Viita v. Dolan

• Decision Date: 21 January 1916
• Docket Number: No. 19598[193].,19598[193].
• Citation: 155 N.W. 1077,132 Minn. 128
• Parties: VIITA v. DOLAN et al.
• Court: Minnesota Supreme Court

132 Minn. 128

155 N.W. 1077

VIITA

v.DOLAN et al.

No. 19598[193].

Supreme Court of Minnesota.

Jan. 21, 1916.

Appeal from District Court, Carlton County; Herbert A. Dancer, Judge.

Action by Gust Viita against William G. Dolan and another. From denial of motion in the alternative for judgment notwithstanding the verdict or for new trial, James Fleming, defendant, appeals. Affirmed.

Syllabus by the Court

Assuming that the relation of patient and physician existed between plaintiff and defendants, the evidence was sufficient to justify the jury in finding that the physician failed to exercise towards the patient that degree of care and skill which the law requires.

Plaintiff's employer had an arrangement with defendants, physicians, who operated a hospital in Cloquet, by which the employer deducted a certain sum each month from the pay of each employé, and turned over the sums so deducted to defendants, who agreed, for such compensation, to care for and treat all injured employés which the employer should send to them. Plaintiff was injured, and was taken to defendants' hospital and treated by them under this arrangement. It is held that the relation of patient and physician existed between plaintiff and defendants, and that the latter owed plaintiff the duty to exercise ordinary care and skill in treating him.

A settlement between plaintiff and his employer under the Workmen's Compensation Act (Gen. St. 1913, § 8195 et seq.), by which the employer was released from all claims on account of the injury to plaintiff, did not operate as a settlement or release of any claim for malpractice which plaintiff might have against the physicians who treated him.

The damages awarded are not excessive.

Certain rulings of the trial court on the admission of evidence held not erroneous.

The trial court refused to instruct the jury as requested that defendant was bound to possess and exercise only the reasonable degree of care and skill possessed and exercised by physicians and surgeons in similar localities to that in which defendant practiced, and is protected from the charge of negligence if he adopts and uses in performing an operation the methods in use among competent surgeons in the locality in which the operation takes place. In its general charge the court instructed the jury the defendant was required to exercise such reasonable care and skill as an ordinary physician or surgeon in good practice would exercise under like circumstances, and that among the circumstances to be considered was the location of the physician in Cloquet, rather than in Duluth, St. Paul, or some other place. It is held that the court, in refusing to give the requested instructions, and giving, instead, the instructions quoted, committed no reversible error.

While the jury was being selected, defendants' attorney testified that a certain company was interested in the defense of the case. Defendant was then sworn and asked if this was true. Held, that it was not prejudicial error to overrule an objection to this question, but the conduct of plaintiff's counsel in asking the question is disapproved. Abbott, MacPherran, Lewis & Gilbert, of Duluth, for appellant.

Andrew Nelson and Geo. B. Sjoselius, both of Duluth, for respondent.

BUNN, J.

Defendants were partners as physicians and surgeons at Cloquet, Minn. Plaintiff claims that defendant Dolan, who died after this action was commenced, was guilty of negligence and want of skill in his treatment of an injury received by plaintiff. The trial resulted in a verdict of $2,000 against defendant Fleming, who appeals from an order denying his motion in the alternative for judgment notwithstanding the verdict or a new trial. It is contended that the verdict is not justified by the evidence. The various grounds for this contention will be noticed later. The facts are not much in dispute, and the evidence justified the jury in finding them to be as follows:

Plaintiff was in the employ of Johnson-Wentworth Company in skidding logs near Cloquet. February 5, 1914, while engaged in this employment, his left leg was fractured between the knee and ankle. Defendants operated a hospital at Cloquet, and were there engaged in the practice of their profession. Johnson-Wentworth Company and defendants had an arrangement by which the company deducted 75 cents per month from the pay of each employé, and turned this over to defendants, who agreed for this compensation to care for and treat injured employés which the company should send to them. Plaintiff, after his injury, received a ticket from his employer, presented it to defendants, and was taken into the hospital and treated. Upon this state of facts defendant bases a claim that the relation of physician and patient did not exist.

