McGuire v. Rix
| Decision Date | 03 May 1929 |
| Docket Number | 26473 |
| Citation | 225 N.W. 120,118 Neb. 434 |
| Parties | ETTA D. MCGUIRE, APPELLANT, v. RUDOLPH RIX ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
In an action for malpractice in reducing a comminuted fracture of an astragalus, defendants are not held to a higher degree of skill than that ordinarily possessed and exercised by physicians and surgeons in the community.
Where physicians and surgeons made unsuccessful efforts by manipulation and extension to replace a dislocated fragment of an astragalus, it was a question of professional judgment whether to proceed further by that method or resort to an operation, under circumstances outlined in the opinion.
In an action against licensed, skillful physicians and surgeons for malpractice, the presumption is that they performed their professional duties with the requisite degree of skill and care, in absence of evidence to the contrary.
In an action for malpractice in reducing a comminuted fracture of an astragalus, plaintiff does not raise a question for the jury by proving that defendants immediately resorted to an operation after unsuccessful efforts by manipulation and extension, where they pursued a course sanctioned by the weight of evidence and authority as shown by testimony of experts and standard works on surgery, though it was the opinion of another expert that there should have been a delay of several days before the making of an incision.
Consent of a patient to an operation by surgeons may be implied from circumstances.
To make a case for damages in an action for malpractice, the burden is on plaintiff to prove actionable negligence that was the proximate cause of an injury pleaded .
In an action for malpractice, a trial court may permit an expert witness to give reasons for an opinion expressed by him.
In an action for malpractice, physicians and surgeons are not liable for negligence because they pursue one rather than the other of two generally recognized methods of practice or treatment.
Appeal from District Court, Douglas County; Troup, Judge.
Action by Etta D. McGuire against Rudolph Rix and others. Judgment of dismissal, and plaintiff appeals. Affirmed.
John A. McKenzie and Seymour Smith, for appellant.
McGilton & Smith, Kennedy, Holland, DeLacy & McLaughlin and Gaines, Van Orsdel & Gaines, contra.
Heard before ROSE, GOOD, EBERLY and DAY, JJ., and REDICK and SHEPHERD, District Judges.
This is an action to recover $ 100,000 in damages resulting from alleged malpractice by John E. Simpson and Rudolph Rix, physicians and surgeons, defendants, in reducing and treating a comminuted fracture of the astragalus of plaintiff's right ankle and for alleged negligence of the Lord Lister Hospital, defendant, in caring for plaintiff while a patient therein. In the answers of defendants, the actionable negligence pleaded by plaintiff in her petition was denied. At the close of the evidence after a protracted and spirited trial, the district court directed a verdict in favor of defendants. From a judgment of dismissal, plaintiff appealed.
It is clear that actionable negligence of the Lord Lister Hospital, defendant, was not shown and for that reason the dismissal as to it is affirmed. The word "defendants," when hereinafter used to designate parties to the action, will refer to Simpson and Rix.
In the brief for plaintiff and at the bar, her counsel made a formidable argument on the assignment that the district court erred in directing a verdict in favor of defendants for the asserted reason that the evidence was sufficient to sustain a finding against them on the controverted issue that they negligently failed to make proper efforts to reduce the fracture by external manipulation and extension before resorting to a surgical operation which they performed. This and other questions depending for solution upon the evidence required a careful reading and a critical examination of the entire record, consisting as it does of more than 800 pages.
The conditions confronting defendants and what plaintiff might reasonably expect of them under the circumstances in view of her injuries are material inquiries. Between 8 and 9 o'clock in the forenoon, March 27, 1924, plaintiff was thrown from a wagon drawn by a runaway team of horses. In her fall the astragalus or ankle bone of her right foot was split in two and a large portion, perhaps half of it, was forced out of the ankle joint or socket. The dislocated fragment lodged under and distended the outer skin of the foot. She was carried into her house. Simpson was called immediately, responded promptly, examined the injured ankle, administered an anaesthetic and by external manipulation and extension made a futile attempt to force the dislocated fragment of the astragalus back into place. Being unable to reduce the fracture in that manner, he put plaintiff in his automobile and drove rapidly to the Lord Lister Hospital, Omaha, where she received hospital care. To assist him Simpson called Rix, an expert in surgery. Shortly after plaintiff's arrival a hospital expert made X-ray pictures of the injured ankle and afterward explained them and the nature of the injuries to both defendants. The pictures disclosed the dislocated fragment and also several fractures of that part of the crushed astragalus remaining in the socket. Simpson was a learned and skilful physician having a long experience in his profession. Rix was likewise qualified as an expert in surgery. They were confronted with a rare, complicated, serious injury. The exercise of the highest possible degree of professional skill and care in a case like plaintiff's might nevertheless result in a stiff ankle or in the loss of the entire foot. Infection or blood poisoning might result fatally in spite of professional services performed with the requisite degree of skill and care regardless of the course pursued. In view of the known injuries after an examination of the X-ray pictures, the professional learning of defendants warned them in advance that the fascia or capsule of the ankle joint already contained a slit through which a dislocated fragment with a rough edge had been violently forced as a result of plaintiff's fall--injuries involving other bones of the foot and also of the leg, including the tibia or shinbone which supports the weight of the body. The lacerations caused by the fracture and dislocation gave their own warning of injury to muscles, ligaments and tendons essential to the articulation of the ankle joint. Thus partially outlined, the situation confronting defendants and appreciated by them is conclusively shown by uncontradicted evidence.
After Simpson gave Rix a history of the case and explained the unsuccessful effort in the first instance to replace the dislocated fragment of the astragalus and after both defendants had studied the X-ray pictures with the X-ray expert, the ankle was examined about 5:30 in the afternoon on the day of the accident, while plaintiff was on the operating table under the influence of an anaesthetic. Witnesses called by plaintiff herself testified that Simpson in the presence of Rix worked on the ankle in the operating room of the hospital before any incision had been made. Defendants testified in effect that without success they exhausted the remedy by manipulation and extension and that further efforts by that method would have improperly exposed the injured muscles, ligaments, tendons and other tissues to the danger of additional lacerations and of infection. Defendants testified also that they used their...
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