leg and did nothing for it, though plaintiff was suffering pain. Defendant saw plaintiff every two or three days while he was at the hospital but made no examination of his leg and did nothing for it on any of these occasions. On one occasion, while he was at the hospital, the defendant said he had taken an X-ray picture of Davy Schile's leg (there was an X-ray machine in the hospital) and plaintiff asked defendant to take an X-ray picture of his leg and defendant replied, "We don't need an X-ray picture of your leg. We know your leg is all right." Plaintiff remained in the hospital until June 27, at which time he wanted to go home and defendant consented. During that time the splints which had been placed on his leg at first had never been removed or adjusted. On that day defendant removed the splints and bandages, examined the leg and pronounced it all right, bathed it in alcohol and put the splints back on. The leg felt better to plaintiff and he thought it was all right and told the defendant so. At that time he couldn't stand up. He was taken home in an automobile, carried into the house and put to bed, where he was confined for several weeks. On July 15 defendant visited him, removed the bandages and examined the leg. It looked crooked and plaintiff spoke to defendant about it and defendant said, "Yes, it is a little bit, but that little bit won't hurt you." Defendant put a plaster of Paris cast on the leg and told plaintiff he was going away for a month on a vacation; that the plaster of Paris cast might hurt him and if it did to take his knife and cut it off, "You know how I did Davy's leg," and put the splints back on. The plaster of Paris cast did hurt plaintiff and after leaving it on about eight days he cut it off and he and his sister put the splints back on. Plaintiff's sister took him in a buggy to see defendant at his office after his return from his vacation and talked with him about his leg. Defendant did nothing for his leg at that time, but said, "Now, your leg is all right. All you need is just a little time." Plaintiff went with Fred George to defendant's office again in about two weeks and told defendant that he didn't think his leg was all right; that he thought something was wrong with it. Defendant came up and grabbed hold of the leg and said he couldn't see anything wrong with it. "It is all right. You just don't get in too big a hurry." That was about three and a half months after the accident. He saw the doctor at his office about two weeks afterward. He was then using crutches. The doctor again told him his leg was all right; that he was in too big a hurry and that he should go home and be still and that he would get all right. At that time the doctor examined his leg but did not give any prescription. He saw the doctor again in January, 1921, at his office and he told the doctor that he could rent a little place if he was going to be able to do anything. The doctor told him that was the best thing that he could do; that he could not plow all day, of course, that he would have to stop and rest, but that he could do "right smart." Plaintiff rented the place but was unable to do any work. When he tried to walk on his leg it would not hold him up, was not strong enough. The leg was not straight. His knee would fly out of place, first one way and then the other. He had not been able to get around without crutches. He had suffered pain more or less since it was broken. He tried to hoe in the garden but had to hop around on one foot.

Dr. W. C. Chaney, a physician who had been engaged in the practice of medicine at Independence for more than nineteen years and for the last three and one-half years had been specializing in X-ray, on August 17, 1921, took two X-ray pictures of plaintiff's left femur, one a front view, the other a side view. The pictures were offered in evidence. These showed that the break was a long, diagonal break; that the ends of the bone overlapped something over an inch,--an inch and one-eighth to an inch and a quarter--and that the leg was not straight, being out of alignment ten to twelve degrees. He identified Figure 224 in Gray's Anatomy, a standard authority, as a fair likeness of the femur in its natural state and this was offered in evidence. The doctor testified that the X-ray was used in diagnosing many conditions and is used and perhaps has been used longer in diagnosing fractures or bone conditions. Under general conditions when a patient who has sustained a fractured bone arrives at the hospital it would be a proper practice to make an X-ray examination. "Of course, it was always the proper thing to take an X-ray, of course. I think that a doctor would want to take an X-ray of it if the hospital was equipped with an X-ray machine." That the purpose in taking an X-ray of the fracture is to see that the bone is properly set in good apposition and good alignment. He was asked: "Q. Well, would you call it negligent practice if he did not take an X-ray picture? A. Have to know about the circumstances. Don't think any doctor could give a thorough answer to that question unless he knew something of the circumstances of the case." He then testified that if a man's leg was broken and he was his patient and brought to a hospital that was equipped with an X-ray machine, his practice would be to take the X-ray of it from the two angles, if it was possible at all to get it, and that he would consider that the proper practice in Montgomery county, and further said that wooden splints or plaster of Paris casts would not interfere with the taking of the photograph, "and we could still get an outline of the bone very clearly" even with some metal splints. That in his practice he had sometimes got good results and at times had poor results, which he regarded as unavoidable. That in a man fifty-eight or nine years of age the fracture would heal much slower than in a younger person, but that they can get a good union and do in a majority of cases. There is frequently a shortening of the length of the leg, but not always, and as a rule in older people the breaking of the femur results in a slight shortening. It would not be unusual for a man, say fifty-eight years of age, having an oblique fracture of the femur, to have a shortening of the leg anywhere from an inch to an inch and a quarter, and that sometimes results when a patient has had good treatment. That shortening is the result of the muscular contraction of the large muscles that extend from the pelvic region to the knee and around to and below the knee. He had not measured the plaintiff's leg to determine how much, if any, shortening there was. He further testified that it was possible to set an oblique fracture and not have any shortening at all; that the open method of treating broken bones, in which they open down to the bone, lay back the periosteum, bring the bones together and fasten them with bone splints, or otherwise, is called "bone surgery" and of late years it has been the usual practice, after taking an X-ray of an oblique fracture, to treat them by the open method and fasten the ends together by some of the means which he described.

Dr. W. J. Gier, a physician of Independence, who had been in the practice of medicine for five years in that county, testified as follows:

"Q. Now, Doctor, if a man...