Summers v. Tarpley

• Decision Date: 18 January 1919
• Docket Number: No. 2332.,2332.
• Citation: 208 S.W. 266
• Parties: SUMMERS v. TARPLEY.
• Court: Missouri Court of Appeals

208 S.W. 266

SUMMERS v. TARPLEY.

No. 2332.

Springfield Court of Appeals. Missouri.

January 18, 1919.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Ertie May Summers against I. F. Tarpley. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Wammack & Welborn and K. C. Spence, all of Bloomfield, for appellant.

J. W. Farris, of Bloomfield, and J. L. Fort, of Dexter, for respondent.

BRADLEY, J.

Action by plaintiff against defendant, a physician, for malpractice in treating her ankle broken by jumping from a vehicle. Upon trial below before the court and a jury, plaintiff recovered judgment for $500, and defendant appealed.

The petition charges that the defendant was a physician and surgeon and engaged in the practice of his profession in Stoddard county; that plaintiff received an injury to the ankle and bones of her left leg the result of jumping from a vehicle; that plaintiff contracted with the defendant to treat her said injury; that, in pursuance of said employment, defendant undertook to treat her injury, but, in treating the same, negligently, unskillfully, and carelessly failed to bring together and properly align and set the broken ends of the bones, and negligently, unskillfully, and carelessly failed to put in their proper and natural place said bones, and unskillfully and carelessly placed and bandaged said broken bones, and negligently and carelessly used, in bracing and bandaging said broken bones, braces and bandages unfit for the purpose; and that in consequence of the negligence, carelessness, and unskillfulness aforesaid, plaintiff's said leg and ankle was crooked, enlarged, and unshapely, and permanently crippled and disfigured. The answer was a general denial.

On the night of August 16, 1916, plaintiff with others was returning to her home from church in the country. The team ran away, and plaintiff jumped out, breaking the small bone of her left leg about three inches above the ankle, and fractured the larger bone near the ankle joint. An hour or so elapsed after the injury before the defendant, who was called, arrived, and plaintiff's leg had swollen considerably in the meantime. At the roadside where plaintiff was injured, defendant gave temporary treatment, and had plaintiff put in a wagon and taken to her home a mile or so distant. At plaintiff's home defendant made an examination of the injury and diagnosed it as a dislocation. He testified that he put the disarranged parts back in position to the best of his judgment, bound the leg with ordinary bandage, covered the same with cotton, and strapped it in a metal splint. This splint was taken off at the end of seven days, the defendant still being under the impression that the injury was only a dislocation. About 15 days after the injury, defendant first realized that the bones of plaintiff's leg were broken, and at that time he put the splint back on. The bones were not put in proper apposition, however, and the result was a somewhat deformed ankle. Defendant gave as an excuse for not diagnosing more thoroughly in the first instance that plaintiff's father and mother would not permit him to administer chloroform, the father and mother claiming, as testified by defendant, that the plaintiff had a weak heart. Also, defendant testified that he insisted on the family getting another doctor to aid him, and that the family declined to do so. At the end of 15 days when he realized that the bones were broken, defendant excuses his failure then to properly place the broken bones on the ground that he again asked for another doctor to assist him, and the family again declined to comply with his request, and that he did in both instances the best he could under the circumstances.

The evidence for plaintiff tended to show that the defendant did not at any time make a request for assistance, but insisted all the time that the injury was only a dislocation and that he did not need any assistance; and that, after defendant realized that the bones had been broken, he then insisted they were in proper position, and that he did not need any assistance. Defendant frankly concedes that he failed to make a proper diagnosis; but says that, by the time he ref cited plaintiff, her ankle was so swollen and enlarged that accurate diagnosis was exceedingly difficult. The record shows that the defendant is what is commonly called a "country doctor," and is not equipped for accurate diagnosis. All of the medical evidence both by plaintiff and defendant was to the effect that the bones in plaintiff's leg were not properly set. The doctors used as witnesses all testified that the bones could have begin properly set 15 days after the injury, when defendant first realized that plaintiff was suffering from a broken bone and not a dislocation.

Defendant makes three separate assignments of error, as follows: (1) That the court erred in refusing to permit defendant to prove his general reputation as a skillful physician. (2) That the court erred in permitting plaintiff to improperly cross-examine the physicians called as witnesses for defendant. (3) That the court erred in giving to the jury plaintiff's instruction No. 3. We will consider these in the order in which they appear.

1. Plaintiff had offered evidence tending to show that defendant had unskillfully and carelessly treated her injury, and to offset the weight of this evidence defendant offered to prove that in the community where he practiced that he had the reputation of being a careful and skillful physician. Objection was made to this character of evidence and sustained. The defendant made his offering, and the court excluded it, to which action defendant excepted. Plaintiff meets this issue by saying that she did not charge in her petition that her deformed ankle was due to defendant's lack of skill, but was due to the unskillful and careless treatment by defendant. As noted, supra, the petition charges:

"That in consequence of the negligence, carelessness, and unskillfulness aforesaid, plaintiff's said leg and ankle was crooked, enlarged, unshapely, and permanently crippled and disfigured."

Among other instructions given on behalf of plaintiff are the following:

"The court instructs the jury that one who holds himself out to the public as a physician and surgeon, the law implies a promise and duty on his part that he will use reasonable skill and diligence in the treatment and for the care of those who may employ hi n. Therefore, if you believe from the evidence that plaintiff employed defendant to set and heal the broken or injured bones of her leg, and that defendant negligently, carelessly, and unskillfully treated and managed said injury, and that said broken bones were not set, placed, or reduced, and through such negligence plaintiff's leg has become permanently injured, lamed, and disfigured, then you will find for the plaintiff in a sum not to exceed $10,000.

"The court instructs the jury that the questions in this case, for your determination are whether defendant, when called To see plaintiff on or about the date and time she received the injury, properly reduced and treated the broken and injured bones of plaintiff's leg, and gave her proper and necessary directions and instructions for the care of the same. If he did, then he cannot be held for any injury resulting from said broken or injured hones. On the other hand, if, when called to see plaintiff on said date, he failed to reduce and properly treat said broken or injured bones, and give proper and necessary directions for the care of the same, or failed to exercise such care and skill as is used by the average members of his profession, under like conditions and circumstances, in attempting to reduce a ad treat said broken and injured bones, then you should find the issues for plaintiff according to the rule given in instruction No. 1.

"The court instructs the jury that the terms `careless' and `negligent,' as used in these instructions, do not imply lack of skill or capacity, but simply a disregard of ordinary prudence, and, although you may believe the defendant to have possessed all the qualifications necessary to a competent and skillful physician and surgeon, yet if it has been proven that he was careless and negligent in reducing the broken bones of plaintiff's leg, and that through such carelessness and negligence plaintiff's leg has been permanently injured, lamed, and disfigured, they the mere fact that tie defendant may have been competent and skillful constitutes no defense to this action."

In Vanhooser v. Berghoff, 90 Mo. 487, 3 S. W. 72, the question here under consideration was raised. The petition in Vanhooser v. Berghoff, supra, is not set out in the opinion; but the court there uses this language:

"It will be perceived and remembered that the petition charged defendant both with a want of skill and with negligence in...