Snearly v. McCarthy
| Citation | 161 N.W. 108,180 Iowa 81 |
| Decision Date | 20 January 1917 |
| Docket Number | 31051 |
| Parties | L. C. SNEARLY, Appellant, v. WILTON MCCARTHY, Appellee |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED TUESDAY, MAY 22, 1917.
Appeal from Polk District Court.--W. S. AYRES, Judge.
ACTION against defendant, who is a physician and surgeon, for malpractice in reducing a fracture to the femur of plaintiff's right leg. The defendant denied all negligence in the treatment of the case. On the issues joined, the case was tried to a jury, and, at the conclusion of the testimony offered for plaintiff, the trial court, on motion, directed a verdict for defendant, and plaintiff appeals.
Affirmed.
A. D Pugh, for appellant.
Dutcher Davis & Hambrecht, and Parsons & Mills, for appellee.
I.
On April 22, 1912, plaintiff, while riding a motorcycle in the city of Des Moines, collided with an automobile, resulting in a simple oblique fracture of the femur of his right leg. He was immediately taken to one of the hospitals in the city, and a Dr. Losh was called. Plaintiff had a brother in the city who had at one time practiced medicine and surgery, and he, too, was called. The two doctors, upon consultation, agreed to call the defendant, and he responded to the call. Plaintiff was immediately taken to the operating room of the hospital, and an anesthetic was administered, the fracture reduced, and the patient taken back to his room. While still under the influence of the anesthetic, dressings and sandbags and extension straps were applied. Within twelve hours, weights were added, and these were followed by splints, and matters apparently progressed as usual for two or three weeks, when plaintiff discovered, or thought he discovered, a shortening of the injured limb. He called his brother's attention to the matter, and the latter measured it and found it to be almost two inches shorter than the other one. During the interim, plaintiff was visited every day or so by four other physicians aside from defendant, although but one of these seemed to have charge of the case--that one being an interne at the hospital or an assistant to the defendant.
Defendant was informed of the shortage, visited the plaintiff, and prescribed additional weight to the extension, which was then added. After being in bed five or six weeks, plaintiff was allowed to sit in a chair for about two weeks, and then to get around on crutches for about three weeks. Before this, however, Dr. Losh put on what is called an ambulatory splint, for the purpose of adding to the extension. After that, a plaster of Paris cast was put on, and this extended from just below the hip to a point just below the knee. At the end of seven weeks, and while the cast was still on, Dr. Losh and the defendant concluded that plaintiff might leave the hospital, and he did so leave. The doctors told him that he might by degrees bear some weight upon the injured member. Some of the cast was cut away, so as to free the action of the knee joint. In observing the directions of the physicians, plaintiff noticed some trouble with the injured leg, as if the bones were slipping past each other, and reported the same to Dr. Losh, and also called Dr. Welpton's attention to the matter. Dr. Losh had plaintiff taken to another hospital, and there some X-ray pictures were taken. Dr. Welpton and a Dr. Habenicht also took some pictures. Thereupon, plaintiff called defendant's attention to the matter, and defendant, upon examination, found that there had been no union of the fractured parts. Such being the situation, defendant recommended an operation, and the use of what is known as a Lane plate. Accordingly, plaintiff was again taken to a hospital, the leg was cut open, the bones scraped, and the plate applied. The wound was left open and the limb bandaged and dressings changed daily thereafter for several weeks, when another plaster cast was put upon the limb, this cast extending the full length of the leg. This remained on for about six weeks. At that time, a shorter cast was put on, which remained for several weeks, and then what is known as a cylinder cast was applied, and this was left on until plaintiff left the hospital, about December 17, 1912. He left because he saw no signs of improvement. Before leaving the hospital, and while defendant was still treating him, plaintiff's brother, the doctor, called a doctor friend from Chicago to see the patient, and this doctor recommended that plaintiff be taken to Chicago for future surgical work. Upon leaving the hospital in December, plaintiff went to Chicago and consulted Dr. John B. Murphy. Murphy had an X-ray taken, and concluded therefrom that another operation was necessary. This was performed, another plate was put on, and also what is known as a travoid splint. Four months afterward, Dr. Murphy discovered that there was still no union. Another operation was then had, and a plaster of Paris cast was put on, extending from the waist line to the toes. About four and a half months after this second operation, it was discovered that there was still no union, and, on September 5, 1913, a third operation was performed by Dr. Murphy, which resulted in a union, and plaintiff was finally discharged about January 14, 1914. Plaintiff's injured limb is now considerably reduced in size, and is about one and a half inches shorter than the other one.
