McCoy v. Clegg

• Decision Date: 21 June 1927
• Docket Number: 1224
• Citation: 36 Wyo. 473,257 P. 484
• Parties: McCOY v. CLEGG [*]
• Court: Wyoming Supreme Court

257 P. 484

36 Wyo. 473

McCOY v. CLEGG ^[*]

No. 1224

Supreme Court of Wyoming

June 21, 1927

APPEAL from District Court, Sheridan County; JAMES H. BURGESS Judge.

Action by Eleanor McCoy, a minor, by her next friend, Tom McCoy against Dr. E. G. Clegg. Judgment for plaintiff, and defendant appeals.

Affirmed.

H Glenn Kinsley, for appellant.

Evidence founded on expert knowledge is admissible, but mere opinion is not; 21 R. C. L. 405; Laudon v. Scott, (Mont.) 194 P. 488; Pettigrew v. Lewis, (Kan.) 26 P. 458; 3 Whart. Med. Jur. 500. The court erred in permitting six of the jurors to examine plaintiff's arm; plaintiff is entitled to the independent judgment of each juror; 10 O. D. 631; 24 Cyc. 185; Minnequa Cooperage Co. v. Hendricks, (Ark.) 197 S.W. 280. It was improper to permit any of the jurors to examine the arm; Willis v. Browning, (Mo.) 143 S.W. 516; Hatfield v. Co., (Minn.) 22 N.W. 176; Felsch v. Babb, (Neb.) 101 N.W. 1011; Landro v. Ry. Co., (Minn.) 135 N.W. 991. The court erred in receiving testimony from plaintiff's father, as to her physical condition; 11 R. C. L. 574. Improper treatment and negligent treatment are distinct terms; Dishman v. Ass'n., (Wash.) 164 P. 943. The court erred in permitting leading questions as to the cause of paralysis; Paterson v. Howe, (Ore.) 202 P. 225; 11 R. C. L. 579. The court erred in giving instruction numbered 5, as to negligence; Ewing v. Goode, 78 F. 442; Stemons v. Turner, (Pa.) 117 A. 922; Bunyan v. Goddrum, (Ark.) 228 S.W. 403. The rule as to negligence is stated in Ewing v. Goode, supra; see also Schumacher v. Murray Hospital, (Mont.) 192 P. 397. Negligence is not to be presumed, it must be proved; Loudon v. Scott, supra; Staloch v. Holm, (Minn.) 111 N.W. 264. The rule as to proximate cause is defined in Lemos v. Madden, 28 Wyo. 1; See also 22 R. C. L. 149. There was failure of proof as to damages, and the jury was left to base its judgment on conjecture and speculation.

Lonabaugh & Lonabaugh, for respondent.

Answers made to questions, without objection, are not subject to a motion to strike; Jones Ev. (3rd Ed.) Sec. 895, page 1415. The opinions of ordinary witnesses must often be received; this is especially true as to eye witnesses; Jones Ev. Sec. 360, page 542; Robinson v. Co., 36 P. 965; State v. Vanella; (Mont.) 106 P. 364. The witness, McCoy, was competent to testify as to the appearance of plaintiff's arm; general objections, without specific grounds, are disregarded; Jones Ev. (3rd Ed.) Sec. 893, page 1411. There was no error in the cross-examination of defendant's expert witness; Jones Ev. (3rd Ed.) Sec. 389, page 589; Ryan v. People, (Colo.) 114 P. 306. The maxim "res ipsa loquitur" is inapplicable to malpractice cases; Ewing v. Goode, 78 F. 442. There are marked exceptions to this in cases where sponges are left in the body after an operation; Harris v. Fall, 177 F. 79; Davis v. Kerr, 46 L. R. A. (N. S.) 611; Palmer v. Humiston, (Ohio) 101 N.E. 283. Instruction number 5, complained of, was given in Wheeler v. Bowles, (Mo.) 63 S.W. 675, and approved; the effect of an instruction is not to be determined upon a single statement, but must be considered as a whole in determining its natural effect; Wood v. Wood, 25 Wyo. 26; Loy v. State, 26 Wyo. 381; Baute v. Haynes, (Ky.) 104 S.W. 272; Jamison v. Hawkins, 13 Pa. Sup. Ct., 372. Pain and suffering may be considered as an element of damage; Machen v. Ry. Co., 13 Pa. S.Ct. 642. 17 C. J. 826. Error without prejudice does not warrant reversal; Epps v. State, (Ind.) 1 N.E. 491.

POTTER, Justice. BLUME, Chief Justice, and KIMBALL, Justice, concur.

OPINION

POTTER, Justice.

