LeMon v. Kessel
| Decision Date | 21 June 1926 |
| Docket Number | No. 35582.,35582. |
| Citation | 202 Iowa 273,209 N.W. 393 |
| Parties | LEMON v. KESSEL ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Howard County; W. J. Springer, Judge.
Action for damages for malpractice. From a judgment in favor of plaintiff on a verdict of the jury, the defendants appeal. Reversed.Dutcher & Hambrecht, of Iowa City, and McCook & Lyons and C. W. Reed, all of Cresco, for appellants.
J. A. Cutting, of Cresco, and Wm. S. Hart, of Waukon, for appellee.
On or about August 13, 1918, appellee, who was a farmer, was injured by the fall of a hay derrick, which resulted in an oblique fracture of the femur of his right leg, an alleged injury to his knee, and an alleged fracture of the neck of the femur. Dr. Jinderlee was immediately called, and took charge of the patient. He moved him to the hospital at Cresco. Dr. Kessel, one of the appellants, was the chief surgeon of that hospital. On the succeeding day the appellants Kessel and Jinderlee reduced the fracture of the femur, applied splints thereto, and, by the use of weights attached to the foot, carried out what is designated in the record as the “method by extension and counter extension.” His limb was later put in a plaster cast. They took an X-ray picture of the femur, did not discover anything wrong with the hip, and for that reason did not X-ray it. Appellants are charged with negligence in this respect, as well as with negligence in failing to discover the condition of his knee. Generally, they are charged with negligence in the care and treatment of the patient with relation to his injury.
Appellee was released from the hospital in a little less than six weeks from the time he was admitted. Later, it developed that the injured leg was approximately three inches shorter than his left leg, and it was about two years thereafter before he could walk without the aid of a crutch or cane, and then only by the assistance of a shoe so constructed as to add an extension to the limb to met the length of the other.
This is a sufficient statement of facts for the present, and any additional facts deemed necessary will be referred to as the opinion progresses.
[1] Sixty-five errors are assigned, urged, and argued in this appeal, forty-nine of which refer to the admission or rejection of testimony. After laboriously checking up these assignments of error attacking the testimony, we find that 24 of them refer to instances where questions were asked and objections sustained, but the record further shows that the objection was withdrawn or that the question had been previously or subsequently fully answered, if not in terms, in substance at least. We regret that we are called upon to review such assignments of error. While the ruling on the objection, when made, was probably erroneous, at the same time, when the matter sought to be proven has been previously or is subsequently admitted, the error originally committed is, of course, without prejudice.
[2][3] Several other errors are based upon the sustaining of objections to questions in which the witness was asked whether or not the line of treatment used by appellants was the usual and ordinary practice of the profession in Cresco and similar communities in 1918. This line of questioning was objected to on the ground that it called for a conclusion and invaded the province of the jury. We have made a pronouncement on this question in which we held that this form of question was subject to the objection herein made. The rule, as we understand it to be, in this state is that the witness should testify as to what the usual and ordinary line of treatment is in similar cases at the place in controversy and like localities; next, show what line and character of treatment was used, but leave the conclusions or deductions to be made therefrom for the jury. In other words, after having shown the line of treatment actually used, and also showing what the usual, ordinary, and customary line of treatment was in such cases, it is for the jury, and not the witness, to draw the conclusion. We confess that this is rather narrow, but it is apparently a definite line, and we have so announced the rule in Van Sickle v. Doolittle, 184 Iowa, 885, at 888, 169 N. W. 141. It is therefore obvious that the ruling of the court on these objections was correct.
[4] Under objection, witnesses were not permitted to testify that the result of the line of treatment used by appellants was “satisfactory.” In one instance, where the witness testified that the result was “satisfactory,” that part of the answer was stricken by the court. Both of these rulings were correct, because the matter stated is wholly a conclusion, and, in fact, is not enlightening. The conception of what is satisfactory rests wholly in the mind of the witness, and gives no light to the jury. The testimony that the result was good or bad is of the same character, and is subject to the same objection.
[5] Testimony was offered by one of the appellants tending to show that, in a case of oblique fracture, particles of flesh and muscle were likely to obtrude themselves between the fractured ends of the bone, and thus cause a slipping. This evidence was rejected when it should have been admitted. The evidence shows that the bones did slip, and this proposed evidence may have thrown light on the question of why they slipped.
[6] One of the appellants was asked to describe to the jury, in his own way, appellee's condition when he left the hospital, when the witness last saw him, and what happened to the fracture of the neck of the femur before that time and at the time the X-ray pictures were taken. Objection was made to this and sustained. It should have been overruled, as there can be no question as to the competency and materiality of this testimony.
[7] Appellee's expert testified that one of the recognized methods of treating such condition as existed in this case is what is known as the “open method.” To meet this appellants sought to prove that such “open method” was not the usual and ordinary method of practice in Cresco at the time in controversy. Objection was sustained to this when it should have been overruled. Appellee injected the “open method” of treatment into the case, and appellants had the right to show that such treatment...
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