Stoskoff v. Wicklund
| Decision Date | 17 April 1923 |
| Citation | 193 N.W. 312,49 N.D. 708 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Williams County, Lowe, J.
Defendant Carl A. Wicklund, appeals from the judgment.
Reversed.
Judgment reversed and new trial ordered. Defendant recovered costs.
Bosard & Twiford and Craven & Converse, for appellant.
A physician is only held to the exercise of ordinary skill, and in an action for malpractice the burden of proof is upon the plaintiff to show the want of ordinary skill and diligence and to show that the injury alleged resulted from a failure to exercise these requisites. McKee v. Allen, 94 Ill.App. 147.
"If in any case nonexpert testimony of the injury, of the method of treatment adopted, and of the resulting conditions may be such evidence of negligent treatment by an attending surgeon as a jury may act upon,--this case (malpractice) is not such an one." Neifert v. Hasley, 112 N.W. 705.
McCarthy v. Harvard Dental Parlors, 121 N.Y.S. 343; Miller v Toles (Mich.) L.R.A.1915C, 595, 150 N.W. 118; Phoebus v. Mather, 181 Ill.App. 274; Barker v. Lane, 23 R. I. 224, 49 A. 963; Farrel v. Haze (Mich.) 122 N.W. 197; Adolay v. Miller (Ind.) 111 N.E. 313; Ewing v. Goode (Ohio) 78 F. 442; Zoterell v. Repp (Mich.) 153 N.W. 692; Lorenz Staloch v. Holm, 100 Minn. 276, 111 N.W. 264; State v. Housekeeper, 70 Md. 162; Friend v. Kramer, 236 Pa. 618, 85 A. 12.
"Where the evidence discloses no connection between the injury and the negligence charged, except a bare possibility that the former resulted from the latter, there is nothing for the jury, where it is also possible the injury may be due to other causes." Dame v. Laconia Car Co. Works, 71 N.H. 407, 52 A. 864; Reynolds v. Burgess Sulphite Fibre Co. 73 N.H. 126, 59 A. 615; McGraw v. Kerr (Colo.) 128 P. 870; Taylor v. Kidd (Wash.) 129 P. 406; Prestley v. Stafford (Cal.) 158 P. 776; Moore v. Teed & Seegarden, 3 Cal. 190; Sherwood v. Babcock (Mich.) 175 N.W. 470; Hanson v. Harris (S. D.) 184 N.W. 262; Kelly v. Hollingsworth (S. D.) 181 N.W. 959.
Where the action is based upon alleged ignorance or want of skill on the part of the defendant, the declaration must directly allege that the defendant was negligent and unskilful. Barney v. Pinkham, 29 Neb. 350; Mayo v. Wright, 63 Mich. 52, 29 N.W. 832; Hills v. Shaw, 69 Or. 460, 137 P. 229; Baker v. Hancock, 29 Ind.App. 456; Martz v. Detweeter, 8 Watts & S. (Pa.) 376.
Frank E. Fisk and Fisk, Murphy & Nash, for respondent.
The plaintiff, George Stoskoff, was an old man seventy years of age. He had a corn on the little toe of his right foot. He treated it himself for five or six weeks but it continued to get worse until it became so painful that finally on October 13th, 1919, he consulted the defendant, Carl A. Wicklund, a physician practising at Wildrose, North Dakota. The defendant, after examining the plaintiff's foot, told him that he had a soft corn on the inside of his little toe; that the condition had become so bad that it would be necessary to remove the toe. To this the plaintiff objected and went home. In a few days, however, he returned and submitted to the operation which was performed by the defendant. The defendant had the plaintiff removed to a hotel in the town of Wildrose where he was cared for by the landlord and his wife. The foot did not heal, and a few days afterward the defendant advised the plaintiff it would be necessary to submit to a further operation which the plaintiff agreed to. The defendant put the plaintiff under an anaesthetic and performed the operation, subsequently the plaintiff was again removed to the hotel.