Many grounds of negligence are charged, and these are made quite specific. As we gather from the petition, it is claimed that defendant was negligent in not using an X-ray machine in diagnosing the case before he did anything toward reducing the fracture; negligent in not using it both before and after he performed the operation; that he was negligent in not properly bandaging the limb and applying splints and methods for extension before plaintiff came out from under the influence of the anesthetic given just after he received his injuries; that defendant was negligent in failing to discover the shortening of plaintiff's limb and the nonunion of the bone, and applying proper methods to correct the difficulty; that proper extension was not applied at a suitable time or times, and that the application of splints, bandages and supports was negligently delayed and applied when the limb was swollen, and when the inflammation subsided, they were not sufficient to reduce the fracture or to hold the bones in apposition; that the Lane plate was not properly put on, in that it did not have a sufficient number of screws, was not put on straight or sufficiently secured to hold the broken bones in place; that the delayed union was due to defendant's failure to properly hold the broken bones in apposition so that they might reunite, or to constitutional causes which were preventable; and that defendant did nothing to remove these conditions.
It is claimed that in all these respects defendant failed to follow the usual and customary practice of physicians and surgeons in his locality, both in the diagnosis and treatment of the case.
On the other hand, defendant insists that there is no testimony whatever that he did not treat the plaintiff according to the usual and proper methods; that there was no evidence of any neglect on his part, either in discovering or treating the injuries; and that the difficulties with plaintiff's case arose out of the fact that there was a nonunion of the bones, due to no fault of his, but to nature's failure to throw out the necessary material to unite the broken bones.
For appellee, it is insisted that plaintiff produced no testimony tending to show any malpractice on his part; that the testimony shows nothing but the fact of nonunion for an unusual length of time and a shortening and a reduction in the size of the injured limb, all of which is accounted for by natural causes, or unusual ones, for which defendant was in no manner responsible.
At the outset of the discussion, we may say that plaintiff selected the grounds of negligence upon which he would stand, stating them with great particularity, and that nowhere does he claim that defendant failed to give plaintiff the necessary constitutional treatment to aid nature in throwing out the callous or bony substance which cements the ends of broken bones together; so that this proposition must be eliminated from the case.
Again while the method of treatment adopted by defendant is fully pointed out and described in the testimony, no witness was called by plaintiff to show that this was not regarded as proper practice by the profession in the locality where defendant practiced. If there be any such testimony, it is to be inferred from what defendant did or failed to do, viewed from the standpoint of a nonexpert, or deduced from what some of the medical experts said while on the stand. As a general rule, it may be safely affirmed that, in matters requiring special skill and training, it is not permissible for laymen as nonexperts to set up any artificial standards as to methods of treatment. This is especially true in surgery; for in that field neither courts nor juries are presumed to know more regarding methods of treatment than ordinary laymen, and that is practically nothing. After hearing the theories, deductions and scientific facts from experts, both judge and jury must often oppose one set of opinions against another and determine which is the more reasonable, but they cannot, without some guide, presume to fix any standard upon which to determine the correctness of any kind of treatment. This is pointed out in many cases from other jurisdictions. Ewing v. Goode, 78 F. 442; Getchell v. Hill, 21 Minn. 464; Tefft v. Wilcox, 6 Kan. 46; Farrell v. Haze, (Mich.) 122 N.W. 197. We have adhered to that...
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