Whitson v. Hillis

• Decision Date: 13 October 1927
• Docket Number: No. 5239.,5239.
• Citation: 55 N.D. 797,215 N.W. 480
• Parties: WHITSON v. HILLIS.
• Court: North Dakota Supreme Court

55 N.D. 797

215 N.W. 480

WHITSON

v.HILLIS.

No. 5239.

Supreme Court of North Dakota.

April 22, 1927.

Rehearing Denied Oct. 13, 1927.

Syllabus by the Court.

Ordinarily, in a malpractice action, the plaintiff is required to prove by expert testimony the standard of skill possessed by physicians and surgeons in the same general line of practice as the defendant and practicing in similar localities, but it is held, for reasons stated in the opinion, that the failure to employ available and well-known means of diagnosis, coupled with the failure to locate a known fracture and the continued treatment for a fracture at a place where there was no fracture, is evidence of negligence.

Appeal from District Court, Ward County; Jno. C. Lowe, Judge.

Action by Herbert Whitson against Dr. H. J. Hillis for malpractice. From a judgment for plaintiff, defendant appeals. Affirmed.L. J. Palda, Jr., C. E. Brace, and Robert W. Palda, all of Minot, for appellant.

E. R. Sinkler and G. O. Brekke, both of Minot, for respondent.

BIRDZELL, C. J.

This is an action to recover damages for alleged malpractice. In the trial court the plaintiff had judgment, and the defendant appeals. In the complaint it is alleged that on the 1st day of January, 1925, the plaintiff sustained a fracture of his right leg just above the ankle joint, and the defendant was called to attend him. The charges of negligence are that, in attempting to diagnose and treat the fracture, the plaintiff negligently and carelessly failed to correctly diagnose and ascertain the nature of the injury; that he diagnosed the injury as a fracture of the smaller bone of the right leg about three inches above the ankle joint and a break in the larger bone about three inches above the “diagnosed” break in the smaller bone; whereas in truth and in fact there was no break in the large bone at the point where the defendant diagnosed the same to be, but that there was a break in this bone near the ankle joint, which the defendant negligently and carelessly failed to ascertain and discover; that the defendant negligently failed to place the bones in their proper position to reduce said fracture; that he had negligently and carelessly permitted the bones to unite in an improper position; and that he negligently failed to use proper appliances for the purpose of reducing the fracture and to take proper means to discover the nature of the injury, negligently allowing the fracture to heal and the plaintiff's foot to become in an everted position.

Upon the trial the plaintiff sought to prove these allegations by placing the defendant on the witness stand for cross-examination and by the testimony of the plaintiff and his father and mother. Inasmuch as the principal assignment of error urged upon the appeal is the insufficiency of the evidence, it will be necessary to briefly summarize the evidence on the vital points. It seems that on the 1st of January, 1925, the plaintiff sustained an injury to his right leg through the falling of a horse he was riding. He was taken to his home near Berthold, and the defendant, a practicing physician of Berthold, who was at the time in Minot, was called by telephone to attend him. The defendant advised some emergency treatment, and reached the plaintiff's home at about 3:30 in the afternoon. On the trial, when called for cross-examination, the defendant testified that he made an examination of the right leg, found it to be crooked, and found that there was a great deal of swelling, and on handling it or manipulating it he could feel that there was a fracture. He discovered that both bones of the leg were fractured, the small bone being fractured about four inches above the ankle joint, and the larger bone, he thought, about six inches above the ankle, as there was swelling there; that it felt like an injury to the bone, but no displacement, but he told those present that there was a fracture at that place. He diagnosed it as a fracture. There was some talk with reference to an X-ray picture, and, as nearly as he could recall, after manipulating the leg, he suggested than an X-ray picture was apparently not necessary on account of the fact that the leg came so straight, but, if they wanted one, it was all right with him-he would be glad to have one. He found the two fractures and swelling and injury to the soft parts. He found no fracture in the lower end of the tibia or large bone. He examined the ankle, but, on account of the swelling, he could not feel a fracture. He straightened out the leg, and put splints on it for the purpose of reducing the fractures that he had diagnosed. In addition to these, he used bandages and adhesive tape. He used the splints and bandages to hold the bones and joint the way he put them, but at the time he had no knowledge of a fracture of the tibia near the ankle joint, and did not use them for the purpose of reducing such fracture. The plaintiff's leg was left in the splints until the 7th of January. At that time the swelling had gone down partially, and the leg was not crooked. He then applied other splints, but not for the purpose of reducing any fracture of the tibia near the ankle joint, as he had not discovered it. He treated the plaintiff again on the 11th of January, taking off the splints, bandages, and padding and replacing them. At that time the leg was straight. It, he said, “remained straight as long as he did not walk upon it.” It “remained straight until the first time he was to the office, which, I think, was the 4th of March. It was straight until he stepped upon it and turned it out.” When the foot turned out on the 4th of March, the defendant thought the difficulty was in the ankle. He adjusted adhesive bandages to correct that, and told the plaintiff not to use the foot. At that time it was still swollen. He had not yet discovered that there was a fracture at the lower end of the tibia. He first discovered that some time between the 16th and the 27th of March when he saw an X-ray picture. The broken ends of the bone were not in apposition at that time. The defendant admitted that he had incorrectly diagnosed the condition of the bone six inches from the ankle when he diagnosed it as fractured at that point. There was an injury at that point, but not a fracture. In answer to questions the witness stated that to reduce a fracture it is necessary and proper practice to exert pressure and manipulate the bones to get them in proper place, and then put something on to keep them in place.

The remaining facts, as gathered from the testimony, may be briefly summarized: The plaintiff went to another doctor; had X-ray pictures taken, and it was discovered that the lower end of the tibia was broken near the ankle joint; that there had been no union; that some callous had formed which would preclude a union, even though the broken parts were placed in apposition, until something further was done by way of scraping off the callous and stimulating the efforts of nature to effect a union. This was attempted through an operation performed by another doctor in which there was an effort to induce a union by making an opening near the fracture, scraping the ends of the bones, and nailing the detached portion on to the main portion, which operation was not...