Nelson v. Nicollet Clinic
| Decision Date | 31 December 1937 |
| Docket Number | 31397. |
| Citation | 276 N.W. 801,201 Minn. 505 |
| Parties | NELSON v. NICOLLET CLINIC et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; A. W. Selover, Judge.
Action by O. H. Nelson against the Nicollet Clinic, Dr. William R Jones, and others. From an order denying plaintiff's motion for a new trial, the plaintiff appeals.
Order affirmed.
Syllabus by the Court .
1. It is not error to strike an answer of a witness, not responsive to question.
2. A physician and surgeon is not liable for injuries unavoidably resulting in spite of the exercise of due care.
3. A party is not liable for negligence unless the alleged injuries are the proximate result of the negligent acts complained of.
4. Evidence examined, and held that a finding of negligence would not be justified as an inference of fact under the doctrine of res ipsa loquitur.
5. Recovery cannot be had in an action for malpractice, for technical assault upon the grounds that the patient did not consent to the treatment administered by the physician and surgeon, where it appears that upon the trial negligence was the only ground of recovery asserted, and right of recovery for such assault and battery was asserted for the first time on motion for new trial.
Louis H. Joss, James O. Caulfield, and Walter A Schweppe, all of Minneapolis (Arthur LeSueur, of Minneapolis of counsel), for appellant.
Cobb, Hoke, Benson, Krause & Faegre and Wright W. Brooks, all of Minneapolis, for respondents.
Plaintiff sued defendants for malpractice and appeals from an order denying his motion for new trial after a directed verdict in favor of defendants. Plaintiff was injured in an automobile accident on December 13, 1933, and was taken to Eitel Hospital, which is operated by the defendant clinic. Defendant Dr. Jones was assigned to plaintiff's case, and undertook to treat plaintiff. It is claimed that defendant Dr. Strachauer assisted him. Dr. Jones found that plaintiff had sustained a fracture of the femur of the right leg where it goes into the hip socket, which is a very serious bone injury, and that, because of plaintiff's condition, it was inadvisable to operate on him until December 18, on which date he set the fracture in what is known as a Whitman cast. This cast was made of plaster of Paris lined with padding. It inclosed part of the body, the upper part of the left leg, and the entire right leg, including all of the foot except the toes. The object of the cast is to get the bones in place and hold them there until the fracture heals. When the cast was applied, plaintiff was informed that it would cause him discomfort and some pain. It caused him severe discomfort, pain, and distress, of which he complained continually. On December 24, the cast was removed and a second cast put on. Plaintiff told the doctors that he did not want the cast to cover his foot because of the severe pain which the first one had caused him; but the doctors applied the second cast in the same manner as the first one. It was necessary to have the cast go over the foot to hold the leg rigid so there would be no rotating which would throw the broken bones out of place and prevent a union by healing. This cast also caused plaintiff severe pain and discomfort, about which he continually complained. On January 11, 1934, it was ascertained that the part of the cast over the foot could be removed without preventing the bones from healing, and the part of the cast was removed on that date. It was then discovered that plaintiff had a pressure sore on the heel, caused by the interference of the cast with the circulation of the blood. It was necessary to then put the leg in a sling, known as a Jefferson Stirrup, so that the pressure sore would heal. The rest of the cast was removed on March 24, 1934. Plaintiff remained in the hospital until some time in October, 1934. During all of the time until June, he was convalescing and making progress.
Plaintiff claims that defendants were guilty of malpractice because the cast was set too tight, thereby restricting circulation of blood so as to cause a pressure sore on the heel of the right foot, which became infected; that plaintiff experienced most severe and extreme pain because the cast was causing the pressure sore, of which he complained; that, if defendants had heeded his complaints, they would have discovered that the cast was causing the sore and pain and could have acted on knowledge thus obtained to prevent the sore, pain, and other injuries that resulted; that defendants ignored the complaints and did not administer proper treatment; that the sore became infected; that the infection spread to the great toe, thence to other parts of the foot, knee, hip, and arm. About June 15 it was discovered that he had an infection in the great toe of the right foot. It was necessary to lance the toe. This did not cure his condition, the infection spread from the toe up to the knee, the hip and arms, and it became necessary to amputate part of the toe in order to remove the infection. The operation was successful in accomplishing this purpose. In addition to the heel sore, pain, and suffering, he claims loss of function in the other toes and large part of the use of the right foot, stiffness of the right knee, and arthritis. No claim is made that a good result in setting the bones was not achieved.
1. Plaintiff's medical expert was asked if he knew whether it is regular procedure for physicians and surgeons not to investigate a Whitman cast for several days after complaints of pain by the patient. He answered the question by giving his opinion upon some matters embraced in the question. The answer was stricken upon motion as not responsive. The question called for a yes or no answer. The answer was not responsive to the question, and the ruling was correct. While we will not reverse, we do not approve the practice of striking material evidence if not responsive. See Jelos v. Oliver Iron Mining Co., 121 Minn. 473, at page 478, 141 N.W. 843.
2. Some of the injuries, such as the pressure sore on the heel and consequent pain and certain stiffness in the limb after the cast was removed, were caused by the treatment employed. Defendants admittedly possess requisite skill and learning as physicians and surgeons. The question is whether or not they were negligent in applying their skill and learning in this case. Plaintiff did not produce any evidence that the practice and procedure pursued by defendants was not in accordance with usual and accepted medical standards, except that his medical expert testified that it is usual practice for doctors to immediately investigate complaints of severe pain in portions of a limb in a cast such as this, and that failure to do so might result in injury to the limb. There was no proof that defendants did not investigate such complaints. Defendants showed affirmatively that they investigated the complaints, evaluated them, and did what they thought should be done under the circumstances. They admitted that the pressure sore on the heel was caused by the cast, and that they neither knew nor had reason to know that plaintiff had or was getting such a sore prior to the removal of the cast. They made an opening in the first cast following such complaints, and found no sore; and, when they removed it, they found no sore prior to putting on the second cast. The toes were permitted to protrude from the cast so that it could be determined if the blood circulation was all right. Frequent examination of the toes indicated good circulation and thus negatived any interference with circulation, which is the cause of pressure sores. The proof also showed without dispute that use of a Whitman cast is an approved method of treatment in such cases; that the highest degree of care was exercised in applying the cast; and that notwithstanding such care in this case, as often happens in other cases, pressure sores unavoidably developed. A certain amount of stiffness in the knee was attributable to the cast. Such stiffness was an after effect of wearing the cast and resulted in this case, as it does in others, in spite of employment of due care and the best methods of treatment. It was temporary and should disappear with the use of the limb. The pain was a necessary and unvoidable incident of wearing the cast, which defendants did everything required by...
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