McDonnell v. Monteith
| Decision Date | 04 August 1930 |
| Citation | 231 N.W. 854,59 N.D. 750 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Emmons County Hutchinson, J. Action for damages for malpractice. From a judgment for the defendant notwithstanding the verdict, plaintiff appeals.
Reversed and new trial granted.
F E. McCurdy, for appellant.
Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480.
Charles Coventry and Zuger & Tillotson, for respondent.
Plaintiff must show by competent evidence that the damages claimed in the complaint were due to negligence or unskillful treatment in malpractice actions negligence is not presumed from results and the care required of the doctor must be tested by evidence of those skilled in such treatment of the same school of medicine to which he belongs; only such reasonable care and skill as is usually exercised by doctors in good standing of the same school is required of the physician. Nelson v. Dahl (Minn.) 219 N.W. 941.
The casual connection between the negligence claimed and the resulting injury for which damages are asked cannot be left to conjecture or speculation. Gemradt v. Du Bois (Minn.) 225 N.W. 297.
The patient has the burden of proving by expert evidence that the surgeon failed to exercise proper skill and care and a physician using one of two recognized methods of treatment of a shoulder dislocated was held not negligent. Holton v. Burton (Wis.) 222 N.W. 225.
To submit a malpractice case to a jury, the plaintiff must produce medical testimony showing defendant acted contrary to practice in that or similar communities. Delahunt v. Finton, 221 N.W. 168.
The jury, in the absence of expert testimony showing malpractice, may not draw inferences of negligence of the surgeon. Miller v. Toles, 183 Mich. 253, L.R.A.1915C, 595, 150 N.W. 118.
Res ipsa loquitur is not applicable in malpractice cases in this state. Dolan v. O'Rourke, 56 N.D. 416, 217 N.W. 666.
A physician is required to exercise the reasonable and ordinary care, diligence and skill such as ordinarily possessed by physicians practicing in similar localities in the same general line of practice. Hanson v. Thelan, 42 N.D. 617, 173 N.W. 457.
The plaintiff, McDonnell, is a farmer residing near Hazelton, a small town in Emmons county, North Dakota. The defendant, Monteith, is a physician and surgeon practicing at Hazelton. On October 17, 1927, McDonnell, who was operating a threshing machine, had his right arm caught between the belt and the pulley of the self-feeder. As a result he suffered a comminuted fracture of one of the bones (the radius) of the forearm. The flesh of the arm was badly bruised and lacerated and the skin was burned from the friction. He immediately went to the defendant for medical treatment. He inquired if defendant could attend to the injury and set the bone or whether he ought to go to Bismarck where there were hospitals and other facilities. The defendant said he could attend to the arm as well as the doctors at Bismarck. So McDonnell let the defendant attend to it. He reduced the fracture by the extension method and ascertained when the bone was in place by palpation. He put wire splints on the arm, bandaged it, and otherwise fixed it up. Owing to the burn and open wounds it was necessary to exercise special care so that there should be no infection. The doctor told McDonnell that the arm would pain for some time and that if the pain was too great he should return. He did return within a few hours and insisted that the arm was not properly set. The doctor then reset it and again applied the splints and bandaged the arm, and gave directions as to the care which should be exercised by McDonnell. Thereafter for some time he examined the arm daily, on each occasion removing the splints in order to dress the wounds and burn. McDonnell complained that he suffered pain continually. He said he could feel the bones grating and pointed out that the arm was crooked, but the doctor said that the arm was getting along all right. About seven weeks after the accident, some time the fore part of December, the doctor finally examined the arm, removed the bandages and splints, and said that plaintiff should exercise the arm as much as he could. However, the arm hurt so greatly that the plaintiff returned to the doctor, who bandaged it with adhesive tape. On the third day thereafter the arm had swelled so badly and pained so much that plaintiff removed the tape as the doctor had told him he might do in such case. The doctor then retaped the arm somewhat more loosely. This bandage remained on for some time. About January 3rd or 4th, plaintiff saw the doctor for the last time. The doctor said the fracture was getting along fine but that it would take a little