Lehman v. Knott

• Decision Date: 29 March 1921
• Citation: 196 P. 476,100 Or. 59
• Parties: LEHMAN v. KNOTT.
• Court: Oregon Supreme Court

196 P. 476

100 Or. 59

LEHMAN v. KNOTT.

Supreme Court of Oregon

March 29, 1921

Appeal from Department 2, Circuit Court, Clackamas County; J. U Campbell, Judge.

Action by Lina Lehman against George C. Knott. Judgment for plaintiff, and defendant appeals. Reversed.

See also, 187 P. 1109.

This is an action for damages against the defendant, George C. Knott a physician and surgeon, for negligence in setting and treating the bones of plaintiff's wrist. The cause was tried by the court and a jury, and a verdict rendered in favor of plaintiff for the sum of $750. From a consequent judgment defendant appeals.

The plaintiff, Lina Lehman, while running from a deer near Wolf Creek in Douglas county, about 4 o'clock p. m. on November 8, 1918, fell and sustained a fracture of the left wrist. Both the ulna, the wrist bone back of the little finger, and the radius, the large wrist bone back of the thumb, were broken. The bone protruded horizontally through the flesh and became infected from contact with the soil. At that time the plaintiff was living about 5 or 6 miles from Wolf creek and about 10 miles from Glendale. Defendant lived in Glendale, a town of about 750 inhabitants, where he had been located about 5 years, practicing his profession as a physician and surgeon. He is 38 years of age, is a graduate of the College of Medicine of the State University of Iowa and had followed hospital work for nine months in the University of Iowa. He is also a graduate of a College in Cedar Rapids. Prior to moving to Glendale, the defendant had practiced his profession in Yoncalla, Or., for a period of 5 years, and had done eye, ear, nose, and throat work for a period of four months at Ashland, Or. The defendant has been the physician for the Southern Pacific Company at Glendale for a number of years, and also represents the State Accident Commission at that place. He had known the plaintiff since January, 1915, when it appears he treated her for cancer, and finally performed an operation on her for cancer. Soon after the plaintiff received her injury she telephoned to the defendant at Glendale. Dr. Knott took such bandages anæsthetics and splints as he had available, and went in a car to the place where plaintiff was living, reaching there about 6 p. m. When he reached the home, which was in an out of the way district in the mountains, the wrist was bleeding. Cloths had been wrapped around the wrist at the place of the break in order to stop the bleeding. The ends of the bones were covered with dirt and mud. The defendant testified that he cleaned the ends of the bones, gave the patient morphine to quiet the pain, used tincture of iodine for the purpose of allaying possible infection, placed the bones in apposition as best he could, put on anterior and posterior splints, and placed a gauze drain in the wound. The defendant then desired the plaintiff to go to the hospital at Glendale, but she was in a very much weakened condition, and was not able to make the trip. He offered to take her in his car, but as she was unable to stand the trip, he asked her to come to his hospital at Glendale not later than Sunday; the accident having occurred on Friday. Plaintiff came to the office of defendant on Sunday, whereupon the defendant examined the left wrist with his X-ray machine, and found that the bones were not in correct apposition, so he had the plaintiff go to the surgery of the hospital, where an anæsthetic was administered by the wife of the defendant, a trained nurse, and the bones were put in apposition, and splints were applied, as he states, the same as before. Dr. Knott noticed a fetid odor at that time. Bandages were wrapped around the splints, except at the opening in the splint, and at this place a gauze drain was inserted for the purpose of absorbing the pus. The wound was also swabbed out with iodine. Yucca board splints 3 1/2 inches in width were used. Defendant testified that he dipped the splints in hot water in order to soften them and cause them to be pliable. A duplicate of these splints is in evidence. He testified that these splints were placed entirely around the arm, with the exception of the place where the wound discharged, and that at such place an opening was cut in the splint in order to permit the dressing of the wound and its discharge.

The gist of the negligence is alleged as follows:

"That said defendant so negligently, carelessly and unskillfully treated said plaintiff that said bones were never brought into nor kept in apposition, as they could and should have been set by this defendant, all without fault on the part of plaintiff."

