Nelson v. Farrish
| Decision Date | 01 August 1919 |
| Docket Number | 21,245 |
| Citation | 173 N.W. 715,143 Minn. 368 |
| Parties | P. A. NELSON, AS FATHER OF AND FOR THE BENEFIT OF ISABEL NELSON, A MINOR v. ROBERT C. FARRISH AND ANOTHER |
| Court | Minnesota Supreme Court |
Action in the district court for Martin county to recover $20,000 for malpractice. The separate answers alleged negligence on the part of the minor and her parents, and that their negligence contributed to and caused any disease with which the minor suffered. The case was tried before Tifft, J., who when plaintiff rested denied defendant Farrish's motion to dismiss the action as to him, and a jury which returned a verdict in favor of defendants. From the order denying his motion for a new trial, plaintiff appealed. Affirmed.
Physician and surgeon -- malpractice -- charge to jury.
1. Action for malpractice in treatment of a child afflicted with osteomyelitis in the radius. It appears that the proper treatment was by operation. The court instructed the jury that, if defendants made a correct diagnosis and advised an operation and it was refused, defend ants were not liable that if they failed to diagnose and treat the child with reasonable skill, and such failure resulted in injury, they were liable for damages. Under the evidence the instruction was proper. The question whether plaintiff had proven that a better result would have followed an operation was in the case. The evidence is such as to sustain a verdict for defendants.
Liability of physician called only on particular occasions.
2. A physician, if called generally, must give continued attention as the condition of the patient requires; if called only for an occasion, he owes no duty to repeat his visit or continue his treatment. The evidence shows that defendant Portmann was called for particular occasions only. This did not affect his liability for what occurred on the occasions of his visits but concerned only the question whether he owed a duty to give continued attendance. He was not liable for what was done by others during his absence.
Evidence of malpractice insufficient.
3. The evidence produced was insufficient to make a case for the jury as to malpractice in the manipulation of the arm.
Appeal and error -- exclusion of evidence insufficient for reversal.
4. The rejection of evidence will not warrant a reversal, unless its admission might reasonably have resulted in a different verdict. The exclusion of certain evidence in this case was not reversible error.
Liability of defendant for son's acts immaterial.
5. Defendant Portmann's son treated the child on occasions and performed an operation. There is no claim of malpractice on his part, and it is immaterial whether defendant Portmann was answerable for his acts.
Assignments of error.
6. Other assignments of error are considered and held to present no ground for reversal.
Wilson Borst, Albert R. Allen and Leo J. Seifert, for appellant.
Dunn & Carlson, Knox & Faber and Moore, Oppenheimer & Peterson, for respondents.
Plaintiff sues as father of Isabel Nelson, 8 years old, for malpractice. Plaintiff resides at Sherburn. On November 11, 1915, Isabel was suffering from osteomyelitis in the radius, a disease of the marrow of the bone. On the twelfth defendant Farrish, a physician of Sherburn, was called to treat the case and he continued to treat it until December 3. The disease grew worse. On November 18, defendant Portmann, a physician of Jackson and former family physician, was called. He attended with Dr. Farrish, examined the arm, and gave directions as to treatment. He did not take full charge of the case, was apparently not expected to return unless called, and, when he left, gave directions that if they "needed him any more to call him." On the twenty-second Dr. Portmann was called again. He came. Dr. Farrish also was present. Dr. Portmann gave some directions as to treatment, but did not come again, and apparently was not expected to come without being called. Dr. Farrish continued to treat the arm. It continued to grow worse and on December 2 Dr. Portmann was again sent for. He was not at home, and, instead, his son Dr. U. V. Portmann came. On December 3 he took the child to a hospital at Jackson, where he and defendant Portmann performed an operation the next day. Dr. Farrish's employment then ceased. In January the parents took the child to St. Joseph's Hospital in St. Paul. There, Dr. Schwyzer performed an operation in the presence of defendant Portmann, and found it necessary to remove the radius, and this was done.
1. It is conceded by all that the proper treatment for osteomyelitis is by operation, consisting in opening the shaft of the bone and affording drainage of the pus and removal of diseased tissue. The charge of plaintiff is that the defendants did not advise or suggest this treatment, that if this had been resorted to promptly the arm would have been saved, but that defendants did not correctly diagnose the case until the disease had progressed so far that the bone was beyond treatment and the use of the arm virtually lost. Defendants contend that they did promptly diagnose the disease and advised the parents of its true nature, and seasonably advised operative relief, and that the parents objected to any operation, until it was too late to save the arm. On this question the evidence was squarely in conflict.
The court instructed the jury that, if the defendants within a reasonable time made a correct diagnosis and clearly advised the parents of the nature of the ailment, and the importance of an immediate surgical operation, and of the result likely to follow a refusal, and that the parents refused to permit such an operation, their verdict should be for defendants, that if they failed to diagnose and treat the child with reasonable and ordinary skill and such failure resulted in the injury complained of, then defendants were liable for damages. We find no error in this instruction. Getchell v. Hill, 21 Minn. 464.
The court further instructed the jury that "the burden is upon the plaintiff to prove by a fair preponderance of the evidence that, notwithstanding an incorrect diagnosis and failure to advise the proper treatment, a different result would have followed, and there would have been a better recovery, if there had been an operation within a reasonable time." Plaintiff's counsel contend that the only defense is that the parents refused to allow the defendants to operate and that it is conceded that an operation would have resulted in a good arm. It is true the doctors claimed that they correctly diagnosed the case, and advised an operation, and that the parents refused, and most of the evidence is devoted to those propositions, and it is true the attorney for defendant Portmann, in his brief in this court, ventures the assumption that an operation would have resulted in a good and usable arm. We are of the opinion, however, that the question whether plaintiff had proven that a better result would have followed an operation, was in the case, and that the court correctly charged the jury on this point. The jury found for defendants. We have examined the voluminous record with much care, and we are of the opinion that there was evidence sufficient to sustain the finding of the jury.
2. A number of other questions are raised. In fact there are 52 assignments of error.
Plaintiff contends that defendant Portmann was employed generally to diagnose, treat and cure, and complains that the court instructed the jury that he was called in consultation with Dr. Farrish. Under the evidence we think the court's...
To continue reading
Request your trial