Sibert v. Boger

• Decision Date: 13 July 1953
• Docket Number: No. 43193,No. 2,43193,2
• Citation: 260 S.W.2d 569
• Parties: SIBERT v. BOGER
• Court: Missouri Supreme Court

Page 569

260 S.W.2d 569

SIBERT v. BOGER.

No. 43193.

Supreme Court of Missouri, Division No. 2.

July 13, 1953.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 14, 1953.

Russell Garnett, Warrensburg, for appellant.

John T. Martin, Sedalia (Martin & Gibson, Sedalia, of counsel), for respondent.

TIPTON, Judge.

This is a malpractice action against the respondent, a physician and surgeon. At the close of appellant's evidence, the trial court directed a verdict for respondent and rendered a judgment for him.

Appellant's petition alleges that on January 5, 1944, she engaged the services of respondent for treatment, examination, advice or surgery for injuries 'resulting from an automobile accident which she had just undergone'; that the relationship of physician and patient between the parties continued until February 16, 1944; that during that period of time she was suffering from numerous injuries; and that respondent so negligently conducted himself in examining and caring for her that he failed and neglected to diagnose and prescribe proper treatment for her injuries. In regard to respondent's examination and diagnosis, her specific charge of negligence is that he neglected to have an X-ray taken of her alleged fractured bones. In regard to his treatment of her, the specific charge of negligence is that he failed 'to prescribe proper splints, braces, casts or other supports for such injured members as she then had, or to have directed plaintiff (appellant) to remain abed, as he should have done under the conditions and circumstances.'

Respondent's answer admits 'that on or about the 5th day of January, 1944, the plaintiff came to the defendant's (respondent's) office to consult him with reference to injuries claimed to have been sustained by her in an automobile collision which occurred on the previous day and that he accepted plaintiff as a patient and did undertake to examine, treat and prescribe for her.' His answer further alleged that this action is barred by the two-year statute of limitations and also because of a settlement negotiated with the other party involved in the automobile collision in which she received her alleged injuries.

Appellant testified that she was married and was a country schoolteacher, and that on January 4, 1944, while driving her automobile to her school, she was involved in a collision with an automobile driven by a man named Callis. Shortly thereafter, she drove her car from the scene of the collision to the schoolhouse where she remained for the day. She then drove her car back to town and took it to a garage. She testified first that she saw the respondent that day but later admitted that she did not go to see him until after her school was out the following day. She continued to teach in the school for ten days or two weeks after her accident without interruption. She then quit teaching.

Appellant testified on direct examination that she went to respondent 'for anything that ailed me and there were a great many things that ailed me.' She further testified on direct examination that he did not examine her 'very much' and told her there was nothing wrong with her; that he told her to go back and teach school; that he gave her some drugs but did not advise having an X-ray taken, although she asked him to do so; and that he did not advise her to go to bed. However, on cross-examination she admitted that she did have an X-ray taken of her back at the Bothwell Hospital after either her first or second visit to respondent's office; that the X-ray was in her possession at the trial, although she did not introduce it in evidence; and that she did not contend that this X-ray indicated any bone injury.

At the trial her principal complaints were injuries to her back, yet she made no such complaints to respondent during the period of the relationship of physician and patient. Her complaints of pain made to respondent involved her shoulder, the front part of her chest and her hip. The only external evidence of any injuries she had were black bruises on her hip and a small lump on her shoulder. In fact, her testimony as to her injuries is as follows:

'Q. Where did you tell him you were hurt? A. My shoulder, my chest.

'Q. Your shoulder and your chest? A. My back. I thought it was my chest, but it was my back.'

The respondent had her remove her clothes and manually examined her chest, back, shoulder, arms and ribs. She complained of bleeding from the vagina and rectum. He examined her with regard to these complaints but stated he found no blood. On the second visit to his office respondent taped her left side. He also gave her medicine.

Appellant was told by respondent on February 16, 1944, that he could do nothing further for her and suggested that she go to someone else.

On November 2, 1945, appellant settled her claim for damages with Callis for $2,500. Previous to making this settlement, she submitted reports from several physicians who had examined her. One of these reports was made by respondent. A statement in that report was to the effect that he advised appellant to stay in bed as much as possible.

In ruling the question of whether the evidence made a submissible case for the jury, we must take as true every fact and circumstance which appellant's evidence tends to prove. She is entitled to the benefit of every reasonable inference which may fairly be drawn therefrom and, of course, the evidence must be considered in the light most favorable to her. See Missouri Digest, Trial, k156(3).

A physician who undertakes the treatment of a patient is required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing in the same or similar localities. Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Trask v. Dunnigan, Mo.App., 299 S.W. 116; Persten v. Chesney, Mo.App., 212 S.W.2d 469. In other words, the law requires that a physician or surgeon who undertakes to treat a patient possess that degree of skill and learning which is ordinarily possessed and exercised by members of his profession in good standing who practice in the same or similar...