Skike v. Potter
| Decision Date | 09 December 1897 |
| Docket Number | 7667 |
| Citation | 73 N.W. 295,53 Neb. 28 |
| Parties | ERNEST VAN SKIKE v. DARIUS C. POTTER ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Seward county. Tried below before WHEELER, J. Affirmed.
AFFIRMED.
F. I Foss, J. D. Pope, Biggs & Thomas, and W. R. Matson, for plaintiff in error:
Defendants did not plead that they were discharged. Evidence that the physicians were discharged is not admissible under a general denial.
Standard books on medicine and surgery were erroneously excluded from the evidence. (Code of Civil Procedure, sec. 342; Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578; McCandless v. McWha, 22 Pa. St. 261; Carpenter v. Blake, 60 Barb, [N. Y.] 488; Bowman v. Woods, 1 Greene [Ia.] 441.)
The court erred in refusing to require jurors upon their voir dire to answer questions as to membership in secret societies and church organizations.
References as to degree of skill required and as to liability of physicians and surgeons: Lynch v. Davis, 12 How. Pr. [N. Y.] 323; Carpenter v. Blake, 60 Barb. [N. Y.] 488; Dale v. Donaldson, 48 Ark. 188; Ballou v. Prescott, 64 Me. 305; Potter v. Virgil, 67 Barb. [N. Y.] 578; Barbour v. Martin, 62 Me. 536; Bemus v. Howard, 3 Watts [Pa.] 255; Gates v. Fleischer, 67 Wis. 504; Hibbard v. Thompson, 109 Mass. 286; Wilmot v. Howard, 39 Vt. 447; O'Hara v. Wells, 14 Neb. 403; Graves v. Sautway, 6 N.Y.S. 892; Carpenter v. Blake, 10 Hun [N. Y.] 358; Becker v. Janinski, 15 N.Y.S. 675.
An error of judgment may be so gross as to be inconsistent with reasonable care, skill, and diligence. (West v. Martin, 31 Mo. 375; Howard v. Grover, 28 Me. 97.)
Physicians and surgeons engaged in practice as partners are all liable for malpractice by a member of the firm.
Norval Bros., George W. Lowley, D. C. McKillip, and J. L. McPheely, contra:
Evidence that the physicians stated they would not again visit plaintiff unless requested to do so, that they did not receive such request, and did not revisit him, was admissible under the pleadings.
References as to qualification of jurors and as to correctness of the rulings on challenges: People v. Thiede, 39 P. 845 [Utah]; People v. Cotta, 49 Cal. 168; People v. Fong Ah Sing, 70 Cal. 8; People v. McGonegal, 32 N.E. [N. Y.] 616; Spies v. Illinois, 123 U.S. 131; State v. Pike, 49 N.H. 399; Scott v. Chope, 33 Neb. 95; Basye v. State, 45 Neb. 261; Detroit W. T. R. Co. v. Crane, 50 Mich. 182; Brumback v. German Nat. Bank, 46 Neb. 540; Blenkiron v. State, 40 Neb. 664; McLain v. Morse, 42 Neb. 52; Van Etten v. Test, 49 Neb. 725; Wilcox v. Saunders, 4 Neb. 570; Garneau v. Palmer, 28 Neb. 307.
Text-books on medicine and surgery are not books of science, nor competent as evidence.
The opinion contains a statement of the case.
On July 4, 1890, Ernest Van Skike, while playing baseball, fractured his kneecap. For negligently treating this wound he sued Drs. Potter & Reynolds in the district court of Seward county for damages. The trial resulted in a verdict and judgment in favor of the doctors, to reverse which the plaintiff below has filed here a petition in error.
1. The first assignment of error is that the verdict is not sustained by sufficient evidence. The undisputed facts in the case are that plaintiff's kneecap was fractured at Cordova, Nebraska. One Dr. Doty was immediately called, dressed the wound, and put the plaintiff's leg in a temporary splint; and he was then taken to Beaver Crossing, which appears to have been his home. That night Dr. Greedy was called to treat the plaintiff's wound. He applied adhesive plasters to the knee, put it in roller bandages and a fracture box, and continued to visit and treat the plaintiff. On July 7 the defendants, with Dr. Greedy and at his request, called to see the plaintiff, and made an examination of the plaintiff's wound, and one of the defendants then expressed the opinion that a necessary, or at least a proper, method of treating the plaintiff's wound would be to make incisions in the skin and flesh of the knee and wire the two pieces of the fractured kneecap together with silver wire. On July 10 the defendants, in company with Dr. Greedy and a man named Evans, visited the plaintiff and performed an operation upon his knee. They subjected the plaintiff to the influence of chloroform, made incisions in the skin and flesh covering the kneecap, exposed the same, drilled holes in the two fractured parts thereof, and wired them together with a silver wire. While one of the defendants was drilling a hole in one of the pieces of the kneecap, a movement of the plaintiff's leg occurred, causing the drill to break, leaving the point thereof in the bone. The broken point of this drill was, by the defendants, left imbedded in the kneecap. The defendants visited the plaintiff on July 14, 22, 25, and on August 1, but did not return after the last date. The plaintiff, however, did not recover until after the spring of 1891, at which time other surgeons performed another operation upon his knee. At the time this suit was brought, and at the time the trial occurred, the muscles of the plaintiff's leg and thigh were shrunken, and his knee-joint enlarged and stiff. In other words, the plaintiff appears to be permanently injured, and his claim in this suit is that his permanent injury is the result of the negligent treatment given his wound by the defendants.
Under the assignment that the verdict is not sustained by sufficient evidence a specific argument of the plaintiff is that, in consideration of a certain reward promised the defendants, they undertook and promised not only to treat his fractured knee but to effect a perfect cure thereof, so that he should have as healthy a limb and as perfect use thereof as he had prior to the time the injury occurred. The evidence on the part of the plaintiff tends to sustain his contention. The defendants, however, deny that they entered into any contract with the plaintiff in and by which they guarantied to cure him, and the evidence on their behalf tends to support their theory. We cannot say that the jury's finding that the defendants did not undertake or agree to effect a permanent and complete cure of the plaintiff is unsupported by the evidence.
Another special argument of the plaintiff, under the assignment being considered, is that the defendants undertook and promised the plaintiff after performing the operation upon his knee on July 10 to continue to visit him and treat him until he should recover. The evidence on behalf of the plaintiff tends to sustain this contention. The defendants, however, deny that they made such an agreement, and allege that they made no agreement whatever with the plaintiff as to how often or how long they should visit and treat him, but that they did visit him in connection with Dr. Greedy, examined and treated his wound until and including August 1, at which time they informed the plaintiff that in their opinion he was doing well, and their further visits would be unnecessary, and that they should not return again unless he or Dr. Greedy should request them; and that they were never requested to visit the plaintiff after said August 1. The evidence of the defendants tends to support their contention in this respect, and again we cannot say that the jury's finding in favor of the defendants on this question is not supported by sufficient evidence.
As a part of the assignment under consideration, a third special argument of the plaintiff is that the defendants were guilty of negligence in adopting and pursuing the method of wiring the plaintiff's...
To continue reading
Request your trial