Potter v. Warner

• Decision Date: 10 November 1879
• Citation: 91 Pa. 362
• Parties: Potter v. Warner.
• Court: Pennsylvania Supreme Court

91 Pa. 362

Potter v. Warner.

Supreme Court of Pennsylvania.

November 10, 1879

October 17, 1879

1. Where a physician or surgeon takes the charge of a patient he assumes an implied obligation to treat the case with reasonable diligence, carefulness and skill.

2. The measure of professional skill which a physician is bound to exercise does not depend on whether or not he refused the proffered assistance of other medical men.

3. It is the duty of the patient to submit to the treatment prescribed, and to follow the directions given, provided they be such as a physician of ordinary skill would adopt or sanction.

4. If the contributory negligence of the patient united in producing the injuries complained of, the physician is not liable in damages therefor, and this rule applies to unnecessary pain and protracted illness as well as to a permanent deformity of a limb.

5. If the parents of the patient, who also were in charge of and nursed him did not obey the directions of the physician in regard to his treatment and care, and thereby contributed to the injuries, the patient cannot recover

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ.

GREEN J., absent.

Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 115.

This was an action on the case, brought by John Warner, a minor by his next friend, Albert Warner, against Dr. J. D. Potter for alleged negligence and want of skill on the part of the defendant, a physician and surgeon, in the treatment of an injury received by the plaintiff.

The plaintiff, on November 21st 1872, when about the age of eight years, while playing about the track of a coal company in the city of Pittsburgh, was knocked down and run over by a coal car, the wheel of which passed over his left leg, crossing to the outside, about the ankle, and passed up the outside of the leg until it reached the knee, where it passed in and cut the tendons, muscles and ligaments on the outside of the knee.

The declaration first alleged a fracture of the bone near the knee, which was treated by the defendant as a flesh wound afterwards an additional count was filed, by leave of court, alleging that there was a dislocation treated as a flesh wound; and afterwards, at the close of the trial, an additional count was filed, alleging carelessness and want of skill, by which a permanent injury was produced.

The evidence of the man pushing the car at the time of the accident was that the upper and lower leg moved past each other sideways at the knee, when the boy attempted to stand up. The testimony of the defendant was that there was no dislocation; that he examined for dislocation, and was able to decide positively, because the wound was an open one.

There was no other testimony relating to the question of dislocation, except that of some of the experts produced by the plaintiff, who, on an examination six years after the accident, testified that there was a partial dislocation of the knee-joint at the time of the accident.

The experts produced by the defendant were as positive that there was no dislocation then, and was none at the trial, but that the present deformity was the gradual result of a drawing by the anterior and internal muscles of the leg, without the counter-action of the external and posterior muscles and tendons which were destroyed by the accident, and by constitutional trouble weakening the joint and delaying the healing process, and had been increased by the weight of the boy's body on the leg for several years.

The plaintiff's witnesses agreed that the leg, when the defendant was discharged from the case, was about straight and in a natural position, but that the deformity has been increasing daily since then.

There was no testimony to show that there had been an increase of pain and suffering during the attendance of the defendant, or that his treatment was improper, if this wound was what he claimed it to be, a flesh wound, and not a dislocation.

There was testimony tending to show carelessness and a failure to comply with the directions of the defendant on the part of the parents of the boy, and also showing a careless use of the limb by the boy after he commenced to walk.

At the trial, before White, J., the plaintiff submitted the following points, to which are appended the answers of the court:--

1. That if they believe from the evidence that the plaintiff, John Warner, after the reception of his injury, and having received from the defendant, Dr. Potter, medical attendance for said injury for a period of fourteen or sixteen weeks, was himself or through his parents, directed to leave his bed and go out on crutches without any splinters or apparatus to maintain the leg in a straight position, then the defendant would be liable for unskilful treatment, if the testimony of the medical experts is to be believed.

Ans. " This point is affirmed, if the jury find from all the evidence that the permanent deformity resulted directly from going out on crutches without supports to the limb."

2. That if they believe there was, at the time Dr. Potter was called to attend plaintiff's injury, a dislocation, either total or partial, of the knee-joint, then the plaintiff would be liable for unskilful treatment.

Ans. " Affirmed."

3. That if the jury believe the defendant refused the proffer of plaintiff's parents of the assistance of other medical men in the treatment of plaintiff's injury, then he is liable for any damage that may have resulted to the plaintiff, by reason of his want of skill, if any such want there was.

Ans. " Affirmed."

Defendant's fifth point was as follows:

That if the jury believe that the parents of the plaintiff were in charge of and nursed the plaintiff during his sickness, and did not obey the directions of the defendant in relation to the care and treatment of the plaintiff during his illness, but on the contrary, disregarded his said directions, and that this contributed to the present condition of plaintiff's leg, then that their verdict must be for defendant.

Ans. " Affirmed as to the permanent injury to the leg."

In the general charge the court, inter alia, said:

" A professional man is responsible for any lack of proper knowledge, care and attention on his part, in the performance of his duty, the same as a mechanic is responsible for negligence in the performance of

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