Stagner v. Files

• Decision Date: 08 March 1938
• Docket Number: Case Number: 27124
• Citation: 1938 OK 169,182 Okla. 475,78 P.2d 418
• Parties: STAGNER v. FILES
• Court: Oklahoma Supreme Court

1938 OK 169

78 P.2d 418

182 Okla. 475

STAGNER v. FILES

Case Number: 27124

Supreme Court of Oklahoma

Decided: March 8, 1938

Syllabus

¶0 1. TRIAL - Sufficiency of Plaintiff's Evidence to Withstand Demurrer.

Where the evidence as a whole warranted the submission of a cause to the jury, error predicated upon the overruling of a demurrer to the plaintiff's evidence is immaterial.

2. PHYSICIANS AND SURGEONS - Action for Malpractice - Sufficiency of Evidence of Defendant's Negligence to Submit to Jury.

Where there is sufficient basis in the evidence of a malpractice action for reasonable inference that the defendant should have discovered the cause of the plaintiff's suffering and should have properly treated said condition, there is no error in the submission to the jury of the question of the defendant's negligence.

3. SAME - APPEAL AND ERROR - Use of Words "Reasonable and Ordinary Care and Skill" in Instructions Describing Duty of Physician to Patient Held not Prejudicial to Defendant.

Though the words "reasonable and ordinary care and skill" do not describe specifically the duty of a physician to his patient, yet the fact that said phrase is used in the instructions to the jury as the measure of the defendant's liability in a malpractice action is not in itself ground for reversal of a judgment for the plaintiff therein, in the absence of a showing of prejudice to the defendant thereby, for such words do not prescribe greater care and skill than the law requires of a physician and are more likely to be favorable than prejudicial to said defendant.

Appeal from District Court, Beckham County; W.P. Keen, Judge.

Action by C.M. Files against G.H. Stagner. Judgment for plaintiff, and defendant appeals. Affirmed.

Clearman & Ellis, for plaintiff in error.

Minton & Minton, for defendant in error.

DAVISON, J.

¶1 In this action the plaintiff sues the defendant, a practicing physician, for damages on account of injuries, including pain and suffering he is alleged to have suffered as a result of the negligence of the defendant in treating his dislocated right shoulder. The plaintiff's shoulder had been dislocated when a team which he was driving ran away with him on a farm where he lived near Erick, Okla.

¶2 The evidence shows that the dislocation occurred on or about the 17th day of May, 1933, while the plaintiff had the team hitched to a cotton planter with which he was planting cotton on his farm, and that when the team ran away, he, in some manner, got caught in said farm implement and the team dragged him for a distance of approximately a quarter of a mile. The shoulder became swollen to approximately twice its normal size, and on or about the 29th day of May, 1933, after some of the swelling had disappeared, but before the pain had ceased, the plaintiff went to Erick for the purpose of engaging the defendant to treat the shoulder. The defendant accepted the employment, examined the shoulder with a fluoroscope, and found that the injury was a subglenoid dislocation. The physician then manipulated the arm with the aid of his nurse. Both the nurse and the doctor testified that the manipulation put the shoulder back into its proper location and that the plaintiff told them that he thereby derived relief from the pain. The plaintiff, however, denied having made such a statement and maintained on the witness stand that he did not know whether the shoulder went back into place or not, but that its location had not changed since that time. The doctor admitted that after adjusting the arm and before the plaintiff's departure from his office he made no sort of an examination to determine whether the joint was in its proper place besides observing the degree of freedom with which the joint moved when the plaintiff placed his right hand on his own left shoulder and the top of his head. On this point the plaintiff testified that the defendant merely had him take hold of his left car and his nose with big right hand. The defendant, himself, testified that he told the plaintiff that there was great possibility that the shoulder would slip out of its socket again and that he would have to be very careful with it and refrain from trying to work. He also testified that he told the plaintiff to return to his office in three days for further examination and treatment. The plaintiff and his son deny this, but the testimony of J.L. Haddock, who went to the defendant's office with them, affirms it.

