Richeson v. Roebber
| Decision Date | 16 December 1941 |
| Docket Number | 37699 |
| Parties | George E. Richeson, Appellant, v. H. M. Roebber |
| Court | Missouri Supreme Court |
Rehearing Denied March 13, 1942.
Appeal from Ste. Genevieve Circuit Court; Hon. Frank K Fenwick, Judge.
Reversed and remanded.
R. E Kleinschmidt and Edgar & Matthes for appellant.
(1) Malpractice is bad practice, either through lack of skill or negligence to apply it if possessed, and a physician may be liable if he pursues the wrong method of treatment, or if he prematurely, and without notice, discharges his patient, or if he knowingly and falsely assures the patient that he has been properly treated, thereby preventing the patient from seeking proper treatment elsewhere. 48 C. J., p. 1112, sec. 100; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938; Owens v. McCleary, 281 S.W. 682; Cazzell v. Schofield, 8 S.W.2d 580; Chilton v. Ralls, 286 S.W. 718; Gunter v. Whitener, 75 S.W.2d 588. (2) The defense that a defendant physician in malpractice case failed to properly set broken leg of patient because latter would not submit to operation constitutes a plea of contributory negligence, with burden of establishing such defense resting on the defendant. Summers v. Tarpley, 208 S.W. 266; 48 C. J., p. 1144, sec. 153. (3) In a malpractice case when the results of the treatment are of such character as to warrant the inference of want of care from the testimony of laymen or in the light or knowledge and experience of the jurors themselves, expert testimony is not necessary in order to make a submissible case on the issue of improper treatment. 48 C. J., p. 1151, sec. 157, note 39. (4) The general rule is that expert testimony is measured by the same standards as that of a lay witness, expert testimony should receive just so much weight and credit as a jury may deem it entitled to when viewed in connection with all the circumstances, and therefore, even in a malpractice case, a plaintiff is not ordinarily required to produce expert testimony before he makes a submissible case. Scanlon v. Kansas City, 28 S.W.2d 84; Seewald v. Gentry, 286 S.W. 445; Hoyberg v. Henske, 153 Mo. 63. (5) In any case the trial court, in passing on demurrer to evidence, should review plaintiff's evidence and resolve all favorable inferences which might be legally drawn therefrom in light most favorable to plaintiff and should reject defendant's evidence unless favorable to plaintiff. Parton v. Phillips Petroleum Co., 107 S.W.2d 167; Gilliland v. Bondurant, 59 S.W.2d 679; Cento v. Security Bldg. Co., 99 S.W.2d 1; Barken v. Kresge Co., 117 S.W.2d 674; Brown v. Thompson, 108 S.W.2d 423.
Jerry B. Burks for respondent.
(1) The petition charges specific acts of negligence. In such case it is incumbent on plaintiff to prove the allegations. In this he failed. The doctrine of inferred negligence or res ipsa loquitur has no application in such cases. Pate v. Dumbauld, 298 Mo. 435, 250 S.W. 49; Bogrees v. Wabash Ry. Co., 266 S.W. 333; Porter v. St. Joseph Ry., L., H. & P. Co., 311 Mo. 66, 277 S.W. 913; Roscoe v. Met. St. Ry. Co., 202 Mo. 576; Williams v. Tarter, 151 S.W.2d 783. (2) Failure to cure or to obtain a good result is alone no evidence of negligence. McDonald v. Crider, 272 S.W. 980; Coffey v. Tiffany and Howard, 192 Mo.App. 455; Rothschild v. Barck, 324 Mo. 1121, 26 S.W.2d 760. (3) There was no evidence to prove that defendant was negligent in using the skeletal traction method of setting the leg, nor was there any evidence that he failed to properly treat the patient. Expert evidence, under the pleadings, was necessary to show negligence, if any. Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 600; Davis v. Grissom, 103 S.W.2d 466; Spain v. Burch, 169 Mo.App. 94. (4) Plaintiff took the deposition of defendant and, then read part thereof in evidence. Having done so, plaintiff vouched for the credibility of said evidence. Security State Bank v. Peck, 159 Mo.App. 171; Woelfel v. Conn. Life Ins. Co., 112 S.W.2d 865. (5) Defendant had the right under the circumstances to use his own best judgment as to the method of reduction and treatment of the broken leg. There was no proof that he failed so to do. Bailey v. St. Louis-S. F. Ry. Co., 296 S.W. 477; Heier v. Funsch, 61 S.W.2d 253; Spain v. Burch, 169 Mo.App. 94; Trask v. Dunnigan, 299 S.W. 116; Snyder v. St. Louis & Southwestern Ry. Co., 228 Mo.App. 626, 72 S.W.2d 504; Merryman v. Bunch, 145 S.W.2d 559. Moreover, plaintiff, having failed to reply to the answer of defendant, the same stands admitted.
Westhues, C. Bohling and Barrett, CC., concur.
Appellant filed this a malpractice suit in which he asked damages in the sum of $ 20,000.00 from the defendant for alleged negligence in treating plaintiff's leg which was broken in a car accident. At the close of plaintiff's case the trial court directed a verdict for the defendant and from the judgment entered plaintiff appealed.
The sole question for our review is whether plaintiff made a submissible case for a jury. Respondent in his brief, under point one, stated:
One of the charges in the petition reads as follows:
"Plaintiff further states that defendant negligently, carelessly and unskillfully pursued and employed the wrong method of treatment of plaintiff's said injury for a period of about 8 weeks, at said hospital, in that he failed and neglected to properly operate and set and align the bone but, instead, merely attached weights to plaintiff's said leg, which method of treatment failed to bring about a proper alignment in plaintiff's said leg, . . ."
The defendant in answer to the above charge stated in his answer:
"Further answering, defendant states that at and prior to the time he undertook to adjust and treat the broken leg of defendant, and at divers times thereafter, he advised plaintiff that an operation on his leg was necessary to obtain or approximate a good result, union and alignment of the broken bones of his leg, and urged plaintiff to submit to an operation; that plaintiff declined and refused to permit defendant to operate, and so defendant states and charges the fact to be, that if there was an improper or insufficient union, or alignment, of the bones of plaintiff's leg, as alleged, the same was the direct result of plaintiff's refusal to permit an operation, . . ."
Defendant's deposition was taken and plaintiff introduced a portion thereof in evidence. In this deposition the defendant testified to the following:
Plaintiff was injured on July 10, 1938. The X-ray photograph of which defendant spoke in his deposition was taken on July 19, 1938. Plaintiff was twenty-two years of age when injured. He testified that after being treated by the defendant for several months he went to St. Louis to the Missouri Baptist Hospital where a Dr. Kleinfelter performed an operation and properly treated and set his leg with good result. An X-ray photograph of plaintiff's leg, taken at the St. Louis hospital previous to the operation, was introduced in evidence. This photograph revealed that the broken bone had not been set or aligned.
It is our opinion that the defendant's answer and his evidence constituted an outright admission that he used a method of treating plaintiff's leg which he knew at the time was not proper and would not bring about a satisfactory result. It amounts to a confession and avoidance. Plaintiff, as well as his father, emphatically denied that plaintiff refused to submit to an operation as claimed by the defendant, and that the defendant at any time suggested an operation as stated in his answer and deposition. Whether or not plaintiff refused to submit to an operation and whether ...
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