McGraw v. Kerr

• Decision Date: 16 December 1912
• Citation: 23 Colo.App. 163,128 P. 870
• Parties: McGRAW v. KERR.
• Court: Colorado Court of Appeals

128 P. 870

23 Colo.App. 163

McGRAW v. KERR.

Court of Appeals of Colorado

December 16, 1912

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by Clayton Price Kerr against Henry R. McGraw. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Cunningham and Morgan, JJ., dissenting.

William J. Miles, of Denver, for appellant.

George S. Redd, George Stidger, and Horace G Benson, all of Denver, for appellee.

KING J.

Appellee brought suit to recover damages for injuries alleged to have been caused by the malpractice of the defendant, a physician and surgeon residing in the city of Denver. The complaint alleged that on June 23, 1907, plaintiff broke his arm near the shoulder; that he employed defendant to set the arm and treat the injury; that defendant failed to make proper examination of the arm to determine the nature of the injury failed to properly diagnose the case as a fractured arm, but diagnosed it as a dislocation of the shoulder, and failed to properly set the fractured part of the arm, by reason of which plaintiff suffered severe pain and the arm was permanently shortened and weakened. Answer and reply were duly filed. Upon the issues made, trial was had, verdict returned, and judgment rendered for the plaintiff in the sum of $800. Defendant challenged the sufficiency of the evidence to establish his negligence or want of skill and injury resulting therefrom, by motions for a directed verdict in his favor made both at the time plaintiff closed his case in chief and when all the testimony had been taken, and by motion for a new trial. That question, together with errors assigned for refusal to give certain instructions tendered, and for giving one to which objection was made, will be considered.

The evidence shows that plaintiff fell from a horse and thereby fractured his right arm. A physician was called who, within an hour of the time of the accident, examined the arm, pronounced the injury a dislocation of the shoulder, bandaged the arm, bound it to the body, and, for lack of facilities at that place, advised that plaintiff (a boy five years of age) be taken to Denver for treatment. Next day, June 24th, defendant was called, heard the history of the case, and was told by the boy's father of the diagnosis made by the other physician, and that he claimed to have reduced the dislocation, or, as the father expressed it, "pulled it back into place." Defendant examined the arm visually, and by feeling and manipulation found it swollen and painful; stated that it would be better to let the boy get over the shock before anything further be done, and that he would reduce the swelling and then could determine positively what the trouble was; recommended an X-ray, but said he would not put the father to that expense until he deemed it necessary, and that, if he deemed it necessary to have an X-ray picture taken in order to ascertain the true condition, he would advise the father. The arm was rebandaged and complete rest and quiet directed. Defendant testified that he rendered the arm immobile by use of a small splint, but this was denied. Thereafter, for a part of the time only, the arm was in a sling. Defendant examined the arm daily, feeling of and manipulating the same, and on several occasions applied electricity for treatment of the nerves or for the purpose of diagnosis. The swelling continued for some days--about one week according to testimony on behalf of plaintiff, and longer according to the defendant. July 8th defendant discovered the fracture and immediately ordered an X-ray picture of the parts, which was taken the same day by a specialist in such work, a physician and surgeon of many years' experience and practice, and in the presence of defendant and the father and mother of plaintiff. The skiagraph verified defendant's diagnosis, and showed that the ends of the fractured bone were not in exact apposition; only about three-fourths of the ends butting against each other. There was no lapping of the parts longitudinally. Plaintiff's father was then told the condition of the arm by both physicians, that they had detected crepitus (a grating or rubbing together of the ends of the bone, which both testified conclusively proved that union had not then taken place), and both advised that the fracture be reduced under anaesthetics, and that, if found necessary, a silver wire be inserted to hold the pieces in place. The fracture was of the surgical neck of the humerus about one or one and one-fourth inches from the rim or head of that bone. Defendant arranged to take plaintiff next day to a hospital for an operation which it was understood he was to perform. But that night or early next morning defendant was discharged by plaintiff's father and had no further connection with the case. July 10th or 11th another skiagraph was taken by direction of Dr. Aubrey Williams of the medical staff of the county hospital, and on the 15th an examination of the arm was made by him and another physician. Dr. Williams, plaintiff's witness, testified that on the 15th he found considerable union had taken place, cartilaginous union, beginning to ossify; that he found a good surgical result; that the condition would not impair the usefulness of the arm, and so advised the father, and did not advise any further attempt to reduce the fracture. Another doctor called as an expert by plaintiff testified that in cases of known fracture, such as shown by the second skiagraph, the usual practice among physicians and surgeons was to bind the arm in splints, or render it immobile by a plaster cast. All expert testimony was to the effect that it is difficult to detect a fracture at the point where this was found, or to differentiate between a fracture and a dislocation after the arm had become swollen. The testimony for plaintiff showed that at the time of the trial a lump existed at the point where the bone was broken, and that in bad weather the boy favored that arm (from birth the boy was left-handed); that the bone was misshapen in that the union was somewhat angular. There was no evidence that the arm was shortened or the bone weakened, but, on the contrary, that the bone is denser and stronger than before. There was evidence that the action of the muscles may be interfered with by the angular union, that the contour of the shoulder is not perfect, and that the arm hung in an unnatural position as compared with the other arm.

