Sly v. Powell
| Decision Date | 11 May 1912 |
| Docket Number | 17,630 |
| Citation | 123 P. 881,87 Kan. 142 |
| Parties | LILLIAN SLY, revived in the name of CARY JOHNSON, as Administrator, etc., Appellee, v. L. M. POWELL, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1912.
Appeal from Shawnee district court.
Judgment reversed and the cause remanded.
SYLLABUS BY THE COURT.
1. MALPRACTICE--Physician--Evidence--Expert Witnesses. In an action against a physician and surgeon to recover damages for malpractice for failing to properly reduce a dislocation and treat an injured hand nonexpert witnesses can testify as to external appearances and manifest conditions observable by any one, but whether a surgical operation has been performed with a reasonable degree of skill, knowledge and care, and whether the patient was thereafter skillfully and properly treated, are questions of science to be established by the testimony of witnesses of special skill and experience and not by testimony of those who are without special learning and skill as to such operations and practice.
2. EVIDENCE--Exclamations of Bodily Pain--Hearsay. Testimony of expressions of a natural and spontaneous character, indicating present bodily pain, is competent as original evidence, but the declarations of an injured party as to his past feelings and symptoms, and which are not voluntary exclamations of present pain and suffering, are hearsay and should be rejected.
3. EVIDENCE--Declarations of Physician. Ordinarily the declarations of a physician, who is not a party to the action and who was consulted by a patient as to an injury or ailment, are not admissible in evidence to show the physical condition of the patient.
4. INSTRUCTIONS--Qualifications Required of Physician. After instructing the jury correctly as to the skill learning and care to be possessed and exercised by general practitioners, the court further instructed that a physician and surgeon who holds himself out to the world as an expert in any of the branches of medicine and surgery is required to possess and exercise a higher degree of knowledge and skill than the ordinary practitioner. Held, that nothing in the testimony herein warranted an instruction on the theory that appellant had held himself out as a specialist or that the degree of skill and care required of him should be higher and greater than is required of the ordinary physician and surgeon.
R. W. Blair, H. A. Scandrett, B. W. Scandrett, and C. A. Magaw, for the appellant; Sol A. Wood, of counsel.
T. F. Garver, R. D. Garver, and J. B. Larimer, for the appellee.
This action was brought to recover damages for alleged malpractice.
Mrs. Lillian Sly suffered an injury to her finger and applied to L. M. Powell, a physician and surgeon, for treatment. The doctor, who was attending another patient, did not reach Mrs. Sly until about two hours after the injury nor until the hand was considerably swollen. After an examination he decided that there was a partial dislocation and also a slight fracture of the bone, and he undertook to reduce the dislocation, treating it in the usual way by placing splints and bandages on the finger. He visited her two or three times at her home and each time examined and treated the injured finger when she complained that it was causing her great pain. Subsequently she returned to her work as saleswoman in a store, but complained that she suffered much pain from the injury. She called at the doctor's office a number of times and was given treatment, but frequently expressed dissatisfaction that greater progress towards recovery was not made. In about five weeks after the injury she discontinued her visits to Doctor Powell and went to Doctor Stewart, who treated the injury from December until May, but she still complained of pain, and in the meantime she consulted a surgeon, Doctor Bowen, who reported that an operation was unnecessary. While taking treatment from Doctor Stewart she consulted Doctor Hammond, who made a partial examination, but advised her to return when he would place her under an anaesthetic so that a more complete examination could be made, but she did not go back again. Shortly afterwards, and about six months after the injury, she consulted Doctor Keith, who advised her that there was still a partial dislocation. He placed her under the influence of an anaesthetic, and stated that he broke up the adhesions which had formed, reduced the dislocation, and that afterwards there was more circulation through her finger and she was able to move and bend it. Inflammation and swelling continued, although she was under treatment with Doctor Keith for months. Finally she went to Wichita and consulted with Doctor Basham, who advised an amputation, and on the following March he amputated her finger.
In her petition she charged, not that Doctor Powell lacked professional skill or learning, but that he carelessly and negligently failed to reduce the dislocation of the finger and failed to discover its condition, or to skillfully and properly treat it afterwards, with the result that she suffered severe and excruciating pain and that the finger and hand became permanently disabled, making it necessary to have the finger broken and redislocated and subsequently to have it amputated. The answer of Powell was a denial of the allegations of a want of care and skill and an averment that if she had not recovered from the injury it was due to her impaired condition and to the fact that she did not follow the directions and advice given to her by himself and other physicians nor take ordinary care of herself. A trial resulted in a verdict in favor of the plaintiff and the defendant appeals. Since the judgment was rendered the plaintiff died, and the cause was revived in the name of the administrator of the estate.
On this appeal it is contended that incompetent testimony was received and that the evidence in the case does not support the charges of negligence. In view of the testimony that there was an admitted dislocation of the finger in the first instance, testimony that it was stiff and out of position when the splints and bandages were removed and that it remained in that condition until it was examined by Doctor Keith and his assistant, Doctor Amis, and their testimony that the finger was partly out of joint when they operated on it, and that after the adhesions had been broken and the dislocation reduced the finger became movable, the circulation became better, the swelling went down, and the finger became more natural in appearance, it can not be said that there was no testimony tending to support the allegation that appellant failed to properly reduce the dislocation and to exercise the skill and care required in the subsequent treatment of the finger. The testimony as printed is quite meager in some respects and not satisfactory in others. The appellant is a regular practitioner who has had nineteen years' experience in medicine and surgery, and had been Mrs. Sly's physician for ten years. A dislocation of the joint of a finger, it is conceded, is easily discoverable by an ordinary examination. Appellant made an examination and says that he found the finger out of joint, that he set it, and when he did so he noticed a distinct crepitus and the sound heard when the dislocated joint is brought back to its natural position. He states that in subsequent examinations he found the finger in proper position and movable but that it caused Mrs. Sly pain, and that she did not move or use it as much as she should have done. He examined and dressed it a number of times during the month following the injury and if out of place it should have been manifest. Becoming dissatisfied she changed physicians, and was under the charge of Doctor Stewart for more than four months. He testified that a careful examination disclosed that the finger was not out of joint at that time nor was it fractured; that there was little voluntary motion of the knuckle but that he could move it, although it caused her pain. The tendons at the joint indicated that there had been a dislocation, but his diagnosis was that she was then suffering with a kind of neuritis or inflammation of the nerves that supplied the finger. He is a reputable physician and surgeon of much experience, and it seems strange that he and his assistant who treated the finger did not discover a dislocation if one existed.
While under the care of Doctor Stewart she visited Doctor...
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