Whitesell v. Hill

• Decision Date: 10 April 1897
• Citation: 101 Iowa 629,70 N.W. 750
• Parties: WHITESELL v. HILL.
• Court: Iowa Supreme Court

101 Iowa 629

70 N.W. 750

WHITESELL

v.HILL.

Supreme Court of Iowa.

April 10, 1897.

Appeal from district court, Hardin county; B. P. Birdsall, Judge.

Action at law to recover damages for alleged malpractice by the defendant. There was a trial on the merits, and a verdict and judgment in favor of the plaintiff, from which he appeals. Affirmed.

Kinne, C. J., dissenting.

J. H. Scales, for appellant.

F. M. Williams and Albrook & Lundy, for appellee.

ROBINSON, J.

In October, 1892, the plaintiff suffered an oblique fracture of the humerus of the left arm, at a point about three inches above the elbow; and the defendant, a physician, was employed to reduce the fracture. He did so, and continued to treat the injury at intervals until about the middle of December, 1892, when it was regarded as healed. The arm is now crooked. The plaintiff alleges that its condition is due to negligent and unskillful treatment on the part of the defendant, in consequence of which the fracture was not properly reduced; that the parts of the bone did not and could not unite, but remained out of place and disconnected, so that recovery was impossible; and that the arm is left in a deformed and disabled condition. The defendant denies the alleged negligence and lack of skill in treating the injury, and avers that the condition of the arm is due to a fall upon it after the defendant had ceased to treat it; that by reason of the fall the arm was injured and became bent; and that its present condition is due to the negligence of the plaintiff in failing to call a physician and have the arm treated after the fall. The defendant, in a counterclaim, seeks to recover $48 for services rendered in reducing and treating the fracture. The verdict was for one dollar, and the judgment was for that sum and costs. This is the second submission of this case in this court. 66 N. W. 894. After the opinion on the first submission was filed, a rehearing was granted, and the cause is again submitted for our consideration.

1. The court, in the fourth paragraph of its charge, instructed the jury that it was the duty of the defendant, under his employment, “to exercise that degree of proficiency, skill, and care in the treatment of the plaintiff's injuries that is ordinarily possessed and exercised by men of average skill, learning, and proficiency in the medical profession generally, in the vicinity of where the defendant practiced, and was bound to possess and exercise such degree of proficiency, skill, and care, both in the reduction of the fracture of plaintiff's arm, and in its treatment at the time and afterwards during the course of his employment.” In the fifth paragraph the court further charged the jury that “negligence, in this case, consists of the doing by the defendant, in the treatment of the plaintiff's injury, of some act which a physician and surgeon possessing the average proficiency, skill, and care of the medical profession in the vicinity of defendant's residence would not ordinarily do under like circumstances, or the omission to do some act in such treatment which a physician or surgeon possessing such average proficiency, skill, and care would ordinarily do under like circumstances.” The application of the rule thus given to the evidence in the case was then stated. The appellant claims that the portions of the charge thus given were conflicting and erroneous. We do not think there is any material conflict between them, but are of the opinion that the rule in regard to proficiency, skill, and care required in such cases was erroneously stated. In Smothers v. Hanks, 34 Iowa, 287, it was said that the skill and diligence required is “that ordinarily exercised in the profession by the members thereof, as a body,--that is, the average of the reasonable skill and diligence ordinarily exercised by the profession as a whole”; that, “in determining the ordinary skill, regard must be had to the improvements and advanced state of the profession at the time”; and that “it is also, doubtless, true that the standard of ordinary skill may vary even in the same state, according to the greater or lesser opportunities offered by the locality for observation and practice, from which alone the highest degree of skill can be acquired.” See, also, Almond v. Nugent, Id. 300; Peck v. Hutchinson, 88 Iowa, 327, 55 N. W. 511. It was said in Small v. Howard, 128 Mass. 136, of a physician charged with malpractice, that “he was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practicing in similar localities, with opportunities for no larger experience, ordinarily possess.” In Gramm v. Boener, 56 Ind. 497, it is said: “It seems to us that physicians or surgeons practicing in small towns or rural or sparsely-populated districts are bound to possess and exercise at least the average degree of skill possessed by and exercised by the profession in such localities generally. It will not do, as we think, to say that, if a surgeon or physician has exercised such a degree of skill as is ordinarily exercised in the particular locality in which he practices, it will be sufficient. There might be but few practicing in the given locality, all of whom might be quacks, ignorant pretenders to knowledge not possessed by them; and it would not do to say that, because one possessed and exercised as much skill as the others, he could not be chargeable with the want of reasonable skill.” See, also, Kelsey v. Hay, 84 Ind. 189;Howard v. Grover, 48 Am. Dec. 478, note; Wilmot v. Howard, 39 Vt. 447;Pelky v. Palmer (Mich.) 67 N. W. 561;Tefft v. Wilcox, 6 Kan. 46, 60. There are authorities which tend to support the rule as stated by the district court. Gates v. Fleischer, 67 Wis. 506, 30 N. W. 674;Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228;Lawson v. Conaway (W. Va.) 16 S. E. 564;Tefft v. Wilcox, 6 Kan. 46;Hathorn v. Richmond, 48 Vt. 557, 14 Am. & Eng. Enc. Law, 78. But we are of the opinion that the correct rule is that a physician and surgeon, when employed in his professional capacity, is required to exercise that...