Kiekhoefer v. Hidershide

• Decision Date: 18 February 1902
• Citation: 113 Wis. 280,89 N.W. 189
• Parties: KIEKHOEFER v. HIDERSHIDE.
• Court: Wisconsin Supreme Court

113 Wis. 280

89 N.W. 189

KIEKHOEFER

v.HIDERSHIDE.

Supreme Court of Wisconsin.

Feb. 18, 1902.

Appeal from circuit court, Trempealeau county; J. J. Fruit, Judge.

Action by Tina Kiekhoefer against George N. Hidershide. Judgment for plaintiff. Defendant appeals. Affirmed.

The facts of this case, except as more particularly stated in the following opinion, are set forth in the report of its former appeal. 104 Wis. 126, 80 N. W. 62. Upon a second trial the court ruled that there was no evidence to support defendant's responsibility for the injuries to the plaintiff's shoulder, and instructed the jury to disregard such injuries. He further ruled that there was evidence tending to show improper and negligent treatment, and that the injuries to the wrist at place of fracture and to the hand were attributable thereto. A general verdict of $1,200 being returned, judgment was entered in favor of the plaintiff for that amount, from which the defendant appeals.John C. Graveney and Brown, Abbott & Somsen, for appellant.

Higbee & Bunge, for respondent.

DODGE, J.

The first and most important question, the answer to which will control decision upon several assignments of error, is whether or not, upon the second trial, there was new evidence with reference to defendant's treatment of plaintiff's wrist, so as to take the case out of the rule that the decision on the former appeal is res adjudicata at all future stages of the case, and whether, in the light of such new evidence, it might reasonably be concluded by a jury that there was maltreatment, and that the injuries to the wrist resulted therefrom. Upon the former trial it was testified by defendant and Dr. Rigrish that the fragments of the broken radius were brought into apposition, and so retained until they healed, save for a very slight displacement whereby the lower fragment had a dorsal protrusion of about one-eighth of an inch above the upper fragment, and an inward projection of about one-sixteenth of an inch toward the ulna. This testimony was then undisputed, the only other evidence on the subject being that of Dr. Gunderson, that he found “some displacement,” and that he also found something of the malformation of the wrist characteristic of the Colles fracture, known as the “silver-fork” or “bayonet” deformity. It was proved, practically without dispute, that it was consistent with due skill and care to allow the fracture to heal with no more displacement than this, rather than rebreak the bones to place them in perfect apposition. Upon the trial now under consideration Dr. Gunderson testified that in his opinion, formed at the time of examination, the backward displacement of the lower fragment was a half an inch, so that the ends of the fragments were practically not in apposition at all, merely the lower or front edge of one fragment touching or overriding the upper or backward edge of the other fragment. He also testified, after knowing all the symptoms suggestive of neuritis, and other causes for the condition which he examined, that he was still, at the time of the last trial, of that opinion. He qualified this statement by the concession that he could not say this with any positiveness from an examination of the bones, for they were so grown into a mass of callus that it was impossible to distinguish bones from callus, or to tell their exact position. He also testified, with enough definiteness to distinguish it from his former testimony, that the silver-fork deformity of the wrist was “marked,” and that it could be due only to displacement of the bones, and another witness, called by the defendant, testified for the first time on this trial that from such displacement as that described by the defendant the deformity could not be “pronounced.” It was in evidence on both trials that after six weeks any definite estimate of so trifling displacement as that described by defendant and Rigrish would be impossible. Without going further into the testimony, we are satisfied that this evidence, produced for the first time on the second trial, of an amount of displacement much greater than that testified to by the defendant, albeit only an opinion, was sufficient to carry to the jury the question, not in dispute upon the former trial, whether defendant's statement of the amount of displacement which he allowed to heal up was true. It thus appears that upon the trial now under review there was the new element, consisting in the testimony of Gunderson that in his opinion the displacement of fractured fragments must have been much greater than one-eighth inch, and that the silver-fork deformity was greater in degree than could result from so slight displacement. We therefore are not precluded by the former decision from considering whether there was presented a jury issue as to negligence of defendant in treating the fracture, nor as to the effect of such negligence in producing the whole or any part of the ultimate injury to plaintiff's wrist.

The first question in such consideration is whether defendant allowed the bones to reunite without substantially reducing the fracture; that is, with a displacement of nearly or quite their entire thickness. This was considered conclusively negatived on the former appeal by the direct testimony of defendant and Dr. Rigrish, which, while its certainty was questioned, was not disputed by any other testimony nor by any facts or symptoms not easily accounted for by some other probable cause. On the last trial that testimony was antagonized by that of Gunderson, already mentioned. Thereupon the necessary uncertainty of any estimate by Rigrish, and even by defendant, at the time bandages were removed becomes important, as also the evident thoroughness of Dr. Gunderson's examination, the wide extent of his experience, and his evident fairness as a witness,--nay, his obvious anxiety to state everything as favorably to defendant as truth would permit. He was not testifying merely to an opinion upon a hypothetical situation, but to facts which he observed, and to his deductions from those facts in the light of his professional learning and experience. In this situation we do not feel able to say that reasonable minds might not differ as to the extent of displacement permitted by defendant; hence it was properly one for the jury. If the fact was as plaintiff claims and Dr. Gunderson opines, the evidence fails very far of conclusively acquitting defendant of professional negligence. Witnesses testify that a half-inch displacement would be easily discoverable to a surgeon; that to permit it, without resetting, would be to fail almost absolutely of the duty assumed. It would not be a reduction of the fracture, and would be inconsistent with what surgeons call good functional results. There was, beyond doubt, enough to carry to the jury the question of defendant's negligence, if they decided against him on the quantum of displacement.

The next question in order is whether there is evidence to connect the condition of plaintiff's wrist with such treatment as its cause. The great and radical trouble was so large a growth of callus about the point of fracture that it united the radius and ulna, destroying almost completely pronation and supination; with this was the bent, or silver-fork, position of wrist and hand, impairing practical use of the latter. These induced the very serious operation performed by Dr. Gunderson of cutting open the arm, chiseling away the growth between the radius and ulna, freeing the ligaments which had become fastened into the callus, and then cutting a transverse section or disc out of the bent and distorted radius, so...