Lohr v. Watson

• Decision Date: 27 January 1942
• Docket Number: 8462
• Parties: RICHARD H. LOHR, Appellant, v. E. SHELDON WATSON, Respondent
• Court: South Dakota Supreme Court

68 SD 298, 2 NW2d 6 (1942)

RICHARD H. LOHR, Appellant v. E. SHELDON WATSON,

Respondent

South Dakota Supreme Court

Appeal from Circuit Court, Hamlin County, SD

Hon. Vern G. Wohlheter, Judge.

#8462--Affirmed.

Case & Case, Watertown, SD

Attorneys for Appellant.

Walter Stover, Watertown, SD

S. S. Larson, Minneapolis, Minn.

Attorneys for Respondent.

Opinion filed January 27, 1942; Rehearing Denied March 11, 1942.

SMITH, J.

Plaintiff sought damages for alleged malpractice from defendant, a physician. The trial court directed a verdict for defendant at the close of plaintiff’s case. The principal assignment predicates error on that ruling.

Under well settled principles, we consider the evidence in the light most favorable to plaintiff (Clinkscales v. Wisconsin Granite Co., 38 SD 205, 160 NW 843; Commercial & Savings Bank v. Duitsman, 48 SD 534, 205 NW 379), for the purpose of determining whether there is any substantial credible evidence which would have supported a verdict of the jury for plaintiff. Wolff v. Stenger, 59 SD 231, 239 NW 181.

The evidence developed the following facts. The defendant, at the times in question, was practicing his profession at Estelline, South Dakota, where he maintained and operated a small hospital. Plaintiff entered that hospital and submitted himself to treatment by defendant on February 18, 1936. He was then suffering from pneumonia. During this illness plaintiff received serum injections. He was discharged as convalescent on March 7, 1936, and was instructed by defendant to remain quiet. Shortly after his discharge from the hospital he complained to defendant of aching joints and was advised that his condition was the result of his illness and that his system would throw it off. Medication was prescribed by defendant. Thereafter, plaintiff’s trouble localized or settled in his left hip. He advised defendant of that fact. On April 23d defendant made a thorough physical examination of plaintiff and made a note of his tentative diagnosis on his office records in words as follows:

“Impression: Acute infection, artritis of left hip precipitated by trauma.” This office record shows “Temperature 99.2, white blood count 7,800, considerable pain in left hip on motion. No tenderness, swelling or local heat. X-ray of the hip shows normal bone texture, no evidence of periosteal thickening and no sign of cartilage destruction.”

From the date of his discharge from the hospital plaintiff had been down town almost every day and had been driving his car. Defendant had seen him around. On April 25th defendant was called to attend plaintiff at home, and while there suggested hospitalization. Plaintiff entered the hospital that afternoon. He was put to bed and a Buck’s extension applied to the leg. Part of the doctor’s progress notes were introduced by plaintiff and contain the following notations:

“4-25-36: Comes in on crutches. Pain in hip so severe as to interfere with sleep. T 99.4 W B C 8,200. No tenderness or swelling or redness about hip joint but considerable pain on motion. X-ray of left hip reveals no evidence of bone involvement or cartilage destruction. Periosteum is smooth. Hospitalized for observation and immobilization.

“4-26-36: Buck’s extension applied last night with 6 lbs wt-increased this morning to 10 lbs. Pt. uncooperative and vulgar.

“4-28-36: No change in condition. Says pain is severe but there is no tenderness. ...

“4-30-36: Hip joint still negative to palpation. No heat or tenderness. Patient doesn’t want enemas and refuses cathartics.

“5-2-36: Still no heat or tenderness about joint. Temp. receding slightly-has dropped from high of 101.8 on 4-28 to high of 99.8 today. W B C 9,000.

“5-4-36: Seems slightly better. Weight removed long enough to allow patient up in chair today for 30 min. Refuses enemas.

“5-10-36-Pain the same. Weight removed a little each day for manipulation of ankle and knee and massage. Foreign protein injections to be started tomorrow.

“5-12-36. Satisfactory temp. response to foreign protein yesterday. Feels a little better.

“5-16-36 Second injection of foreign protein yesterday with satisfactory response and considerable alleviation of pain. Patient is very abusive and uncooperative.”

The plaintiff testified that defendant told him on April 25th that the X-ray showed a piece of cartilage in the joint, and that extension was being applied to let it flow out. He also stated that the doctor told him on a later date that he was injecting malaria germs to induce a fever and kill that which was in his hip.

The treatment between April 25 and May 29 consisted of the extension of the limb for about two weeks, constant beat, Oxate B tablets, and other medication to induce sleep or relieve pain. Other X-rays were taken. During this time plaintiff complained constantly of severe pain. On May 29th defendant explored the hip joint with an aspirating needle and withdrew pus. This pus contained pneumococci germs. That afternoon he made a posterior incision and established drainage. Thereafter plaintiff remained at the hospital under treatment by defendant and his assistant until August 14, 1936. During this period drainage was maintained, the wound was dressed, ultraviolet and infrared light applied, the limb was again extended for a period, some irrigation was attempted, and medicine was given to relieve pain. On August 14 plaintiff was taken to the Mayo Clinic at Rochester. He was there examined. The X-ray then made disclosed that the cartilage of the left hip had been destroyed. While there the sinus of infection was curetted, drainage maintained, and spica cast applied. On August 27th plaintiff was permitted to return home. Thereafter he visited the Mayo Clinic on January 26, 1937, on March 17, 1937, and on October 27, 1937. Different casts were applied during these visits. Drainage had not ceased until sometime before the October trip. By that time the hip joint had fused and there was practically no motion in it. As an end result plaintiff has a stiff hip and an impaired knee.

By his complaint and argument here plaintiff rests his case upon a specific ground. It is asserted in substance that defendant was negligent in that although he had determined that plaintiff was suffering from an infectious arthritis on April 23d, he failed to aspirate the hip...