Lorenz v. Lerche

• Decision Date: 28 December 1923
• Docket Number: No. 23709.,23709.
• Citation: 157 Minn. 437,196 N.W. 564
• Parties: LORENZ v. LERCHE.
• Court: Minnesota Supreme Court

157 Minn. 437

196 N.W. 564

LORENZ

v.LERCHE.

No. 23709.

Supreme Court of Minnesota.

Dec. 28, 1923.

Appeal from District Court, Ramsey County; John W. Boerner, Judge.

Action by Hugo G. Lorenz against Dr. William Lerche. From an order denying his motion in the alternative for judgment or a new trial, defendant appeals. Reversed, and new trial granted.

Syllabus by the Court

In this action for malpractice in rebreaking and resetting the bones of plaintiff's leg, which had not healed satisfactorily after a fracture, where it is claimed defendant's alleged negligence resulted in two main injuries, failure of the fragments to unite and ankylosis of the ankle, recovery as to each must be supported by testimony of experts.

In such a case the question put to a qualified expert should not call for his opinion as to whether the surgeon's treatment was proper or improper, but rather whether or not it was according to the customary and usual practice of the ordinarily careful and skilled surgical practitioners of the same school in the community.

Where an objection to a question was made upon several grounds, but not the one urged on the appeal, and it appears that in the subsequent testimony of the witness similar questions were put and answered without objection, no error can be assigned on the ruling.

The court correctly refused to submit the issue of plaintiff's contributory negligence.

The size of the verdict indicates an award for all the consequences claimed in the complaint from the negligence charged, but the evidence is held so slight and doubtful as to the main bad result being caused by defendant's negligence that, in the interest of justice, a new trial should be had. Chas. L. Hayes and Moore, Oppenheimer, Peterson & Dickson, all of St. Paul, for appellant.

T. P. McNamara and Wm. H. Seward, both of St. Paul, for respondent.

HOLT, J.

Both the tibia and fibula of plaintiff's right leg were fractured at the junction of the lower and middle thirds. A doctor near his home in Wisconsin set the bones and treated him. The ends of the bones could not be kept in place, and union was difficult and slow. The result was not satisfactory. About a year later, plaintiff, having removed to St. Paul, consulted defendant, a surgeon, who advised an operation, rebreaking the fracture and resetting the same. The operation was had in May, 1921. It was not successful. For a long time plaintiff suffered from uncers on the instep and the heel, the ankle has become rigid, and bony union has not yet formed at the fracture. This action for malpractice followed, with a verdict for $15,845. Defendant appeals from the order denying his motion in the alternative for judgment or a new trial.

[1][2] This is a case where a jury could not determine the issue of defendant's negligence without testimony from medical experts. The main item upon which to base damages is the failure of the fractured bones to form a bony union; the next of substance, the ankylosis of the ankle joint. Whether this was caused by defendant's unskillful or negligent operation or treatment must necessarily rest upon competent medical testimony. Bad results alone will not justify an inference of improper treatment. The skill and care of the most competent and painstaking surgeon often fails to cure or relieve. The inherent recuperative or healing powers of patients differ greatly. And even in the same person such powers may vary from time to time. Therefore, when the question is to be determined whether a physician or surgeon has negligently or unskillfully treated or operated on a patient, the standard to be given the jury is the usual and customary practice of the ordinarily skilled and careful practitioner in the community. Where the doctor has come up to that standard, the law holds him free from damage claims, even though it appears that errors of judgment in diagnosis or treatment have occurred. The question for the jury is not what a certain practitioner may have done in a particular case. Hence special care should be taken that verdicts in malpractice cases are not made to rest upon a generally expressed opinion that a course of treatment was improper, unless there is evidence reasonably disclosing some specific acts or omissions which, under the standard mentioned, constitute negligence or unskillfulness, and, further, that such negligence or unskillfulness, in the opinion of the medical experts, caused the suffering and bad results for which damages are sought and allowed. The law regarding a physician's or surgeon's responsibilities is adequately stated in the cases cited in Berkholz v. Benepe, 153 Minn. 335, 190 N. W. 800.

There is but one assignment of error urged in relation to the admission of testimony, namely, that Dr. Woolson, over defendant's objection, was permitted to express his opinion that, taking plaintiff's evidence as true, defendant's treatment was improper. Several reasons may be given why the ruling, even if erroneous, should not in and of itself cause a new trial. The objection did not point out the ground now urged, namely, that the question called for the witness' individual opinion as to the treatment given, instead of whether the treatment conformed to that usually given by the ordinarily careful and skilled practitioner in that community. Spain v. Burch, 169 Mo. App. 94, 154 S. W. 172;Wood...