Pearson v. Norman

• Decision Date: 01 July 1940
• Docket Number: 14613.
• Citation: 106 Colo. 396,106 P.2d 361
• Parties: PEARSON v. NORMAN.
• Court: Colorado Supreme Court

106 P.2d 361

106 Colo. 396

PEARSON v. NORMAN.

No. 14613.

Supreme Court of Colorado

July 1, 1940

Rehearing Denied Oct. 14, 1940.

In Department.

Error to District Court, Pueblo County; Harry Leddy, Judge.

Action by Walter M. Pearson against J. S. Norman for damages allegedly caused by the negligent diagnosis and treatment of a spinal injury which plaintiff had received in a fall.To review a judgment dismissing the case, plaintiff brings error.

Reversed and remanded.

John W Elwell and Riley R. Cloud, both of Pueblo, for plaintiff in error.

Henry H. Clark, of Denver, and Harry S. Petersen, of Pueblo, for defendant in error.

YOUNG, Justice.

Pearson as plaintiff, brought this action for damages against the defendant, Norman, a practicing physician and surgeon alleging careless and negligent diagnosis and treatment of a spinal injury resulting in permanent disability.At the close of plaintiff's evidence the trial court granted defendant's motion for a nonsuit and dismissed the case.Plaintiff here prosecutes a writ of error and contends that there was evidence showing negligence of defendant which should have been submitted to the jury.

The testimony discloses that defendant was engaged to treat plaintiff for injuries resulting from a fall from a roof which occurred April 11, 1936.According to plaintiff, his wife, and son, all of whom testified, defendant advised them that the injury was a bad bruise and shakeup; that he stated to them that plaintiff's back was not broken, and sent him home from the hospital in four days with the assurance that the pain would disappear after a few days rest.This testimony was positively denied by defendant when called by plaintiff for cross-examination under the statute.He testified that he was convinced at the time that plaintiff had a fractured spine; that he did not so advise plaintiff his wife, or son; that plaintiff was treated for a compression fracture while in the hospital; and that he left the hospital on April 15, 1936, over his (defendant's) protest and insistence that further examination and treatment would be necessary.After leaving the hospital plaintiff was in constant pain but received no treatment or medical advice until February 24, 1937, when he consulted an osteopathic physician who sent him to a clinic for X-ray photographs which disclosed the fracture.

The osteopathic physician stated that he only knew the proper treatment for a fractured vertebra from his reading, and that he had had no experience with such; that for 20 years or more he had not specialized in orthopedics or in adjustment of fractured bones; that treatment should have begun as soon as possible after the fracture occurred; that as far as he knew proximation of the fractured fragments was the only method for healing a bone, and that at the time he was consulted it was too late for this method to be used, but that surgical treatment might have been proper; that he knew nothing about the facts in this case or the treatment given by defendant; that a doctor should make an examination and use his judgment as to what should be done, the same as anybody else in a special line, and his judgment should be followed whether right or wrong.The only medical man, other than defendant, to testify was the one who took the X-ray photograph.His testimony was merely to the effect that plaintiff had been sent to him for X-ray examination; that he had taken the photograph and discovered the fracture from it; and that he had recommended a brace.

By the defendant's own testimony...