Taylor v. Kidd

• Decision Date: 29 January 1913
• Citation: 129 P. 406,72 Wash. 18
• Parties: TAYLOR v. KIDD.
• Court: Washington Supreme Court

129 P. 406

72 Wash. 18

TAYLOR v. KIDD.

Supreme Court of Washington

January 29, 1913

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by J. G. Taylor against A. B. Kidd. Judgment for plaintiff and defendant appeals. Affirmed conditionally.

C. R. Hawkins and Peters & Powell, all of Seattle for appellant.

Douglas Lane & Douglas, of Seattle, for respondent.

FULLERTON J.

On March 6, 1909, the respondent Taylor, while working on the roof of a house, fell therefrom to the ground, a distance of about 25 feet, and received severe and painful injuries. He employed the appellant, a physician and surgeon, to attend him. The physician found him suffering with two broken ribs, a severe strain of the left shoulder, and various contusions upon his body. The doctor immobilized the shoulder and ribs, accorded the contusions the usual treatment, and put the patient to bed, where he remained for some little time. Later on the patient was able to get up and move about, and seemingly gradually improved until the latter part of June, 1909. At this time his broken ribs had adhered, the contusions on his body had healed, and he had acquired some use of his injured shoulder. His shoulder, however, was not thought to be making satisfactory progress. The arm had very little motion, and attempts to manipulate it caused pain, and it had also become somewhat atrophied. The doctor diagnosed the trouble with the arm as an adhesion of the fibrous tissue surrounding the glenoid cavity of the scapula, in which the head of the humerus articulates. This he had endeavored to reduce by massage and manipulation, but without success. In the early part of July the appellant advised the respondent that a more rigorous manipulation of his arm than could be had without the use of an anaesthetic was necessary in order to break up the adhesions, and appointed a time for the patient to meet him at his office and receive such treatment. The respondent attended at the office at the time appointed, and received one such treatment which gave him some pain and caused considerable swelling in the arm and shoulder. Thereafter, on July 17, 1909, when the pain and swelling from the first treatment had somewhat subsided, the respondent went to the office a second time and his arm was subjected to a further and more rigorous manipulation by the appellant and his assistant, Dr. Mason. This last operation left the arm in an inflamed condition and much swelling and pain resulted, causing the patient to take to his bed, where he was confined for about 10 days. Between this date and August 5th following the appellant visited him almost daily, and such times as his arm would admit of it subjected it to movement and manipulation. On the lastnamed date the appellant discontinued the manipulation, prescribed treatment for reducing the swelling and inflammation, and told the patient to come to his office as soon as the swelling should be reduced, when he would examine his shoulder with an X-ray. The respondent, however, did not call again at the appellant's office, but on September 6, 1909, consulted with another surgeon in Seattle, a Dr. Bates, who subjected him to an X-ray examination. The plate disclosed a dislocation of the shoulder joint, the head of the humerus projecting downward and inward. To correct the difficulty Dr. Bates advised a surgical operation on the shoulder, which he afterwards performed with the assistance of a Dr. Hanley. On cutting into the shoulder the doctor found the head of the humerus in a friable and porous condition, so much so that it was deemed necessary to cut away the end of the humerus for some two and one-half inches. After removing this portion of the humerus, the end remaining was set back into the shoulder cavity, and the wound inclosed and dressed. At the time of the trial the wound had entirely healed, the arm, while much shorter than it was originally, had recovered much of its lost motion and usefulness, having as the doctor stated, perhaps, 75 per centum of its original power and scope of motion. The respondent instituted this action on March 29, 1911, against the appellant for malpractice. In his complaint he alleged the fact of his injury, the employment of the appellant to treat the same, and the manner of appellant's treatment thereof, alleging as negligence that the appellant dislocated his arm on July 17, 1909, while attempting to break up the adhesions arising from the disuse of the arm following the original injury. Issue was taken on the complaint, and a trial had which resulted in a verdict against the appellant in the sum of $5,500. From the judgment entered thereon this appeal is prosecuted.

The appellant first assigns that the court erred in refusing to sustain his several challenges to the sufficiency of the evidence, arguing that the evidence fails to show that he did not treat the injury of the respondent with that ordinary diligence and skill which physicians and surgeons, practicing in the same and similar communities, ordinarily exercise in like cases. But we think there was on this question sufficient evidence to make a case for the jury. Aside from the general outline of the evidence which we have heretofore given, there was the positive evidence of a physician who examined the arm shortly prior to July 17, 1909, that there was then no evidence of dislocation, and it will be remembered that this was also the appellant's original diagnosis. There was therefore evidence from which the jury could well have found that the appellant dislocated the respondent's arm in his endeavor to remedy its anchylosed condition following the original injury; and the fact of such dislocation, and the further fact that he did not discover the dislocation at the times he subsequently manipulated the arm, was clearly evidence that he did not exercise the diligence and skill required of the ordinary physician and surgeon. For such injury as the respondent suffered because of such lack of diligence and skill he was, of course, entitled to recover from the appellant.

The respondent was permitted, over the objection of the appellant, to propound to his expert witnesses certain questions containing a summary of the facts the evidence on his part tended to establish concerning the treatment accorded the respondent by the appellant, and an inquiry whether the treatment thus accorded was such treatment as an ordinarily skillful physician, practicing in the community in which the appellant practiced, would bring to the care of such an injury. This is assigned as error, because, it is argued, it allows the witness to determine the very question the jury is impaneled to determine. But we think the questions not objectionable on the...