Kernodle v. Elder

• Decision Date: 12 May 1909
• Docket Number: Case Number: 2133 OK Ter
• Citation: 1909 OK 112,102 P. 138,23 Okla. 743
• Parties: KERNODLE v. ELDER.
• Court: Oklahoma Supreme Court

1909 OK 112

102 P. 138

23 Okla. 743

KERNODLE v. ELDER.

Case Number: 2133 OK Ter

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. PHYSICIANS AND SURGEONS--Action for Malpractice--Evidence. In an action against a physician for malpractice in the setting and treatment of a fractured limb, where there is no guaranty of cure or contract for extraordinary skill or care, and where the evidence fails to show that the results are not such as usually and ordinarily result in such cases where treated by an ordinarily skillful physician using ordinary care, then there is a failure of proof, and plaintiff is not entitled to recover.

2. APPEAL AND ERROR--Reversal--Dismissal. Where in such a case it is apparent from the record that the claim of plaintiff cannot be sustained, on reversal the court will not remand for new trial, but will direct a dismissal.

Cotteral & Hornor, for plaintiff in error, cited: Champion v. Keith (Okla.) 87 P. 845; Ewing v. Goode, 78 F. 442; Langford v. Jones, 18 Ore. 207; Tomer v Aiken (Iowa) 101 N.W. 768; Bigney v. Fisher (R. I.) 59 Atlantic 72; English v. Free (Pa.) 55 Atlantic 777; DeLong v. DeLaney (Pa.) 55 Atlantic 965; Pepke v. Grace Hospital (Mich.) 90 N.W. 278; Sterne v. Lang (La.) 31 Southern 303; Georgia Ry. Co. v. Ingram (Ga.) 40 S.E. 708; Mt. Adams Ry. Co. v. Laurie, 78 F. 463; Woodward v. Hancock, 52 N.C. 384; Williams v. Pappleton, 3 Ore. 139; Teft v. Wilcox, 6 Kan. 46; Pettigrew v. Lewis, 46 Kan. 78; State v. Housekeeper, 70 Md. 171; Jacksonville St. Ry. v. Chappell, 21 Fla. 175; Getchell v. Hill, 21 Minn. 464; Stevenson v. Gilsthorpe (Mon.) 27 P. 404; Wood v. Barker, 41 Mich. 295; Martin v. Courtney (Minn.) 91 N.W. 487; Willet v. Johnson (Okla.) 76 P. 174.

Error from Probate Court, Logan County; J. C. Strang, Judge.

Action by James B. Elder against J. D. Kernodle. Judgment for plaintiff, and defendant brought error to the Supreme Court of the territory. Case transferred to the Supreme Court of the state, and, on death of plaintiff, the action was revived in the name of Sarah M. Elder, administratrix. Remanded, with instructions.

Cotteral & Hornor, for plaintiff in error

Lowry & Lowry, for defendant in error.

DUNN, J.

¶1 This action was begun by James B. Elder filing his petition in the probate court of Logan county, territory of Oklahoma, on June 5, 1905, wherein he alleged that on or about the first of February, 1905, he fractured the bone of his right hip joint, and that the defendant, holding himself out as a physician and surgeon, and being in the general practice of medicine for hire in Logan county, was employed to set such fractured bone and to attend his said injury. The defendant was charged with having negligently and unskillfully diagnosed the difficulty, in that he dressed and bandaged plaintiff's limb as if the break were between the knee and the hip, and as though the fracture were in the vicinity of the knee, and that by reason of this error on his part the fracture itself was left wholly unattended and uncared for. That this was careless, negligent, and unskillful on the part of defendant, and that by reason thereof plaintiff suffered great pain, and that the broken bone was knit together improperly in such a manner as to leave plaintiff crippled and lame, and to render him a permanent cripple for life. Damages were prayed for in the amount of $ 1,000. To this petition defendant answered by filing a general denial, and on the trial thereof before a jury a verdict for damages in the amount of $ 500 was returned. Judgment was rendered thereon, motion for new trial filed and overruled, and the cause was taken to the Supreme Court of the territory of Oklahoma by petition in error and case-made, and is now before us for our consideration by virtue of our succession to that court, under the terms of the Enabling Act and the Schedule to the Constitution. After the argument and submission of this cause, which stood on the docket of this court as J. D. Kernodle v. James B. Elder, the death of the defendant in error was suggested, and the action has been revived in the name of J. D. Kernodle against Sarah M. Elder, administratrix of the estate of James B. Elder, deceased.

