Nickerson v. Gerrish

• Decision Date: 03 January 1916
• Citation: 114 Me. 354,96 A. 235
• Parties: NICKERSON v. GERRISH.
• Court: Maine Supreme Court

96 A. 235

114 Me. 354

NICKERSON

v. GERRISH.

Supreme Judicial Court of Maine.

Jan. 3, 1916.

On Motion from Supreme Judicial Court, Cumberland County at Law.

Action by Thomas J. Nickerson against Frederic H. Gerrish. Verdict for plaintiff, and defendant moves for new trial. Denied conditionally.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

White & Carter, of Lewiston, for plaintiff. Thomas L. Talbot, of Portland, for defendant.

KING, J. Action on the case for malpractice against a physician for negligently and unskillfully diagnosing and treating the plaintiff's injuries to his right leg as a sprain only, when in fact both bones were fractured. A verdict for $5,000 was returned, and the case comes up on motion for a new trial based upon the grounds that the verdict is against the weight of the evidence, and that the damages are excessive.

On January 5, 1914, the plaintiff, who then was and now is superintendent of transportation of the Maine Central Railroad Company, while walking in the roundhouse at Kineo, stepped unawares into an ash pit, so called, about three or four feet deep, striking his full weight on his right foot flat on the brick bottom of the pit, and thereby fractured both bones of his right leg, the fibula and tibia, about three inches above their lower ends. He was immediately placed in the private car of the general manager of the railroad and taken to Bingham, where his leg was examined to some extent in the car by one Dr. Brown, who applied a temporary dressing to it until the plaintiff should reach Portland, where he lived, and receive other surgical and medical treatment. On arriving at his home in Portland, about eight hours after the accident the plaintiff was attended by the defendant, who diagnosed his injuries as a sprain and administered treatment accordingly. Subsequently he visited the plaintiff six times, the last visit being January 14th or 15th. At that time the plaintiff was on crutches and suffering considerable pain; but, at his suggestion that he wished to get back to his office, the defendant advised that he might do so. The defendant did not see the leg again until February 4th, when the plaintiff called at his office, and it was then "obvious to the eye," to use the defendant's words, that there had been a fracture as the result of the accident. The defendant did not, however, inform the plaintiff of that fact, or then propose any treatment to reduce the fractures, but, as he says, advised him to have the leg massaged and report in three days. On the evening of the same day, Wednesday, the plaintiff consulted another physician, and an X ray picture of the leg was taken. The next day the defendant was paid for his services and discharged from the case. On Friday, after a consultation of physicians, the plaintiff went to St. Barnabas Hospital in Portland, where, on the following morning, an operation was performed on his leg by cutting down upon the bones, removing the fibrous tissue adhering to the ends of the fractured parts, bringing the scraped ends of the broken bones together in normal alignment as near as possible, and putting the leg in proper splint and dressing. He remained at the hospital two weeks, was then removed to his home, and his leg kept in the splint for four weeks more, after which it was put in a plaster cast for six weeks. Since the cast was taken off the leg has been massaged professionally, with daily treatments for about two months and thereafter with two or three treatments a week.

The principles of law applicable to the case are well established and not in dispute. A physician impliedly agrees with his patient that he possesses that reasonable degree of learning and skill in his profession which is ordinarily possessed by other physicians under like conditions, that he will use his best skill and judgment in diagnosing his patient's disease or ailment and in determining the best mode of treatment, and that he will exercise reasonable care and diligence in the treatment of the case. Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117; Ramsdell v. Grady, 97 Me. 319, 54 Atl. 763.

The defendant is admittedly a physician of eminent learning and skill in his profession, and the plaintiff predicates his right to recover in this action on the contention that, notwithstanding the defendant's qualifications, he did not give to his case the exercise of his best knowledge and skill, but carelessly and negligently examined his leg, and thereby failed to discover the fractures which he would have discovered had he exercised reasonable care and diligence.

The defendant, on the other hand, contended that he made a careful and painstaking examination of the leg by manipulating it, by testing for crepitus, for deformity, and for any preternatural movements, using his best knowledge, skill, and judgment to determine the nature of the plaintiff's injuries and to detect any evidence of fracture, and that he was unable to find any, and that thereafter during his treatment of the plaintiff he discovered nothing indicating to him that his diagnosis was wrong, until his examination of the leg on February 4th, when the fact of the fracture was obvious.

The plaintiff not only contended that the defendant did not make a reasonably thorough and careful examination of the leg by manipulation or otherwise, but he also strongly urged that the defendant was remiss and negligent relying upon an examination by manipulation under the circumstances, and that he should have had an X-ray picture of the leg taken as suggested to him, and which all admit would have disclosed the fractures. And upon this point there was testimony introduced by and in behalf of the plaintiff from which...