Richards v. Willard
| Decision Date | 15 July 1896 |
| Parties | RICHARDS v. WILLARD. |
| Court | Pennsylvania Supreme Court |
176 Pa.St. 181
RICHARDS
v.
WILLARD.
Supreme Court of Pennsylvania.
July 15, 1896.
Appeal from court of common pleas, Allegheny county.
Action for damages for malpractice, brought by John Richards against L. H. Willard. There was verdict for the plaintiff for $12,000, which was reduced by the court to $4,000, and judgment rendered for that amount. From this judgment, defendant appeals. Reversed.
W. B. Rodgers, for appellant.
Wm. M. Hall, Jr., for appellee.
GREEN, J. This is a case of extraordinary and unusual character. The plaintiff claims damages against the defendant for negligent surgical treatment for an injury to his leg. He alleges that he had sustained a fracture of both bones of his leg at a short distance above the ankle joint and was treated, not for a fracture, but for a sprain, and was thereby greatly injured. It is not claimed that the treatment he received was improper treatment for a sprain, but that it was entirely incorrect and inadequate treatment for a fracture. The defendant denies most positively that there was a fracture, and his testimony is supported by that of two other surgeons who saw and examined the plaintiff's leg on the day, and immediately after, the injury was sustained, and also a number of surgeons who examined it at subsequent times, and testified that in their opinion there never was a fracture. If there was no fracture, the plaintiff has no case. If the subsequent condition of suffering and illness of the plaintiff was produced in whole or in part by acts of contributory negligence on his part, he could not recover, and on both these points the court so instructed the jury. The great controversy in the cause turned upon these two points, and especially upon the question whether or not there ever was a fracture. The singularity of the case arises upon the character of the testimony, and the conflict developed as to the great leading fact. The alleged fracture was declared by the plaintiff's surgical witnesses to be a compound fracture of both bones of the leg, the tibia and fibula, at a point about one and a half to two inches above the ankle joint The fracture of the tibia, or shin bone, was by far the most important. One surgical witness for the plaintiff, Dr. Enfield, testified that he saw the plaintiff for the first time on December 23. 1800, at his office in Bedford,—the accident having occurred on December 5th, at Allegheny City,—and that he readily and in a very few minutes found a complete fracture of both bones. In the fracture of the tibia the lower portion of the bone projected up over the upper portion about half an inch, and made a distinct ridge, easily perceived by the eye, and, of course, by the touch. This was 18 days after the accident. One other surgical witness, Dr. Calhoun, was called in and saw the leg on January 23, 1891. He also testifies that he inserted his finger in a hole in the leg which had been produced by suppuration, and found the ends of broken bones overriding each other, and testified that there was a fracture of the tibia. He knew nothing about the fibula.
The foregoing was the whole of the original surgical testimony given by the plaintiff to establish the fact of fracture. Two other surgeons were examined by the plaintiff, but neither of them saw the leg until long after the accident and they only testified as to general matters connected with or relating to fractures and treatment Their testimony and that of Drs. Enfield and Calhoun constituted the whole of the plaintiff's surgical testimony. All of them, and all of the other surgical testimony in the case, establish that fractures of the tibia are most easily discovered. Generally they are directly visible to the eye without the help of manipulation, but by means of slight manipulation such fractures are detected without the slightest difficulty. The reason is that the tibia has very slight covering over it in the way of muscles, tissue, or flesh. The bone can be readily felt by the fingers over its whole length, and especially near the ankle. One of the surgeons, Dr. Hartmeyer, testifying upon this subject and explaining to the jury why it would be easy to detect such a fracture, said: "Why, simply because the deformity in a fracture of that kind would be so great that to the naked eye of an experienced man the fact would reveal itself at once that the fracture existed, and by manipulating that leg I dare say that it would be impossible for any man under the sun that knows anything about anatomy in the first
place and surgery in the second place to make that mistake. It would be an utter impossibility." Dr. Enfield, the plaintiff's principal witness, was asked: "Q. Now, will you state what, in your experience, and from your knowledge of medical science, is true as to this point of the anatomy, the leg, in reference to the discovery of a fracture at this point? A. They can be discovered more readily than perhaps any other portion of the body. Q. Why is that? A. That is owing to the thin covering of the muscles over the parts, and owing to the fact that there is little swelling takes place in a fracture at this point. The tissues are compact, and not so full of cells, and you can usually by the guide of the bone,—especially the sharp spine that is along the tibia, as a guide,—you can usually discover the fracture in that bone, and there is almost always deformity at this point." There was abundant other testimony to the same effect.
Now, bearing in mind that the establishment of a fracture was an essential and fundamental condition of the plaintiff's right of recovery, it becomes necessary to recur somewhat to the testimony of the defendant. The accident happened at about noon on the 5th of December, 1890. The first surgeon who was called to see the plaintiff after the injury was Dr. McClelland. He said he made a careful examination of the leg in the usual manner,—"by manipulation and the ordinary means employed to make an examination by inspection and manipulation,"—and found that the patient was badly bruised, but there were no bones broken. Being asked, "Was there any fracture, doctor?" he replied, "There was no fracture." He advised that the plaintiff be sent to the hospital, which was accordingly done. Dr. McClelland was recalled later, and said he had examined the plaintiff at the time of the second trial, which was in June, 1893, and had not seen him from the time of his first examination until then. He repeated that there was no fracture at the first examination, and he was then asked a long question, which described the fracture as testified to by Drs. Enfield and Calhoun, and was asked: "Q. Was there ever such a fracture as that on this man's leg? A. I would say not Q. Will you tell the Jury why you say that? A. I say that because there was no evidence of fracture when I saw him first, and I found no evidence of fracture when I examined him last" The next surgeon who saw the plaintiff after the accident was Dr. Marshall, the resident surgeon at the hospital. He went with the ambulance and assisted to remove the patient to the hospital, first making an examination at the place where he found him. After he reached the hospital the patient was undressed and put to bed, and he then proceeded to make a full and thorough examination of the leg, by all the usual and well-known methods practiced by all surgeons in such cases. He compared the two legs for shortness, and manipulated the limb with his hands, following the bones as far as he could. He then examined for crepitus, and then tried it for mobility, by taking hold of it by the heel and twisting it, holding the leg fixed. He was unable to find any evidence of fracture, and diagnosed the case as one of sprain and concussion, and treated it accordingly with hot compresses and hamamelis extract to allay pain and reduce swelling and inflammation. About 4 o'clock the same afternoon Dr. Willard came in, and he also examined the patient, going over all the methods usual in such cases. No evidence of fracture was discovered, and the treatment for subduing Inflammation was continued. The next day Dr. Willard called again, and made another and fuller examination, trying the leg in every way—by comparison for shortness, for crepitus, and mobility, and by tracing the spine of the tibia with his fingers —to see if any evidence of fracture could be discovered. No fracture was discovered, or any evidence of any, and the treatment was continued for sprain and concussion. Dr. Willard himself describes the method of his examination. He says: "The next examination was made, I think, a day or so afterwards, and then the examination was more thorough. I would take the leg in both...
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