¶3 The testimony introduced on behalf of the plaintiff is to the effect that he returned to the defendant's office five or six times during the next four months, always insisting that there was something still wrong with his arm and that he was still suffering with it, but was always assured by the defendant that it was "all right," until he finally went to the doctor's office in September to pay him and at that time an X-ray picture was taken of it. It is admitted that the X-ray picture revealed that the shoulder was dislocated and that the defendant then recognized the condition and advised an operation. In the meantime, the plaintiff had gone to a chiropractor and had been advised by her that the shoulder was dislocated.

¶4 The expert medical testimony, with the exception of the plaintiff's chiropractor, established the likelihood of a dislocation, such as the plaintiff's, very easily recurring after it had once been relocated, and some of the testimony tends to prove that this could happen without the patient being aware of it at the time. The medical testimony further establishes that in most cases a physician can ascertain, by a manipulation, such as the defendant claims he used, whether a shoulder is in its proper location, but some of the testimony tends to show that the taking of an X-ray picture is probably the best method of making this determination. All of the witnesses agreed, however, that it was seldom necessary to make an X-ray picture of the shoulder to determine whether the manipulation had successfully relocated the shoulder. All the medical witnesses who were interrogated upon the condition of the plaintiff's shoulder at the time of the trial agreed that an operation would be necessary to relocate the plaintiff's shoulder, and that it was doubtful as to whether such an operation would be successful, but that if it were, he would still have a partial disability in it. At some time before the plaintiff's last trip to the defendant's office, when the X-ray revealed the dislocation, the muscles of his injured arm had begun to atrophy. All of the medical witnesses agreed that this condition was brought about by the nerves or ligaments or both having become impinged and the muscles having remained in disuse. They further agreed that such an impingement could be caused by a dislocation such as the plaintiff had suffered and could result from injuries received in an accident like he had had.

¶5 All of the medical witnesses that were interrogated on the point agreed that the longer a shoulder was allowed to remain out of place, the more marked the atrophied condition became, and the slighter the chance of relocating it and restoring it to its normal ability or utility.

¶6 The defendant denied that the plaintiff returned to his office for treatment after May 29th as he had directed, and he further testified that the only times that he ever saw him after that was once on the street in June and again when he came to his office in September and paid him and allowed the X-ray picture to be made.

¶7 The defendant admitted that when there was any question as to whether or not a dislocated shoulder had actually been adjusted or relocated, it was advisable to take an X-ray picture of it.

¶8 At the close of the evidence the defense counsel moved for a directed verdict, and the same was overruled. Thereupon the defense requested six instructions, all of which were denied. Upon the cause being submitted to the jury, a verdict in favor of the plaintiff in the sum of $500 was rendered.

¶9 From an order overruling his motion for a new trial, the defendant has perfected this appeal. His assignments of error are condensed into two propositions in which he attacks both the sufficiency of the evidence and the court's instructions. The first of these two propositions is worded as follows:

"Did plaintiff's evidence sustain the burden of showing that defendant was unskillful and negligent, and that the injury complained of was produced by such want of skill or care? (a) Did the court err in overruling defendant's motion for a directed verdict when all of the evidence was in?"

¶10 Whether the plaintiff's evidence alone was sufficient to show unskillfulness and negligence on the part of the defendant and that the plaintiff was injured thereby will not here be considered, but instead we will consider the evidence as a whole to determine whether it is sufficient to support plaintiff's recovery. Though it is true that the defendant demurred to the plaintiff's evidence, yet this court has often held that if there was sufficient evidence introduced to make out a case for the plaintiff, considering the entire evidence, the case will not be reversed because of error in overruling a demurrer to plaintiff's evidence. Meyer v. White, 27 Okla. 400, 112 P. 1005; Bales v. Breedlove, 96 Okla. 280, 222 P. 542; Sinclair Oil & Gas Co. v. Allen, 143 Okla. 290, 288 P. 981. For this reason, only subdivision (a) of the defendant's first proposition will be considered, and in so doing we will consider the evidence introduced on behalf of the defendant together with that introduced by the plaintiff.

¶11 It is so well established as to be axiomatic that if there is any competent evidence reasonably tending to support a litigant's right to recovery, a verdict should not be directed in favor of his adversary, but the cause should be submitted to the jury. This court has also followed the rule that in determining whether a verdict should be directed in favor of the defendant, the...