McCandless v. McWha

• Citation: 22 Pa. 261
• Parties: McCandless versus McWha.
• Decision Date: 01 October 1853
• Court: United States State Supreme Court of Pennsylvania

22 Pa. 261

McCandless versus McWha.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Beaver county.

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Cunningham and McCandless, for plaintiff in error.—It was said that the rigid and unqualified position stated in the bill of exceptions was not a correct exposition of the law. It was, however, admitted that the law implies a contract upon the part of medical men to discharge their duty in a skilful and attentive manner: 1 Saunders 312, n. 2; 1 Lord Raym. 213; 2 Wils. 359; 8 East 348. A physician or surgeon is liable for injuries resulting from the want of ordinary diligence, care, and skill: 9 Conn. 209, Loudon v. Humphrey. A physician contracts to employ the usual skill, but not to cure: Gallagher v. Thompson, Wright's (Ohio) Reports, 466. But the rule stated in the bill, that the physician was bound to bring to his aid, not the ordinary and usual care and skill, but such as "to set the leg so as to make it straight and of equal length with the other when healed," it was said was in conflict with philosophy and the science of surgery. If such were the rule, all that would be necessary for a patient to do to entitle him to damages, would be to show that the injured leg was shorter than the other.

It was further contended, that the jury was misled by the Court assimilating the case of the surgeon to that of a stone-mason or bricklayer. If a mason or bricklayer should build a wall out of poor materials which were furnished by his employer and the wall fell in consequence of the defect of the materials, the architect would not be liable; also, the mason or bricklayer works with inanimate matter, but the surgeon has for his subject a thing of life, active and changing by its nature. The mode of treatment in one case may not be proper in another. Reference was made to Ferguson's System of Practical Surgery 316, for observations on the mode of treatment in cases of fracture of the leg, and to the observation that, "Sometimes a fracture may be treated without the aid of any appliances; on other occasions, what may be deemed the most perfect apparatus will not enable the surgeon to be so successful in his treatment as he could wish;" also to Professor Colles' Lectures on Surgery 315; Principles of Surgery, by Prof. Miller of Edinburgh, 497; Druitt's Modern Surgery 233; same page, "There are some cases which it is as difficult to account for as to remedy;" also Gibson's Surgery, vol. 2, p. 204; Abernethy's Lectures on Surgery 200; Id. 209, "it is of no use to strap and bandage a fracture to make it unite by main force." The support to be given to a fracture "should be gentle and equable, such as it would derive from the healthy state of the parts." It was said, from the surgical principles stated in the works cited, and from the fact testified to, of the fracture being such as stated — that the plaintiff's habits were restless and intemperate, and that he interfered with the treatment prescribed and attempted, that the charge was erroneous, and led the jury to a misapprehension of the true principles which should govern the case.

As to the 2d assignment, it was said that the part of the charge there referred to was contrary to the policy of the law, as tending to promote litigation. For observations on the subject, reference was made to the September No., 1853, of "The New York Journal of Medicine."

Roberts and Fetterman, for defendant in error.—Complaint was made to introducing into the paper-book the deposition of Dr. Duncan only.

It was stated, that the fracture being not only oblique but comminuted, or broken into small pieces, according to the testimony, the bone itself could not keep up the proper extension of the leg, and therefore something was necessary to keep up the extension of the limb, otherwise the muscles of the leg would, by contraction, cause the oblique or pointed ends of the bones to slip past each other; whilst, on the other hand, if the leg was bandaged so tightly as to prevent them passing, painful tumefaction of the limb would necessarily ensue, and require the removal of the bandages, which result, it was said, was proved in this case. It was therefore necessary, as testified by surgeons, to have splints of such length in this case, as by fastenings at the knee and foot would counteract the contraction of the muscles and keep up the extension of the leg at the proper length, and obviate tight bandaging. Besides the want of such treatment, it was said that the patient was permitted to lie on a soft feather bed, without a box or other means to prevent the sinking of the heel or the weighing down of the foot by the pressure of the bed-clothes.

