Spaulding v. Bliss

• Decision Date: 21 November 1890
• Citation: 47 N.W. 210,83 Mich. 311
• Court: Michigan Supreme Court
• Parties: SPAULDING v. BLISS et al.

47 N.W. 210

83 Mich. 311

SPAULDING v. BLISS et al.

Supreme Court of Michigan

November 21, 1890

Error to circuit court, Saginaw county; JOHN A. EDGET, Judge.

Tarsney & Weadock, for appellant.

L T. Durand, (Hanchett, Stark & Hanchett, of counsel,) for appellees.

MORSE, J.

This is an action brought against the defendants, who are physicians and were copartners in business at the time of the alleged malpractice, for which damages are claimed in this suit. The plaintiff, who is a married woman, about 50 years of age, and by occupation a milliner and hair-dresser, met with an accident, by which her right leg was broken above the knee the break being an oblique fracture about the lower third of the thigh-bone or femur. This injury happened on the 27th of July, 1887, about 11 o'clock A. M. She was at her son's, outside of the city of Saginaw, and it was some hours before the broken leg was set. Dr. Bliss was sent for but he was unable to be present, and Dr. Davis, with the assistance of Mr. Moore, a druggist, reduced the fracture. Dr. Davis, soon afterwards, went to the state militia encampment, at Brighton, and Dr. Bliss was himself hurt, so that he could not attend upon plaintiff. He sent Dr. Morse, who managed the case until Dr. Davis returned, about August 13, 1887. After that, Dr. Davis had full charge of the plaintiff's case. The declaration contains six counts, the first alleging that defendants should have used splints and other appliances to hold the fractured and broken bones together in permanent position, and to aid in securing a cure of the plaintiff's injury, which she alleges they did not do in proper time. The second count charges negligence on the part of the defendants in not putting on suitable plaster casts at the proper time; she alleging that they wholly neglected their duty in that regard. The third count alleges that the defendants did not use ordinary skill and care to secure the fractured bones of plaintiff's leg, and did not furnish counter-extension as soon as practicable after the bones had been set; and that they put on weights of too great weight, and furnished no counter-extension. The fourth count charges that Dr. Morse put on the splint on plaintiff's leg wrong, thereby causing her great pain. The fifth count alleges a breach of duty on the part of the defendants in not ascertaining the full extent of the injury to the plaintiff's leg, and giving it proper and suitable treatment, alleging that her knee was injured in the fall, and that defendants did not ascertain that fact, or do anything for her knee. The sixth count alleges that they should have so cared for the knee as not to have injured it at the time of setting; but on the contrary plaintiff alleges that Dr. Davis, and one L. G. Moore, a druggist, who accompanied him, used such force and violence, at the time of setting the leg, as to wrench and dislocate, and otherwise injure, the knee on the fractured leg. The seventh count alleges that the defendants did not attach the proper attachments and appliances in the proper manner to the injured leg of the plaintiff. To this declaration the defendants pleaded the general issue, and the case came on for trial at the July term, 1889, and resulted in a verdict for the defendants.

There are five assignments of error. First. The plaintiff was asked the following question: "State whether or not the pain in your knee and the difficulty that you have experienced from it, including the swelling, was, so far as you could tell by any feeling, connected with the point of injury where your leg was broken." This was objected to as incompetent. The court said: "I think it is only competent for her to describe the symptoms; I think that is not a proper question." She then testified as follows "Mr. Weadock: Now describe the feeling of your limb between the point of injury in the knee and the point of injury at the fracture above the knee, as to whether or not there was any pain? Answer. Always pain in the knee,-always. Question. But was there a pain above the knee before you arrive at the point of fracture? A. Not so much as in the knee. I never suffered any pain in the fracture to amount to anything while I lay on my back, but it was all in my knee." Plaintiff's counsel claimed on the trial that her knee was injured by the action of the physician and his assistant in setting the broken limb; that by the use of unnecessary force they wrenched the knee, and injured it by breaking or partially rupturing a ligament or ligaments. It is contended that the question ruled out, in view of this claim, was competent. We think she was permitted to testify as fully as the law allows to her symptoms and feelings. It was not her province to state conclusions. She could tell where her pains were, but she was not an expert, and could not, therefore, testify what was the cause of such pains. When she testified that she never suffered any pain of any amount in the...