Swanson v. Hood

• Decision Date: 16 January 1918
• Docket Number: 14071.
• Citation: 170 P. 135,99 Wash. 506
• Parties: SWANSON v. HOOD et ux.
• Court: Washington Supreme Court

170 P. 135

99 Wash. 506

SWANSON v. HOOD et ux.

No. 14071.

Supreme Court of Washington

January 16, 1918

Department 2. Appeal from Superior Court, Whatcom County; Augustus Brawley, Judge.

Action by Edward W. Swanson against Chas. S. Hood and Nellie K Hood, his wife. From a judgment for plaintiff, defendants appeal. Judgment reversed, and cause remanded for new trial.

Failure of deposition taken on stipulation to indicate actual adjournment from day to day held not to vitiate it.

Ellis Lewis Garretson, of Tacoma, W. E. Barnhart, of Ferndale, and Craven & Greene, of Bellingham, for appellants.

Bixby &amp Nightingale, of Bellingham, for respondent.

ELLIS C.J.

Action for damages claimed as resulting from alleged malpractice and negligence of a physician in setting a broken arm. The evidence is so voluminous, comprising some 1,200 pages of typewritten matter as to make it impracticable to discuss it in detail. We can do no more than present the bare outline necessary to an understanding of the general nature of the case.

On April 23, 1913, plaintiff, a merchant of Ferndale, Wash broke both bones of his right forearm while cranking an automobile. The radius was fractured transversely at a point about three inches, and the ulna obliquely at a point about five inches, above the wrist joint. Defendant Chas. S. Hood a practicing physician, residing in the same town, was called to set the arm. He first attempted to reduce the fractures with the assistance of a trained nurse, retaining the bones in temporary wooden splints. Thereafter, on the same day, he took plaintiff to Bellingham, Wash., where an X-ray examination disclosed that one of the bones had slipped out of alignment. Five unsuccessful attempts were made by defendant with the assistance of two other surgeons to reduce the fracture by manipulation. The radius would slip out of alignment at one time and the ulna at another. The three surgeons decided it was a case for incisive operation, as, in their opinion, facia or muscular tissue had intervened between the broken ends of the bones. Plaintiff was thereupon taken to a hospital in Bellingham, placed under an anesthetic, and the fracture treated according to the Lane plate method. This consists in attaching metallic plates to the broken bones with screws for the purpose of holding the ends in apposition and alignment. Three-holed plates were employed on each bone; that is, plates having a hole at either end and one in the middle to admit screws. Because of the danger of splitting the ulna, instead of using the screw in the middle hole, a wire was wound around the plate and bone. Plaintiff continued in the hospital the whole of the next day, during which he developed a considerable temperature and incipient bronchitis. On the following day he insisted on returning to his home in Ferndale, where he suffered a chill followed by high temperature. The day after reaching home a severe case of infection developed, and the wound over the ulna was on the following day opened and discharged much pus. Plaintiff charged that the infection was due to the use of unsterilized wire or some other negligence in the operation, while defendants claim that it was due to a constitutional condition resulting from the bronchial trouble. The wound was dressed twice a day for about two weeks, and then once a day until June 9, 1913, when the plate and wire were removed from the ulna. During all of this time the wound had been discharging pus, but after the removal of the plate and wire the discharge gradually subsided, and finally ceased. The surgeons who had been consulted when the plates were applied as well as defendant subsequently advised a curettement of the ulna for the removal of dead bone and waste matter so as to allow the ends of the living bone to bridge over the fracture. Plaintiff did not consent to the operation until about a month later. There was, however, some evidence that refendant consented to a delay. The curettement was performed on August 10, 1913. At that time the bones were in apposition and alignment, and there was a partial union of both fractures, that of the ulna, however, only at one edge and very slight. Defendant applied the last dressing on September 4, 1913, telling plaintiff that there was a delayed union, but with prudent care he would have a good arm by the next spring. There was evidence that plaintiff as early as July, 1913, made some use of the arm in driving his automobile and in working about his store. He testified, however, that he did not use the arm at all until Thanksgiving Day, 1913, and then only to lift a cup of coffee. He also testified that defendant had instructed him to use the arm some, and that defendant himself had taken hold of the hand and violently rotated it. The fracture did not heal properly, and in August, 1914, plaintiff had an examination made by another physician, and was informed that the ulna had no bony union, but was connected only by fibrous tissue, and that another operation in the nature of bone grafting would be necessary. Later other eminent surgeons were consulted and confirmed that diagnosis. The radius had not healed in proper alignment, but was slightly bowed or curved, and the fractured ends of the ulna were separated by a space of about one-eighth of an inch. On May 12, 1915, plaintiff commenced this action for damages against the community composed of Chas. S. Hood and wife, alleging malpractice and negligence on the part of the former, and alleging fraud on his part in willfully concealing from plaintiff at the time he discontinued treatment that there was a false union, and then assuring him that there was merely a delayed union, which would become complete and perfect in half a year without the necessity of further surgical assistance. The answer denied all the allegations of negligence on defendant's part, and set up as an affirmative defense contributory negligence on the part of the plaintiff in leaving the hospital contrary to instructions and in using the broken arm in tying bundles and driving his automobile, and in failing to comply promptly with defendant's recommendation in July, 1913, to submit to a currettement. The jury returned a verdict against defendants for $4,000. This was reduced by the lower court, plaintiff acquiescing, in the sum of $1,000, and judgment was entered for $3,000. Defendants appeal.

