Mcdonald v. Crider

• Decision Date: 25 May 1925
• Docket Number: No. 15021.,15021.
• Citation: 272 S.W. 980
• Parties: McDONALD v. CRIDER.
• Court: Missouri Court of Appeals

272 S.W. 980

McDONALD v. CRIDER.

No. 15021.

Kansas City Court of Appeals. Missouri.

May 25, 1925.

Appeal from Circuit Court, Cole County; R. A. Breuer, Special Judge.

"Not to be officially published."

Action by Sarah E. McDonald against A. J. Crider. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Leslie B. Hutchison, of Vienna, Dumm & Cook, of Jefferson City, and Lorts & Breuer, of Rolla, for appellant.

W. C. Irwin, of Jefferson City, for respondent.

BLAND, J.

This is a malpractice suit. There was a verdict and judgment for plaintiff in the sum of $2,500, and defendant has appealed.

It is contended by the defendant that the court erred in failing to give his instruction in the nature of a demurrer to the evidence.

The facts, taken in their most favorable light to plaintiff, show that on December 25, 1918, while living on a farm in Maries county, plaintiff sustained a dislocation of the ulna of her right arm, as the result of being kicked by a cow she was milking; that defendant, a physician residing in Brinktown, a nearby place, was called and he diagnosed plaintiff's trouble as a transverse Colles fracture of the radius of the right arm. After manipulating the arm and setting what defendant claims to have been a Colles fracture, he placed upon it two splints, one on the under side of the arm, extending from the elbow to the ends of the fingers, and a shorter one on the upper side of the arm. He then tightly bound the splints and the dressing that he had placed on the arm. The arm became so painful that, instead of visiting the doctor, as directed by him, she was required to call him to see her on December 29th, when he again dressed her arm. The pain continued and plaintiff visited defendant's office on or about January 1, 1919, and about every week thereafter until after the lapse of 5½ weeks, when, the doctor took off the long splint on the under side of her arm, but left on the short splint, where it remained about 10 weeks from the time it was first put on. After the splints were removed, plaintiff did not consult defendant again until November 18, 1919. Defendant did not manipulate the fingers of the right hand.

The evidence shows that, at the time of the trial, the lower end of the ulna, or outside bone, in the wrist was broken loose from its attachment at the wrist joint and drops out of place; that the ulna and radius had been pulled apart; that the radius alone is in position and the only bone that now articulates with the hand. By reason of the detached condition of the ulna, there is no fulcrum over which the tendons can play to produce motion. Plaintiff's hand is enlarged, the fingers are stiff, and the hand has been rendered to a great extent useless and continues to be very painful.

There is a great deal of evidence in the record tending to show that plaintiff actually sustained a Cones fracture, but there was also evidence to go to the jury that she did not sustain such a fracture, but, as before stated, a dislocation of the ulna. Defendant admitted at the trial that he did not discover the dislocation of the ulna, if any, and the fact that it had been broken loose from the radius. There was evidence that the treatment for such an injury, as plaintiff actually received, would be different from that given by the defendant for Colles fracture. That in treating the injuries that plaintiff sustained (and, in fact, in treating a Colles fracture) the fingers should be left so that they could be manipulated, and if they were tied up for a long time they would ankylos or grow stiff.

Plaintiff's physician testified that by a "manipulation of the wrist you can get a digital examination sufficient to guide you, unless it is swollen too much." We assume that this means that, unless the wrist, at the time it is first examined by the physician, is swollen too much, he can discover upon manipulation that there is a dislocation rather than a Colles fracture. However, the evidence shows that, when defendant" first examined plaintiff's arm, it was swollen, but as to what extent is not disclosed, that is to say, whether it was "swollen too much" for him to have discovered the true condition, nor is there any explanation of what plaintiff's physician meant by "swollen too much." There is no testimony tending to show the extent of the difficulty a physician would have in deciding whether the patient, under the circumstances found by defendant, when he was first called, was suffering from a Colles fracture or a dislocation. Defendant testified that he found a Colles fracture one-half an inch from the end of the radius. The testimony tends to show that in a great many cases of Colles fracture there is a breaking loose of the ligaments and tendons, and there is no method of discovering whether the ligaments and tendons are so broken, even with the X-ray. Defendant had no X-ray available at the time he set plaintiff's arm.

The petition is founded upon alleged negligence and unskillful conduct of the defendant. It is well settled that cases of this kind are based upon negligence. Nevinger v. Hain, 197 Mo. App. 416, 190 S. W. 39. A physician is not liable solely because of want of success. 30 Cyc. 1575.

"The skill and diligence which the law requires of a physician or surgeon is such as is usually exercised by others of the same school. Getchell v. Hill, 21 Minn. 464; Martin v. Courtney, 75 Minn. 255, 77 N. W. 813. He is not necessarily liable for malpractice because of a bad result. He must often act promptly, upon his best judgment, and he is not liable for injuries arising, without negligence, from honest errors of judgment. Staloch v. Holm, 100 Minn. 276, 111 N. W. 264, 9 L. R. A. (N. S.) 712; McGray v. Cobb, 130 Minn. 434, 152 N. W. 262, 153 N. W. 736. But this is an exception to general rules of negligence and the exception is not absolute....