time. He told plaintiff to exercise his hand all he could. However, the pain continued, so on January 10th plaintiff went to Bismarck to secure further attention. He consulted a chiropractor who took an X-ray picture of the arm and thus it was ascertained that there was and had been no union of the broken bone. The chiropractor advised him to consult a surgeon and go to a hospital. He did so. It then appeared necessary to resort to surgery and open up the arm. On January 16th the surgeon operated on the arm. He removed bone splinters which were in the fracture, and owing to the time which had transpired since the break it was necessary to remove enough of the broken ends of the bone to insure circulation and provide a place for a callous to form so as to make a union possible. This was done and the bone was reset and ultimately a union was formed. But the mended bone was not straight and the arm was crooked and stiff and McDonnell was unable to use it as much or as efficiently as before the accident. Thereupon, claiming negligence on the part of the defendant, he brought this action for damages. In his complaint he set out the fact of the accident and injury; his employment of the defendant as a physician and surgeon; that the defendant had negligently and unskillfully treated the arm; that by reason of such negligence and lack of skill he suffered additional pain, was put to great inconvenience, caused to incur additional expense for medical and professional care, and his arm was permanently crippled. The defendant, answering, admitted he was employed to treat the plaintiff but denied any negligence on his part. He further alleged that he had used and exercised reasonable and proper professional skill and care and that if the plaintiff suffered any damage and injury by reason of an unfavorable result the same ensued because of negligence on the part of the plaintiff in failing to follow directions with respect to the use and care of the arm. The case was tried to a jury. The plaintiff had a verdict. The defendant having laid the proper foundation therefor, moved for judgment notwithstanding the verdict or for a new trial. The court granted the motion for judgment notwithstanding the verdict and judgment was entered accordingly in favor of the defendant. Plaintiff now appeals.
The plaintiff contends that the record establishes negligence on the part of the defendant in the reduction of the fracture and the setting of the bone; that even if there was no negligence in the first instance that there was in the treatment of the injury after the bone had been set; that as a proximate result and consequence of such negligence the plaintiff suffered damage so as to warrant the verdict returned. On the other hand, the defendant insists that the record fails to establish any negligence on his part either in the first instance or in the subsequent treatment of the case; that even though a finding of negligence is warranted by the record, there is no evidence that such negligence resulted in any damage or injury to the plaintiff; that the plaintiff himself was guilty of contributory negligence in failing to observe the directions given to him by the defendant as to the use and care of the injured arm.
There is much conflict in the testimony with respect to both the questions of negligence and contributory negligence. But the plaintiff had a verdict and in considering the propriety of the court's action in granting the motion for judgment notwithstanding we must accept that version of the facts sustainable on the record which is most favorable to the plaintiff. Stoskoff v. Wicklund, 49 N.D. 708, 193 N.W. 312.
In considering the questions presented on this appeal we must do so in the light of certain well established rules which it may be advantageous to state at this time. First, the burden is on the plaintiff to establish by competent evidence actionable negligence on the part of the defendant and damages proximately resulting therefrom. Stoskoff v Wicklund, supra; Ramberg v. Morgan, --- Iowa, ---, 218 N.W. 492; Holton v. Burton, 197 Wis. 405, 222 N.W. 225. Next, a physician is required to exercise only such reasonable and ordinary care, diligence and skill in treating his patient as are ordinarily possessed and exercised by physicians practicing in similar localities in the same general line of practice. Dolan v. O'Rourke, 56 N.D. 416, 217 N.W. 666; Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480; Hanson v. Thelan, 42 N.D. 617, 173 N.W. 457. A patient cannot recover in an action against his physician for damages for malpractice if he has not conformed to all reasonable directions of such physician or if his conduct has...
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