Respondent moves to strike the statement of facts on the ground that notice of settlement was not served upon him until sixty-three days after he had served upon appellants his proposed amendments and objections to the proposed statement. Our statute (Rem. Code, § 389) governing notice of settlement of statement of facts fixes no time therefor; hence a reasonable time is implied. In Floding v. Denholm, 40 Wash. 463, 82 P. 738, this court held that notice given four months subsequent to the filing of the proposed statement was not an unreasonable time when it appeared there was no intention of abandoning the appeal. In the case before us the proposed statement was served October 23, 1916, respondent's objections and proposed amendments were served November, 1916; the trial was before a nonresident judge, and, though his attendance in the county for the purpose of settlement was requested in November, he was unable to attend until December, 1916, at which time respondent demanded the statutory three days' written notice of settlement. The judge fixed as the time of settlement January 6, 1917, and three days' notice prior to that date was given to respondent. The case is well within the rule of the Floding Case. The motion is denied.

Respondent further moves to strike certain portions of the statement of facts which embody things which under Rem. Code, § 395, are required to be included in the transcript. While that section provides that 'it shall not be necessary or proper, for any purpose, to embody the same in any bill of exceptions or statement of facts,' and a duplication of the same matters in the transcript and statement is plainly not necessary, neither is it prejudicial except as affecting costs. This matter can be met, if necessary, when the appeal costs are taxed. The motion is denied.

Finally, respondent moves to strike from the statement the memorandum decision of the trial judge in ruling on the motion for judgment non obstante veredicto and for a new trial; this on the ground that such decisions, not being made a part of the statement of facts, are not properly a part of the record. The motion must be granted for the reason stated in our recent decision in Re Patterson, 167 P. 924.

On the merits appellants have assigned some 70 claims of error which require for their bare statement 41 pages of the printed brief. It is, of course, impracticable to discuss all of these within the limits of an opinion. We shall therefore confine our discussion to those points which seem to us determinative of the appeal.

Appellants contend that the evidence presented no issue of fact for the jury, in that no expert witness of the same school of practice as that of appellant would say that the method of treatment employed was not the proper one. It is asserted that the case is one for the court alone and to be determined upon expert testimony alone. Reliance is placed upon statements made in some of our decisions that it is enough if the treatment employed 'had the approval of at least a respectable minority of the medical profession who recognized it as the proper method of treatment.' Dahl v. Wagner, 87 Wash. 492, 151 P. 1079; Lorenz v. Booth, 84 Wash. 550, 147 P. 31. These decisions, however, go no further than to say that a physician cannot be held as for malpractice when no more is shown than a difference of opinion among experts as to...