The answer puts the complaint in issue.

At the close of plaintiff's testimony the counsel for defendant moved the court for a judgment of nonsuit. At the close of the case defendant requested the court to instruct the jury to return a verdict in favor of defendant. The complaint does not allege in what particular defendant was negligent in the treatment of plaintiff. The question propounded to the expert witnesses reads as follows:

"On the 8th of November, 1918, the plaintiff sustained a fracture, an injury to her left hand, what is commonly known as a Colles' fracture, the ulna bone and the radius were fractured at the point; there was also a compound fracture; this injury happened at 4 o'clock in the afternoon, the defendant, Dr. George C. Knott, was called to take charge of the case. He arrived about two hours thereafter. He put on what is known as posterior and anterior splints when setting the bone. Two days after that the plaintiff went to his office at Glendale, and he looked at the wrist through a fluoroscope, and then discovered that the bones were not set, were not in apposition. He then administered an anæsthetic, and attempted to reset the bones. After that operation he put on side splints, one on each side of the left wrist; cut a hole in the outer splint, and wrapped the splints up, the arm, with a bandage. Would you consider the application of side splints in a case of that character as a proper, usual, and customary method of applying splints to an injury of that character?"

Counsel for defendant objected to the question, at various times, as incompetent, irrelevant, and immaterial, and for the reason that all of the elements testified to were not present in the hypothetical question; that the element of time claimed that these splints were changed was not given; that no question about the infection was submitted to the witness; that no proper foundation had been laid for a hypothetical question, and it was not within the issues of the case; that the question was not properly put; and that the place and conditions under which the operation was performed were not mentioned. The objections were overruled.

Dr. M. C. Strickland, a witness for plaintiff, who examined plaintiff's wrist and the X-ray plate, testified as to the condition of plaintiff's wrist that there had been a fracture; that the ulna bone appeared to be in apposition; that there had been a compound fracture; that the flesh had been lacerated, and there had been a bad wound; and that the radius bone was not in apposition. In answer to the formal question the doctor stated:

"A. Well, it is hard to answer that question for any physician, because he don't know the entire circumstances that were present at that time. Of course ordinarily in treating that case the bones would be adjusted and fixed with anterior and posterior splints, but the conditions that existed there at that time might have necessitated, as we very often have necessity for breaking them over, and so on, and that condition I don't know anything about. You really have to size a condition up of that kind, unless a man has it in actual attendance at the time, but the anterior and posterior splint for fixation is the proper thing.

"Q. What do you mean by anterior and posterior splints? A. The splints that go on the inside and outside of the arm.

"Mr. Senn: We move to have the witness' testimony stricken out, because it is not responsive, and it is not a proper answer to a hypothetical question. I take it that the only thing a witness can answer in a case like this is whether or not such a state of facts constitute proper practice under all the circumstances."

Dr. Strickland further deposed in part thus:

"Court: The general rule in these kind of cases is that one expert cannot testify as to the skillfulness or nonskillfulness of another expert. The question for the jury is as to the negligence.

"Q. Assuming the facts as I have given them to be true in this case, would you say that the application of side splints was an unskillful and a negligent application of splints?

"Mr. Senn: I object to that as incompetent, irrelevant, and immaterial and no proper foundation laid, and all the elements are not present.

"Court: Objection overruled.

"A. If I knew the exact condition of the wrist at that time I could give you a much more definite answer. That is the trouble. Ordinarily, under favorable conditions, I wouldn't say it is not the proper treatment, but what was at that time I can't say. But ordinarily I would not treat it in that way."

Dr. C. H. Meisner, an expert witness for plaintiff, examined plaintiff's wrist and the X-ray photograph, and testified as to the condition of her wrist, to the effect that "the end of the ulna has become united at the seat of the fracture, but the end of the radius has not. The end of the radius is to one side." In answer to the formal hypothetical question he stated:

"It depends on the fracture. * * *

"Q. Would you consider the application of side splints assuming those facts to be true, as the proper, customary and usual way of putting on splints? A. That would depend upon the...