Lundgren v. Minty
| Citation | 266 N.W. 145,64 S.D. 217 |
| Decision Date | 30 March 1936 |
| Docket Number | 7801. |
| Parties | LUNDGREN v. MINTY. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; James McNenny, Judge.
Action by August Lundgren against Frederick W. Minty. From an adverse judgment, the defendant appeals.
Affirmed.
Henry H. Clark, of Denver, Colo., and H. F. Fellows, of Rapid City for appellant.
T. B Thorson, W. A. McCullen, and Denu & Philip, all of Rapid City, for respondent.
Plaintiff instituted this action against defendant, a duly licensed physician and surgeon, to recover damages in the sum of $20,000 for claimed malpractice. Issues were joined, and the matter came on for trial to a jury. Defendant moved for directed verdict at the close of plaintiff's case and again at the close of all the testimony, and subsequently moved for judgment n. o. v., all of which motions were denied. The jury returned a verdict, finding for plaintiff on all the issues and assessing his damages at $3,500. From judgment entered thereon and from denial of his application for new trial defendant has appealed.
Appellant most earnestly urges in this court the point presented below by his motions for directed verdict and for judgment n. o. v., to wit, the insufficiency of the evidence to support any verdict against him.
Undisputed facts appear from the record as follows: Respondent, Lundgren, a bachelor about 69 years old, was farming for himself in Haakon county, S. D., living alone. On the evening of May 7, 1933, while feeding his horses in the stable, one of the animals, becoming unruly, pushed respondent against a manager in such fashion that both bones of his right leg were broken between the knee and ankle approximately at the juncture of the lower third of the leg with the middle third. Respondent crawled into the manager, where he remained all night. Shortly after daylight in the morning he managed to get out of the barn, tied his leg up somewhat with the aid of a piece of board, a rope, and some grain sacks, and dragged himself out to the public highway. The rural mail carrier discovered him there about 9:30 in the morning and took him to the Community Hospital at Philip, S. D., where he was attended by a local physician, Dr. Ramsay, who applied a dressing to the leg and put it in some kind of a splint. Respondent remained at the hospital in Philip from his arrival there about noon of May 8 until the afternoon of May 15, when Dr. Ramsay took him to the Black Hills Methodist Hospital at Rapid City, S.D. He made the journey from Philip to Rapid City (some 90 miles) sitting erect in the rear seat of an automobile with his injured leg supported and extended straight out. Dr. Ramsay called appellant to the case, and appellant agreed with respondent to take charge thereof and treat and care for him. Appellant first saw respondent in the hospital during the early evening of May 15. He immediately caused X-ray pictures of the leg to be taken by the hospital technician, which disclosed that the broken bones were not in apposition and that there was a considerable accumulation of gas in the soft tissues of the leg in the region of the fracture. After the X-ray examination appellant had respondent taken into the operating room, a general anaesthetic administered, and performed what is called an "open operation" upon the leg, which consisted in making an incision down almost to the ankle, practically in the midline of the leg, exposing the area of fracture, and making a second slightly curved incision down and into the calf of the leg. When the fracture was thus compounded, a considerable amount of pus and gas escaped and the incisions were left open and drainage tubes were inserted. For the purpose of pulling the broken fragments of bone into proper position, appellant then put the leg in what is known as a. "Boehler splint." For the use of this apparatus a wire pin was put through the bones of the leg just above the ankle and traction was exerted thereon by means of an extension frame and weight so that the broken ends of the bones could not override. Hot dressings were used upon the leg from the knee down, and the patient's general condition was treated for a number of days. Respondent was seen from time to time by Dr. Jernstrom, Dr. Lemley, and Dr. Earl Minty, son of appellant, all of whom are licensed physicians and surgeons associated with appellant in the conducting of what is known as the Midwest Clinic at Rapid City. A special nurse was in attendance from the evening of May 15 until the afternoon of June 19.
On May 29, after consultation with his associates, appellant decided to discontinue the use of the Boehler apparatus. Respondent was removed therefrom and again taken to the operating room and a general anaesthetic administered. For the purpose of extending and holding in place the broken ends of the large bone of the leg, appellant applied what is known as a "cow-bone splint," which consists of a small piece of cow bone bridging the break and fastened to each of the two broken ends of bone by drilling and threading a hold therein and employing cow-bone screws. After applying this splint directly to the bone, the leg was placed in a plaster cast extending from some distance above the knee down to the toes. A window or opening was cut in the cast to allow access to the incisions made by appellant on May 15 and to the field of drainage therefrom, and an area around the heel was also cut out. On June 3, and perhaps at several other times while this first cast was on the leg, the cast was somewhat further cut away so as to enlarge both the window over the area of incision and the opening at the heel. On the evening of June 11 there was a flow of blood from the wounds on respondent's leg. By direction of appellant, the special nurse on that evening removed one of the drainage tubes from the leg and thereafter there was a further flow of blood.
On July 15 the first cast was removed and another X-ray picture was taken, which showed a little growth of new bone above the point of fracture, but no new growth below, and, in fact, some deterioration of bone tissue. The leg was then placed in an open wire cradle, where it remained until on or about July 20, when a second plaster cast was applied which corresponded in general structure to the first one, excepting that the window over the fracture and incision area was not as large as in the first cast, because there had been meantime some healing of this area. On August 24 the second cast was removed and another X-ray picture was taken, which showed further growth of new bone above the point of fracture, but little, if any, below, and, in fact, some further deterioration of bone structure below the fracture, particularly in the large bone. On August 30 respondent dismissed appellant and called in Dr. Dawley, who examined the leg on August 31, and the next day made a further and more thorough examination of its condition with respondent under a general anaesthetic. Doctor Dawley thereupon returned respondent to bed, took measures to improve his general condition by administration of tonics and proper diet and the giving of a blood transfusion, and on September 7 performed an amputation at a point midway between the hip and knee. Respondent continued thereafter in Dr. Dawley's care, and his recovery appears to have been normal and uneventful to and including his discharge from the hospital on December 11, approximately the date of the institution of this action.
It is conceded by all concerned that at the time Dr. Minty was discharged from the case and Dr. Dawley was employed respondent's foot was badly ulcerated and exhibited symptoms which would be anticipated from an appreciable impairment of the circulation of the blood in the foot. As to the scope and extent of those symptoms and as to the condition of the foot as a whole at that time there is a conflict in the testimony. Appellant says that, when the second cast was removed, the foot was gangrenous in a limited area, but was still alive, and, as he says, * * *" On the other hand, Dr. Dawley was of the opinion when he examined respondent that the destruction of the foot had proceeded so far that there was no hope of being able to work any improvement in its condition and that immediate amputation was indicated. The jurors were entitled, if they saw fit, to accept Dr. Dawley's opinion on this point in preference to appellant's, and apparently they so did.
In the last analysis, the differences between appellant and respondent in their theories as to the ultimate facts of this case come to a definite focus on the...
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