Paulich v. Nipple

• Decision Date: 10 May 1919
• Docket Number: 22,148
• Citation: 180 P. 771,104 Kan. 801
• Parties: LOUIS PAULICH, Appellee, v. F. E. NIPPLE, Appellant
• Court: Kansas Supreme Court

180 P. 771

104 Kan. 801

LOUIS PAULICH, Appellee, v. F. E. NIPPLE, Appellant

No. 22,148

Supreme Court of Kansas

May 10, 1919

Decided January, 1919.

Appeal from Crawford district court; ANDREW J. CURRAN, judge.

Order reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PHYSICIANS--Malpractice--Evidence--Expert and Nonexpert Witnesses. The following rule, stated in the syllabus in Sly v. Powell, 87 Kan. 142, 123 P. 881, is applied to the facts in the present case:

"Nonexpert witnesses can testify as to external appearances and manifest conditions observable by any one, but whether a surgical operation has been performed with a reasonable degree of skill, knowledge and care, and whether the patient was thereafter skillfully and properly treated, are questions of science to be established by the testimony of witnesses of special skill and experience, and not by testimony of those who are without special learning and skill as to such operations and practice." (syl. P 1.)

2. SAME. A physician is bound to possess and exercise that degree of skill which is ordinarily possessed by physicians in practice, but where his errors are those of judgment only if he keep within recognized and approved methods, he will not be liable for their consequences.

3 SAME. Negligence of a physician or surgeon cannot be presumed from the mere failure to obtain the best results from an operation or treatment; and in this case, there being no proof of a want of skill or care on the part of defendant, it was error to set aside a judgment in his favor and grant a new trial.

Edwin D. McKeever, of Topeka, and A. H. Carl, of Mulberry, for the appellant.

Thomas W. Clark, of Pittsburg, for the appellee.

OPINION

PORTER, J.:

The action was to recover damages alleged to have resulted from the malpractice of a physician and surgeon. The defendant appeals from an order setting aside a judgment in his favor and granting plaintiff a new trial.

The plaintiff was nineteen years old when he was injured by the fall of a heavy mass of rock from the roof of a mine where he was digging coal. The accident resulted in the fracture of the femur of the right leg, about three inches above the knee.

The petition alleged that defendant was employed to treat the injury and reduce the fracture, and that he negligently permitted the broken ends of the bone to overlap and to remain in that condition; that by means of splints and bandages he improperly and negligently bound up the bones and muscles of plaintiff's leg; that plaintiff, relying on his wrongful assurances that the fracture had been properly reduced, permitted him to continue to treat the injury; and that by reason of the negligent manner in which defendant treated the injury, plaintiff had suffered great pain, and would be obliged to undergo a dangerous and painful operation, necessitating the rebreaking and resetting of the bone by a competent surgeon. The answer was a general denial.

Plaintiff testified that after the injury he was carried home on a door by his fellow employees, and that when the doctor arrived he took a pair of scissors, ripped the trousers, took off the shoe, and bathed the plaintiff, and with the assistance of others reduced the fracture; that after the doctor had finished the manipulation a bed slat was taken and a bed sheet was torn up in strips and rolled up, the bed slat wrapped with cotton and with the bed sheeting, and then bound to the leg with sheeting and adhesive plaster over the strips; and that he was then placed in bed, and a weight consisting of a flatiron fastened to the leg by cords and adhesive plaster, and the weight hung over the end of the bed. The flatiron was offered in evidence. The doctor remained there for about an hour and a half. The plaintiff did not know whether the doctor measured the leg or not at that time. He was asked whether the doctor made an examination of the leg when he returned the next day and on several days following, and answered, "No"; but testified that the doctor raised up the bedclothes and looked at his leg, and told him that he was getting along all right. A week after the accident the doctor was called for the reason that the bandages had become loose on the splint; and, the swelling having gone down, there was play between the leg and the bed slat. Asked what the doctor did, he answered: "He came and took them bandages up and kind-a doubled them down this way and just wrapped some more of that adhesive plaster on top of that. Before that he examined my leg and discovered a knot there, and he said, 'Louis, there is a nice little knot there and your leg is doing fine.'" He testified that the doctor did not call every day, but often stopped when passing; that about seven weeks after the injury the doctor removed the bed slat and bandages, got hold of the foot and raised up the leg, and that the leg bent right at the fracture, bent upward; that the doctor then called for some pasteboard, soaked it in water and bandaged it on, and made plaintiff get up out of bed and stand up, and then he examined the leg. Witness described how the pasteboard was fastened around the leg with gauze bandages and adhesive plaster, but said that he was unable to stand without his crutches; that the doctor measured the leg and remarked, "It is a little short, just about a quarter of an inch short; but that can't be helped; in all these cases there is some shortage"; that about one week later the doctor called and removed the pasteboard splint, and said, after examining the leg, "Louis, you got a good leg on you"; about as good as he expected it to turn out. Plaintiff received his injury on the 17th day of June, 1915, and his testimony is that he did not know the condition of his leg until he had an X-ray picture taken in March, 1916. The picture was introduced in evidence.

The only expert testimony offered by the plaintiff was that of a physician who had lived in that community for fifty years, and who qualified as a skilled physician and surgeon. He testified to the method he employed in reducing a fracture, that various kinds of splints were used; wooden splints that can be molded to the part, various kinds of fiber splints, pasteboard and plaster of Paris, and other forms; and that these have to be changed repeatedly, depending upon indications. His direct examination showed nothing from which a jury would be justified in finding that the method adopted by the defendant was not proper.

On cross-examination he testified that a fracture of a bone near to a joint is serious and difficult to reduce, and described the various methods used to accomplish coaptation, and approved either or any of the various ways that would appeal to the judgment of the surgeon; that with a transfracture there is more or less breaking of the edges of the bone where the injury is caused by direct violence, and that it is very difficult to get the ends to fit in exactly with a smooth result; that sometimes there is an enlargement and most always some deformity follows the union; and that when ossification begins it enlarges around the line where the cement furnished by nature is secreted. His testimony is that very frequently there is a little overlapping and that it is very difficult to prevent, necessitating frequent changes of the splints in order to keep these things from occurring. We quote further from his testimony:

"Q. After all, Doctor, the treatment of a fracture and complications arising afterwards is a matter for the individual judgment of the surgeon treating the case? A. Yes sir, largely.

"Q. And you wouldn't say a surgeon who used a different method than you in reducing a fracture was wrong or guilty of a lack of care and skill? A. No, sir.

"Q. And one surgeon, with the best of care and skill and learning, might adopt one method and another another? A. Certainly.

"Q. And when complications arise one surgeon might follow and adopt one method and another another? A. Yes, sir, and all get good results.

"Q. And none of them get good results? That might occur? A. Yes, sir.

"Q. And as to the necessity of a second operation, that might be a matter of judgment? A. Certainly.

"Q. Whether or not he would undertake a serious rebreaking,...