Manser v. Collins

• Decision Date: 07 May 1904
• Docket Number: 13,601
• Citation: 76 P. 851,69 Kan. 290
• Parties: W. H. MANSER v. MARY E. COLLINS
• Court: Kansas Supreme Court

76 P. 851

69 Kan. 290

W. H. MANSER v. MARY E. COLLINS

No. 13,601

Supreme Court of Kansas

May 7, 1904

Decided January, 1904.

Error from Cowley district court; JAMES LAWRENCE, judge.

STATEMENT.

THIS was an action against a physician for malpractice. Plaintiff below, Mary E. Collins, was thrown against the side of a barn by a vicious horse which she was trying to hold, and sustained a fracture of the left elbow and shoulder and a downward dislocation of the right shoulder. She was sixty years old at the time. On the day of the accident she called in Doctor Manser, plaintiff in error, who, according to the testimony of plaintiff and another woman who was present made a very indifferent examination of the affected arms. He told the patient that they were simply bruised and left her some liniment and morphine tablets, after injecting the left arm hypodermically with morphine. This was on May 18, 1900. The plaintiff told the doctor that her arms felt as though they were paralyzed. She testified that she was in a "rage of misery"; that her arms were discolored but not swollen; that the doctor pushed up her sleeve far enough to put an injection in the arm. Plaintiff was in great pain for three days afterward, and again called in the doctor on May 22, and told him of her suffering. On this visit he did not examine the bruised limbs. He stayed about fifteen minutes and left some morphine tablets like the first. At the second visit her right arm was much swollen. After this he was again sent for but was absent from town. On the 26th day of the month another physician, Doctor Musgrave, was called and found the patient vomiting and in much pain. He applied hot cloths to the affected parts and used liniment to reduce the swelling. On June 9 Doctor Musgrave again called and advised plaintiff to go to Winfield and have her arm treated by a competent surgeon. This was not done, however. At the time of the trial, in November, 1902, plaintiff suffered pain in her arms, not constantly, but at intervals, and was unable to raise them to her head.

The negligence charged in the petition against defendant below was that he had failed and neglected to ascertain the dislocation of the right arm and fractures of the shoulder and left elbow when the same were easily discoverable by the exercise of ordinary care and attention; that he wholly failed to treat said injuries; and that the dislocation and fractures were not discovered until another physician was called. The answer was a general denial, with an allegation of contributory negligence on plaintiff's part.

In answer to particular questions of fact the jury found that defendant below did not exercise the care and attention ordinarily used by physicians in that locality to discover the nature of plaintiff's injuries and to treat her therefor; that he did not make a thorough examination; that his attention was called to the injury to the right shoulder that he was not discharged from the case before he had had a reasonable opportunity to discover the nature of plaintiff's injuries; that plaintiff's injuries consisted of a fracture of the elbow, fracture of the shoulder-blade, and dislocation of the shoulder; that the nature and extent of plaintiff's injuries could have been determined and discovered by a physician of ordinary skill and ability at the time Doctor Manser was first called, and at any time thereafter up to June 9, 1900; that if the nature and extent of the injuries had been discovered by defendant they could have been cured or remedied so that her condition would have been improved, and she would have been relieved from bodily pain. The following answers were also returned by the jury:

"19th. In what sum, if any, was the plaintiff damaged by reason of bodily pain suffered from the failure of the defendant to discover the nature of the injury to the left elbow? A. $ 100.

"20th. In what sum, if any, did the plaintiff suffer damage by reason of bodily pain suffered from the failure of the defendant to discover the nature of the injury to the right shoulder. A. $ 100.

"21st. What sum would compensate the plaintiff for the mental anguish, if any, suffered by her by reason of the failure of the defendant to discover the nature of the injury to her left elbow? A. $ 200.

"22d. What sum would compensate the plaintiff for the mental anguish, if any, suffered by her by reason of the failure of the defendant to discover the injury to her fight shoulder. A. $ 250."

A general verdict was returned in favor of the plaintiff below for $ 650, and judgment was entered for that amount by the court. Defendant complains of error committed by the court below.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PHYSICIANS AND SURGEONS -- Liability for Failure to Discover Dislocation and Fracture. A physician is answerable in damages for a failure to discover a serious dislocation of a patient's shoulder and a fracture of an arm when there was a reasonable opportunity for examination and the dislocation and fracture could have been ascertained by the exercise of ordinary care.

2. PHYSICIANS AND SURGEONS -- Mental Suffering a Proper Element of Damages. Mental suffering naturally attending, and incident to, physical pain, prolonged by the failure of a physician to discover the seat of a bodily injury, is a proper element of damages in cases mentioned in the preceding paragraph.

Jackson & Noble, for plaintiff in error.

S. A. Smith, and J. E. Torrance, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

Nearly all of the brief of counsel for plaintiff in error is devoted to the contention that the verdict of the jury was contrary to the evidence and should have been set aside by the trial court. We have read the testimony on both sides of the controversy, and while it does not strongly preponderate in favor of plaintiff below yet we are not prepared to say that there was no evidence to justify the result. Doctor Tandy, a disinterested witness, testified that in like cases the practice among members of his...