The question for determination was whether the defendant was guilty of negligence or want of skill in diagnosing and treating the injury during the time he had charge of the case, from which the injury complained of, if established, was caused.

In determining the liability of a physician and surgeon, certain rules applicable to this case are well established by consensus of authorities:

(1) In the absence of a special contract otherwise providing, a physician and surgeon employed to treat an injury impliedly contracts that he possesses that reasonable degree of learning and skill ordinarily possessed by others of his profession, and that he will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the purpose for which he is employed, and that he will use his best judgment in the exercise of his skill in deciding upon the nature of the injury and the best mode of treatment. Burnham v. Jackson, 1 Colo.App. 237, 28 P. 250; Jackson v. Burnham, 20 Colo. 532, 39 P. 577; Bonnet v. Foote, 47 Colo. 282, 285, 107 P. 252; 2 Thomas on Negligence, 2183.

(2) He does not undertake to warrant a cure and is not responsible for want of success, unless that want results from failure to exercise ordinary care, or from his want of ordinary skill. Burnham v. Jackson, supra; Bonnet v. Foote, supra.

(3) If he possesses ordinary skill and exercises ordinary care in applying it, he is not responsible for mistake of judgment. Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L.R.A. (N.S.) 712; Bonnet v. Foote, supra; Fisher v. Niccolls, 2 Ill.App. 484; Sims v. Parker, 41 Ill.App. 284; Wurdemann v. Barnes, 92 Wis. 206, 66 N.W. 111; Dye v. Corbin, 59 W.Va. 266, 53 S.E. 147.

(4) The skillfulness of a physician in diagnosis and treatment should be tested by the recognized rules of his own school, and must be determined by resort to the testimony and opinion of experts, not only as to the correct diagnosis, but also as to whether the defendant exercised ordinary care and skill in examining the case and applying the remedies; such opinion to be based upon the facts in evidence. Burnham v. Jackson, supra, 20 Colo. 536, 39 P. 577.

5. The fact that an injured limb is defective after treatment is not evidence of negligence on the part of the physician treating it. Staloch v. Holm, supra; Ewing v. Goode (C.C.) 78 F. 442; Piles v. Hughes, 10 Iowa 579; Bonnet v. Foote, supra; Wood v. Barker, 49 Mich. 295, 13 N.W. 597.

(6) A jury has no right to ignore testimony that has not been discredited and form independent conclusions on matters which require proof beyond their conjectures or opinions. Wood v. Barker, supra; Wurdemann v. Barnes, supra.

(7) A patient is bound to submit to such treatment as his surgeon prescribes, provided the treatment be such as a surgeon of ordinary skill would adopt or sanction. If he will not, his neglect is his own wrong or mistake for which he has no right to hold his surgeon responsible. McCandless v. McWha, 22 Pa. 261, 268; Haire v. Reese, 7 Phila. (Pa.) 138; Carpenter v. Blake, 75 N.Y. 12, 20.

Applying these rules, we will first determine whether the testimony was submitted to the jury under instructions which correctly define the law applicable to the case.

1. Defendant...