It was said that in making the reference, in the charge, to the mason or bricklayer, the judge spoke only of the duty to bring the requisite skill of a surgeon to his aid, referring to the mechanical trades by way of illustrating the principle. That the reference was understood as illustrating the principle of duty, and not as intended to assimilate the work of a surgeon to the inanimate wall of the mason or bricklayer. That after the lapse of three years, the recollection of the language must be imperfect, and the Court should not strain the language of the bill of exceptions to produce a meaning contrary to common sense and probability.

It was said that it was not stated in the bill of exceptions that the defendant was bound to set the leg so as to make it straight and of equal length with the other, but that he was bound to bring to his aid the skill necessary for a surgeon to set the leg, &c., and it was this skill to which the Court had reference. That the Court have before it but an isolated part of the charge. The surgeon is bound to bring to his aid the skill necessary to that end, if it be surgically possible. It was said that, according to the charge, he is only to possess the skill necessary for the purpose; but according to the argument on part of the plaintiff in error, he is also bound to accomplish that result.

As to the portion of the charge referred to in the 2d assignment, it was said that the remark was not specially applied to this case, and that a judge trying a cause has a right to express his opinion on matters of fact, not as binding instructions, but as enforcing on the jury the performance of their duty.

It was said that medical authorities have been cited to show that extension of the limb is unnecessary in setting a fracture. Whether this be so, is not now a question for this Court. This Court does not sit to correct errors of surgery, but of law. If the judge correctly laid down the law on the evidence before him, he committed no error.

The opinion of a majority of the Court was delivered by WOODWARD, J.

This was an action on the case by the defendant in error against the plaintiff in error, a respectable physician and surgeon, for malpractice in setting a broken leg of the plaintiff; and the only question of any importance presented for our consideration is, whether the Court erred in charging "that the defendant was bound to bring to his aid the skill necessary for a surgeon to set the leg so as to make it straight and of equal length with the other, when healed; and if he did not, he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down, or if they built a chimney and it should smoke by reason of a want of skill in its construction."

It is impossible to sustain this proposition. It is not true in the abstract, and if it were, it was inapplicable to the circumstances of the case under investigation. The implied contract of a physician or surgeon is not to cure — to restore a fractured limb to its natural perfectness — but to treat the case with diligence and skill. The fracture may be so complicated that no skill vouchsafed to man can restore original straightness and length; or the patient may, by wilful disregard of the surgeon's directions, impair the effect of the best conceived measures. He deals not with insensate matter like the stone-mason or bricklayer, who can choose their materials and adjust them according to mathematical lines; but he has a suffering human being to treat, a nervous system to tranquillize, and a will to regulate and control. The evidence before us makes this strong distinction between surgery and masonry, and shows how the judge's inapt illustration was calculated to lead away the jury from the true point of the cause. Dr. Duncan describes the fracture as an oblique comminuted one of the tibia and fibula of the leg, about half-way between the ankle and the knee; and he says that on one occasion when he was present at a dressing of the limb, he heard Dr. McCandless complain that McWha had loosened the bandages, and he told him that if he loosed them his leg might be shortened; but McWha justified his act because his leg was painful. Now, upon such a state of facts, the question was not whether the doctor had brought to the case skill enough to make the leg as straight and long as the other, but whether he had employed such reasonable skill and diligence, as are ordinarily exercised in his profession. For less than this he is responsible in damages; but if he be held to the measure laid down by the Court below, the implied contract amounts on his part to a warranty of cure; for which there is no authority in law. In a fracture like this, a shortening of the limb is sometimes an inevitable consequence. Dr. Dorsey in his Elements of Surgery, speaking of broken legs below the knee, says, "the fracture of both bones is most frequent; it may be transverse or oblique, simple or compound, comminuted or single. The fragments are occasionally displaced in every direction. In transverse fractures there is generally no shortening of the limb, but in those that are oblique the leg is generally shortened." And from Ferguson's System of Practical...