¶2 A motion to dismiss was filed on the grounds that the case-made was not properly a part of the records of this court, and that the motion for new trial was overruled at the request of plaintiff in error, and also the petition in error was not filed within one year. This motion was overruled on the 25th day of June, 1907, by our predecessor, and the ruling will not be reviewed here.

¶3 Plaintiff in error relies upon one proposition to secure reversal, which is, "that the verdict and judgment are not sustained by sufficient evidence." To the issue thus raised, both parties have filed very full briefs, and the court has had the benefit of an able oral argument on the part of counsel, all of which have had our best attention and consideration. The record of the trial as presented here is unusually free of irrelevant or immaterial matter. The issues before the court and the jury was closely adhered to by counsel, and the instructions of the court are exceptionally lucid and comprehensive. All of these things tend to render it easier for us to determine the precise proof in the case, and to ascertain and determine whether or not the verdict rendered was in fact legally sustained by the evidence.

¶4 Let us first notice the law governing the responsibility of physicians and surgeons in cases of this character. The general rule is quoted in volume 1 of Witthaus & Becker's Medical Jurisprudence, Forensic Medicine and Toxicology, at page 30, wherein the authors of this work adopt the rule as laid down in Shearman & Redfield's work on the Law of Negligence, pars. 433-435 (paragraphs 605-607, inclusive [4th Ed.] Shearman & Redfield on Negligence):

"Although a physician or surgeon may doubtless by express contract undertake to perform a cure absolutely, the law will not imply such a contract from the mere employment of a physician. A physician is not an insurer of a cure, and is not to be tried for the result of his remedies. His only contract is to treat the case with reasonable diligence and skill. If more than this is expected, it must be expressly stipulated for. * * * The general rule, therefore, is that a medical man who attends for a fee is liable for such want of ordinary care, diligence, or skill on his part as leads to the injury of his patient. To render him liable, it is not enough that there has been a less degree of skill than some other medical man might have shown, or a less degree of care than even himself might have bestowed; nor is it enough that he himself acknowledged, some degree of want of care; there must have been a want of competent and ordinary result. * * * But a professed physician or surgeon is bound to use not only such skill as he has, but to have a reasonable degree of skill. The law will not countenance quackery; and, although the law does not require the most thorough education or the largest experience, it does require that an uneducated, ignorant man shall not, under the pretense of being a well-qualified physician, attempt recklessly and blindly to administer medicines or perform surgical operations."

¶5 The rule as adopted by the Supreme Court of Oklahoma Territory is announced in the case of Champion v. Kieth, 17 Okla. 204, 87 P. 845, wherein, on the authority of numerous cases cited, Mr. Justice Pancoast, in a well-considered opinion, says of the practicing physician:

"He is never considered as warranting a cure, unless under a special contract for that purpose. His contract, as implied by law, is that he possesses that reasonable degree of learning, skill, and experience which is ordinarily possessed by others of his profession; that he will use reasonable and ordinary care and diligence in the treatment of the case which he undertakes; and that he will use his best judgment in all cases of doubt as to the proper course of treatment. He is not responsible for damages for want of success, unless it is shown to be the result of want of ordinary skill and learning, such as ordinarily possessed by others of his profession, or for want of ordinary care and attention. He is not presumed to engage for extraordinary skill or for extraordinary diligence or care, nor can he be made responsible in damages for errors in judgment, or mere mistake in matters of reasonable doubt or uncertainty."

¶6 In order for plaintiff to recover in this case, it is absolutely essential that two conditions be shown to exist: First, it must appear from the evidence that the plaintiff sustained and suffered legal detriment or damage; and second, such detriment or damage may not be referable solely to the accident with which he met, but it must be shown on his part that considering the accident which he suffered, and his employment of a physician, still he is left in a condition worse than was his right to demand and expect, if his physician was ordinarily skillful and gave him the proper care. In the case at bar plaintiff complains of two things as constituting his detriment or damage: First, that his fractured limb was from an inch to an inch and one-half shorter than it had been; second, that the fractured and injured part was still painful, and that it was necessary, in order to use it, to call to his assistance a crutch or cane. Of course, if plaintiff's limb within a proper time had been restored in the treatment secured to a perfect limb, as it was prior to the time when broken, he could not recover from the physician who treated him, notwithstanding lack of skill shown or negligent care bestowed. So, in our judgment, it would follow if in the consensus of opinion of men schooled and learned in the science of surgery, well acquainted with the facts controlling and surrounding, and results attending, such an accident as this, the limb, after treatment, if no unnecessary pain was...