Defendant Dolan attended plaintiff. The injured leg was put in a plaster cast and allowed to so remain for a period of 11 days. The cast was then removed, and a new one put on. Soon after this plaintiff observed that his left foot turned outward, and called Dr. Dolan's attention to this condition, which, however, continued to exist during his 11 weeks' stay at the hospital, and existed at the time of the trial. The cause of this eversion of the foot was imperfect approximation of the fractured ends of the bones. Plaintiff claimed, and the evidence tended to show, that this failure to get a straight union was due to the omission of defendants to apply an extension weight to the injured limb. Negligence is also claimed in respect to their failure to use a ‘facture box’ or to take an X-ray photograph for the purpose of diagnosis. The evidence leaves no doubt that there was a poor result, and the inquiry on this branch of the case is whether the finding that this was due to negligence or want of skill on the part of Dr. Dolan is sustained by the evidence.

June 1, 1914, plaintiff and his employer, Johnson-Wentworth Company, agreed upon a settlement for the injuries received by plaintiff in the accident, and petitioned the court for its approval under the terms of the Workmen's Compensation Act. The court approved the settlement agreed upon, which contained the provision that, when all payments thereunder have been made, ‘the employer shall be and hereby is released from all claims on account of said injury, under said act or otherwise.’ The claim here is that this settlement released the employer, and also the defendant, from all liability for negligence in the treatment of plaintiff's injury.

The principal contentions of defendant, as indicated in the above statement of facts, are: (1) Assuming that the relation of physician and patient existed, the evidence is not sufficient to justify the jury in finding that the physician failed to exercise that degree of care and skill which the law requires; (2) the relation of physician and patient did not exist; (3) the settlement between plaintiff and his employer bars this action; (4) the damages are excessive. It is further claimed that there were prejudicial errors in certain rulings on the admission of evidence, and in refusing to give certain instructions requested by defendant. There is also a claim of misconduct of counsel.

[1] 1. We have said that there is little doubt that there was a poor result. There was not a good union of the fractured ends of the bones. This resulted in a permanent eversion of the left foot, and the ankle and knee joints no longer operate on the same plane. In consequence of these conditions plaintiff tires very easily, and suffers considerable soreness due to the twisting of the limbs in opposite directions. His earning capacity is materially and permanently lessened. Two experienced and apparently reputable physicians and surgeons stated positively that the result was not good, and gave their opinions that the treatment given plaintiff was improper, and not good surgery. They testified that a fracture box should have been employed to hold the limb in a proper position and an extension weight applied to draw down and overcome muscular contraction, which caused the overlapping of the fractured ends in this case. They also criticized the failure of Dr. Dolan to take an X-ray photograph to determine whether the approximation of the bones was correct. Defendants' experts gave opinions to the effect that the treatment was proper. The question was quite plainly one for the jury to decide, and we feel wholly unwarranted in saying that the jury was palpably wrong in believing the expert testimony of plaintiff's witnesses, rather than that of defendants' witnesses. We need not repeat what was said in Sawyer v. Berthold, 116 Minn. 441, 134 N. W. 120, to the effect that an expert witness may base his opinion on the result alone, and in the case at bar the opinions of the experts that the treatment was improper were based on the testimony as to what the treatment actually was, as well as upon the poor result achieved. We must hold, assuming that the relation of physician and patient existed, that the evidence sustains the finding of the jury that the physician failed in his legal duty toward the patient, and that this was the cause of the poor result. We do not see that Martin v. Courtney, 75 Minn. 255, 77 N. W. 813, Id.,87 Minn. 197, 91 N. W. 487, or Stalock v. Holm, 100 Minn. 276, 111 N. W. 264,9 L. R. A. (N. S.) 712, are at all decisive of the present case, or that anything said in those leading cases is of assistance to the defendant here. We fully appreciate the elements which the surgeon has to contend with in the treatment of his patient, and the injustice often involved in a charge of malpractice. The cases referred to so fully discuss these features, as do cases from other jurisdictions cited by defendant, that we can add nothing of value. The present case is simply one of conflicting expert testimony, with nothing in the facts as to the treatment, or in the probability or probative force of the evidence for defendant, that would make the granting of a...