Sauers v. Smits

• Decision Date: 04 June 1908
• Citation: 95 P. 1097,49 Wash. 557
• Parties: SAUERS et ux. v. SMITS.
• Court: Washington Supreme Court

95 P. 1097

49 Wash. 557

SAUERS et ux. v. SMITS.

Supreme Court of Washington

June 4, 1908

Appeal from Superior Court, Chehalis County; Mason Irwin, Judge.

Action by G. J. Sauers and wife against Paul Smits for malpractice. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial ordered.

W. H Abel, for appellants.

J. B Bridges, for respondent.

RUDKIN, J.

This action was instituted to recover damages for malpractice. Without going into the details of the complaint, the substance of the plaintiffs' cause of action is that during the early part of the year 1906 the plaintiff Mrs. Sauers was suffering from an ailment of the foot, and applied to the defendant, who is a regularly licensed physician and surgeon, for treatment. The treatment prescribed and administered consisted in the daily exposure of the affected member or part to the light and rays of an X-ray machine for a period of about a month, each exposure lasting from 15 to 30 minutes. After this course of treatment had continued for some two weeks, the foot began to swell itch, and burn. The treatment continued for about two weeks longer, at the expiration of which time the entire left side of the foot from the toe to the heel was severely burned, so that the skin came off and a large angry sore, involving the whole side of the foot, was formed; and, by reason of the treatment prescribed, the foot is permanently injured, the patient has been rendered a cripple for life, and the injury will probably necessitate the amputation of the foot. The negligence charged is that the defendant failed to shield or protect the foot from the X-rays, that he should have discontinued the X-ray treatment as soon as the burning and scalding of the foot made its appearance, and that the tube or bulb of the X-ray machine was placed too close to the foot. Issue was joined on the complaint, and, from a judgment and verdict in favor of the defendant, the plaintiffs have appealed.

Two questions have been presented for the consideration of this court: First, the sufficiency of the evidence to warrant the submission of the case to the jury; and, second, the accuracy of one of the instructions given by the court. The testimony on the part of the appellants tended to show that there were 17 daily exposures of the foot to the X-ray machine, except on one date toward the last when the patient was unable to attend the hospital; that no shield was used to protect the foot from the X-rays; that the tube or bulb of the X-ray machine was placed not to exceed two or three inches from the foot; that the exposures after the first lasted from 25 to 30 minutes; that at the expiration of about two weeks from the first exposure the foot became very red and itched and burned, and that this condition grew gradually worse from day to day until the patient was no longer able to go to the hospital; that thereafter the respondent attended the patient once at the home of her brother-in-law, where she was stopping, but did not call on the following day, and another physician was called in; and that after the fifth exposure to the X-rays a medicated paste was spread over the affected part, which was about the size of a nickel. There was further testimony tending to show that at the close of the respondent's treatment there was an X-ray burn of the fourth degree on the foot which is generally considered incurable. It is unnecessary to refer to the testimony bearing upon the condition of the patient after this time as it would only go to the measure of damages, and that question is not before us. The testimony on the part of the respondent, on the other hand, tended to show that the number of exposures was about 10; that the tube or bulb was placed from 4 to 6 inches from the foot; that the exposures occurred only every other day, and lasted from 8 to 18 minutes; that the red or burnt appearance of the foot was caused by the paste, and not by the X-rays; that the...