Peterson v. Branton
| Decision Date | 25 May 1917 |
| Docket Number | No. 20336[148].,20336[148]. |
| Citation | 137 Minn. 74,162 N.W. 895 |
| Parties | PETERSON v. BRANTON. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Kandiyohi County; G. E. Qvale, Judge.
Action by William H. Peterson against B. J. Branton. Judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Order reversed.
Where a patient refuses to submit to the reasonable treatment prescribed by a surgeon, from that time on the fault is with the patient, and not with the surgeon.
Where a patient refuses to submit to the reasonable treatment prescribed by his surgeon, the surgeon may give in evidence his opinion of what the result would have been had the treatment which he prescribed been followed. Durment, Moore, Oppenheimer & Haupt, of St. Paul (Geo. H. Otterness, of Willmar, of counsel), for appellant.
T. O. Gilbert, of Willmar, and Fosnes & Fosnes, of Montevideo, for respondent.
This is an action against the defendant, a physician and surgeon, to recover damages claimed to be the result of negligent and unskillful treatment of a fracture of plaintiff's arm. The cause was tried and submitted to a jury, and a verdict returned for plaintiff in the sum of $4,500. Defendant moved for judgment notwithstanding the verdict or a new trial. The trial court made an order denying defendant's motion for judgment, and also made an order granting the defendant's motion for a new trial, unless plaintiff, within ten days, remit the sum of $1,500 from the amount of the verdict, in which case the motion would be denied. Pursuant to such order, plaintiff filed a remittitur of $1,500 and an agreement to abide by the verdict as reduced, and the defendant appealed from each of such orders.
There is no dispute but that plaintiff is a man of 49 years of age, residing at Willmar, in this state, and that on October 25, 1914, he sustained a fracture of both bones of the right forearm between three and four inches from the wrist, as the result of a collision with a motorcycle on one of the public highways within a few miles of his home, that the defendant, who is a practicing physician and surgeon also residing at Willmar, was immediately called, and that he properly treated the injured arm by the application of splints and bandages, with the object of effecting a reduction of the fracture and a union of the bones.
At the trial plaintiff testified: That defendant reduced the fracture within about two hours from the time of the injury, and that during the following morning and on every second day thereafter for about two weeks he went to the hospital, where defendant removed the bandages and splints, examined the arm by X-ray, a fluoroscope, and otherwise, and then reapplied the splints and bandages, and that at the end of seven or eight days the arm was straight and seemed to be doing all right, that thereafter he visited defendant less frequently, and that at each visit the defendant removed the bandages and splints and examined the arm, and reapplied the bandages and splints in about the same manner, and that about six weeks after the injury he first noticed a lump and that the arm was not straight. There was no testimony that the treatments were improperly performed or that there was negligence in the manner of applying the splints or bandages with reference to extension or otherwise. Plaintiff then called two physicians as expert witnesses. The first, Dr. Jacobs, testified that in the spring of 1916 he took X-ray pictures of the arm which showed a nonunion of the radius. Plaintiff's other expert witness, Dr. Johnson, was then called, and he testified as to having examined plaintiff's arm in the spring of 1916, and that, assuming the testimony of the plaintiff with reference to the frequent removal of the splints by the defendant to be true, and taking into consideration the condition of plaintiff's arm, he would say the treatment was not proper; that it was his opinion that proper extension was overlooked in reapplying the splints. This testimony was all received over defendant's objection. The defendant contended that it is apparent that Dr. Johnson based his opinion upon the result or present condition of plaintiff's arm, and not upon any proof as to how the splints were applied. This contention on behalf of defendant cannot be sustained. In the case of Sawyer v. Berthold, 116 Minn. 441, 134 N. W. 120, it is held that:
‘In an action against a physician to recover damages for negligent or unskillful treatment of a patient, the result alone is not evidence of negligence; but an expert witness may give his...
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