This is a case of alleged malpractice by the defendant below while engaged in the practice of his profession as physician and surgeon. A judgment for $ 500 was entered against him upon the verdict of a jury. The action was brought in the name of Eleanor McCoy, a minor, by Tom McCoy, her father, as "her next friend." The material averments of the petition are substantially as follows:

That on November 4, 1922, the plaintiff suffered an accident causing the fracture of her right collar bone; that the defendant was employed to set the broken bone and to attend plaintiff until she should be healed of said injury. That defendant set the bone and reduced the fracture, and, in so doing, carelessly, negligently, and unskillfully bandaged the right arm of the plaintiff, at the elbow thereof, so that the circulation in the arm was cut off, and carelessly, negligently and unskillfully permitted the arm to remain so bandaged for a period of about one week, during which time the bandage cut into the flesh and so injured the arm as to cause partial paralysis thereof, and to cause the same to become crooked, so that plaintiff has practically lost the use of the arm, and that in the healing of the wound, caused by the said unskillful and negligent manner of bandaging the arm, the flesh has become drawn, and scar tissue has formed, permanently injuring the arm. That by reason thereof the plaintiff suffered greatly in mind and body, and will continue to suffer for the term of her natural life, whereby she has been damaged in the sum of Ten Thousand Dollars. That she has incurred additional expense for care of the arm by another physician in the sum of One Hundred Dollars, for which additional sum judgment is also prayed, and for costs.

The several allegations of negligence and the results of defendant's treatment are denied generally by the answer; and that the defendant was careless or negligent at any time in attending the plaintiff is specifically denied; and it is alleged that the defendant used due care in setting the fractured bone and attending plaintiff on account of the injury; that he set the bone and bandaged the arm in the manner that competent and skillful physicians usually care for and attend their patients in like circumstances and skillfully and to the best of his ability rendered medical attention to the plaintiff, and diligently attended and cared for her. The answer also denies specifically that plaintiff has been injured permanently, or in any manner, on account of any negligence, carelessness or unskillful medical treatment or care on defendant's part. It is alleged also in the answer that the defendant was the "company doctor," and paid a monthly retainer by the employees of the Sheridan-Wyoming Coal Company at Monarch to render medical attention to them and their families, including the plaintiff and her father; that the defendant's services were rendered as such "company doctor," and without additional charge or compensation therefor, and such services would have continued, but that plaintiff's father refused to permit the continuance thereof and voluntarily employed another doctor to attend the plaintiff, for which action defendant was not in any wise responsible.

It will be observed that the charges of negligence do not include an express averment of failure to set the broken bone, the only injury alleged to have been caused directly by the accident, or to bring about a perfect and permanent union of the parts separated by the fracture. But the charges are directed to a lack of skill employed in the method adopted, which seems to have required a bandaging of the right arm, or at least a part of it, for the purpose of bringing the entire arm and hand into a position necessary to bring and hold the broken parts of the bone together. Nor do we understand that the petition charges the adoption generally of an improper method in setting the broken bone. But the charges are, and the evidence on the part of the plaintiff seem to have been intended to show, that the arm at the elbow was unnecessarily bandaged or bandaged too tightly, and allowed to remain in that condition for several days, causing a stoppage or a lack of circulation resulting in the formation of blisters upon the arm and a sore at the elbow from which there was an offensive odor and a gangrenous or putrid condition of the flesh, which subsequently sloughed away, leaving a hole showing, for a time, the underlying cords, and eventually a disfiguring scar, and also for a time a bent or crooked condition and a paralysis or partial paralysis of the arm. It may, however, be said in passing that at the time of the trial nothing of any such described conditions appear to have been observable except the scar, and that the arm then appeared to have so far recovered as to function normally in every respect. This may be better explained, perhaps, by reciting some of the evidence necessary to a disposition of certain exceptions relied on as grounds for reversal.

Mr McCoy, the father, testified that plaintiff was eight years old at the time of the trial in October, 1923, and was living with him and her mother at the time of the accident, at the coal mining camp, where he was employed by the coal company, and the defendant was employed as "company doctor." That she came home Saturday evening crying and complaining that her shoulder hurt her, they then having no reason to believe that a bone was broken, until the next day, Sunday, when they decided that something was wrong, and sent for Dr. Clegg. That the latter pronounced the collar bone broken in the middle, calling it "just a mere fracture." The witness then described the bandaging of the arm, including the fingers, with gauze, and the fastening of adhesive tape over the same; the language of which description we need not repeat, but which we understand was intended to show that the right arm was fastened against and across the body in such a manner that the right hand was placed upon the left shoulder. But he did say that by this operation the defendant pulled the bone back in place "while I pulled the adhesive tape across her shoulder,...