It appears that at the time of the first operation, the plaintiff was suffering from arterio sclerosis and diabetes. The defendant after a cursory examination became aware of the arterio sclerosis, but gave no treatment to remedy the plaintiff's general physical condition prior or preparatory to the operations. The plaintiff remained in the hotel at Wildrose under the defendant's care and treatment from the 15th of October until the latter part of November. The foot refused to heal and gangrene developed. Finally the defendant advised the plaintiff that it would be necessary to amputate the foot, and suggested that as there were no proper facilities at Wildrose it would be necessary for him to go elsewhere. The plaintiff went to Rochester, Minnesota, and entered the Mayo Clinic. There after receiving treatment on account of his diabetic condition, an operation was performed, but it was necessary at that time, in order to save the plaintiff's life, to amputate the leg above the knee.
The plaintiff testified that he was never at any time advised by the defendant as to his having arterio sclerosis or diabetes; that the defendant made no inquiries as to his age, weight, health, or physical condition either before or after the operations; that he was not advised by the defendant that it would be necessary to amputate the foot until a day or two before he went to Rochester; that the only treatment given to him by the defendant after the operation was an occasional dressing of his foot and the application of first, a black salve and later a powder; that no diet was prescribed for him, and no direction given for his care.
The defendant, on the other hand, testified, that he was aware of the arterio sclerosis prior to the first operation, and that when after the first operation the foot did not heal he made a further examination and further tests and learned of the diabetic condition of the plaintiff; that he prescribed necessary and proper medicine and attention; that he directed that the plaintiff be put upon the proper diet to remedy the diabetes; that at the time of the first operation there was necrosis of the tissue and bone of the little toe; that when after the operation the toe did not heal, the second operation was for the purpose of removing sloughing tissue so that there might be a better drainage and a process of healing begun; that he advised the plaintiff of his condition generally and specifically, told him within a day or two after the operation that it might be necessary to amputate the foot, and gave the plaintiff careful and prompt attention in every respect.
The plaintiff brings this action to recover on account of the negligence of the defendant as a physician in not properly treating, caring for, and prescribing for the plaintiff; he alleges that by reason of such negligence he suffered great physical pain and was compelled to and did submit to an operation for the amputation of his leg, and he prays damages on account of such negligence. The defendant denies any negligence on his part, pleads contributory negligence on the part of the plaintiff, and that the result complained of arose because of the plaintiff's physical condition prior to consulting the defendant. The cause was tried to a jury; submitted on these issues; and the jury returned a verdict for the plaintiff in the sum of $ 5,748.60.
At the close of the plaintiff's case the defendant moved for a dismissal because of the asking of certain questions by the plaintiff, which defendant contended would necessarily result in a mistrial, and at the close of the whole case, defendant moved for a directed verdict on the ground of the insufficiency of the evidence to warrant a verdict for plaintiff. After the verdict was returned, the defendant moved for a new trial or for judgment notwithstanding the verdict, which motion was denied.
The matter is here on appeal from the judgment. The plaintiff specifies as grounds for reversal, first, the action of the trial court in denying his motion to dismiss; and second, the insufficiency of the evidence to sustain the verdict, contending that there is no evidence showing or tending to show any negligence on the part of the defendant in connection with his treatment of the plaintiff; that it affirmatively appears that the defendant used the ordinary and reasonable skill and judgment used by practitioners in practising medicine at that place under conditions as disclosed; and that the undisputed testimony shows that the results which the plaintiff has obtained and of which he complains were caused by his own physical condition prior to his consulting the defendant, and not by reason of any negligence or lack of skill or care in the treatment of his ailments.
The matters which the defendant relies upon as justifying his motion for a dismissal at the close of the plaintiff's case, and on account of which he predicates error by reason of the denial of that motion by the trial court, are based upon this portion of the record made just prior to the closing of the plaintiff's case, the defendant being on the stand for cross examination under the statute, Mr. Nash, attorney for the plaintiff, examining:
Q. Are you a member of the Northwestern Medical Association?
A. Yes, sir.
Q. Did you report ...
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