Stevenson v. Gelsthorpe

• Decision Date: 03 August 1891
• Parties: STEVENSON v. GELSTHORPE.
• Court: Montana Supreme Court

27 P. 404

10 Mont. 563

STEVENSON v. GELSTHORPE.

Supreme Court of Montana

August 3, 1891

Appeal from district court, Cascade county; CHARLES H. BENTON Judge.

Action by Ole Stevenson against W. H. Gelsthorpe to recover damages for malpractice. Judgment for plaintiff. Defendant appeals. Reversed.

Geo. W Taylor, for appellant.

Baum & Bishop, for respondent.

HARWOOD J.

This is an action for the recovery of damages. Plaintiff a verred in his complaint that in the month of October, 1889, while plaintiff was engaged in mining coal at Sand Coulee, in the county of Cascade, this state, he sustained, by accident, a grievous injury to the wrist joint of his left arm; that at said time and place defendant was a physician and surgeon practicing his profession, and plaintiff called defendant as such physician and surgeon to set, dress, bandage, and medically treat the said broken and injured limb, which defendant undertook and proceeded to do, but that defendant "so negligently and unskillfully conducted himself in setting and attempting to set and heal said arm, wrist, and hand that said wrist, became crooked, and the bones therein are out of place, and the fingers upon said hand are stiff and weak, and so remain, and will remain, during the lifetime of plaintiff;" whereby plaintiff alleged that he was damaged in the sum of $5,000, for which he demands judgment. On the trial of the cause the jury returned a verdict in favor of the plaintiff for the sum of $500, and judgment was thereupon rendered against defendant for that sum and costs. Defendant sought a new trial, on the ground, among others stated, of insufficiency of evidence to justify the verdict. The court below overruled the motion, and defendant appealed from that order and the judgment, and has brought here for review the evidence, during upon the attention of this court the one ground upon which he relies for setting aside said verdict and judgment; namely, that the verdict is not supported by evidence. The record before us contains all the evidence given upon the trial, and it appears therefrom that appellant is fully sustained in his assignment of its insufficiency to justify the verdict against him. There is no evidence in this record to support a finding by the jury that defendant had been negligent, unskillful, or careless in his professional treatment of said injury; nor that the result to the injured limb through such treatment was less beneficial than is attained by the most careful and skillful treatment known to the medical profession. On the contrary, the plaintiff introduced testimony of practicing physicians tending to prove, not only that the treatment and appliances used by defendant were approved by medical writers of eminence and authority in that science, but that the benefit resulting from such treatment was all that could be expected in any event, and was extraordinary in its beneficial result if plaintiff's injuries were as severe as contemplated by the hypothetical question put by plaintiff's counsel. Such was the state of the proof when plaintiff rested his case. Had defendant's counsel, at this juncture, moved the court for a nonsuit, we can see no reason why the court would not have granted such motion. But the defendant did not move therefor. It may be he desired the submission of the case to the jury, expecting exoneration by a verdict at the hands of the jury. On the trial, the plaintiff and some other witnesses called on his behalf first narrated the events relative to the happening of the injury, the summoning of defendant, and his conduct in regard to setting and dressing the injured limb, and his treatment thereof afterwards. In the narration of those facts, nothing is shown tending to prove whether defendant's conduct in the treatment of the injury was careful, appropriate, and skillful, or the contrary.

It appears from the evidence and argument of plaintiff's counsel that because the doctor, in this age of extraordinary advancement and invention, used simple and common appliances in dressing the wounded arm, they concluded he was wanting in skill and proper care in his treatment of the case. The physician is under an implied obligation, when he undertakes to treat diseases or injuries, to bring to his aid such obtainable remedies and appliances as discovery and experience have found to be the most appropriate and beneficial in aiding recovery. But in some cases the best and most appropriate appliances or remedies may be very simple and commonplace, and it may be the highest type of skill which applies these things to aid nature in its healing processes. The plaintiff, in describing the manner in which defendant dressed his injured arm, said: "He called for pasteboard, and there was a basin full of milk warm water and he took the pasteboard and cut it up in two pieces, and put one on each side, and put a lot of cotton under them next to my hand. Then he took a cotton strip and tied that hand up. I cannot just say how close the strips were to my elbow. He waited on me right along. He took the splints off when the time came to take them off; and he took them off once, and looked at the hand, eleven days between, and then put them back." This is a fair sample of the testimony of plaintiff's witnesses as to how the defendant treated the injured arm. It was reserved to those witnesses learned in the science of medicine and surgery, and experienced in the treatment of such cases, to give the necessary evidence as to whether the treatment described was proper and skillful or negligent and unskillful, and whether good or injurious results flowed therefrom. Such experienced witnesses were called by plaintiff. The first was Dr. George Cummings, who testified in effect as follows: "I reside in Great Falls. Have resided here only four months. Have made examination of the plaintiff's left wrist and arm. As far as the forearm is concerned, I cannot say positively that there is anything the matter of it. As far as the wrist is concerned, there is some stiffness and tenderness there. The bones and wrist seem to be in proper place as far as my judgment goes. The bones are in such a good apposition that it is almost impossible in my judgment to tell whether there has been a fracture or not. The treatment recommended for a dislocation of the forearm or wrist would be about as follows: After having read, justed the dislocation, I should either put it up in anterior or posterior splints or in a pistol-shaped splint. I let the splints go up as far as the elbow, and to include the hand, leaving the hand at the fingers so that they could be seen. I should pad the...