Willard v. Norcross

• Citation: 85 A. 904,86 Vt. 426
• Parties: WILLARD v. NORCROSS.
• Decision Date: 05 February 1913
• Court: Vermont Supreme Court

85 A. 904

86 Vt. 426

WILLARD

v. NORCROSS.

Supreme Court of Vermont. Essex.

Feb. 5, 1913.

Exceptions from Essex County Court; Alfred A. Hall, Judge.

Action by Hattie Willard against E. F. Norcross. Verdict and judgment for plaintiff, and defendant excepts. Reversed and rendered, and plaintiff's petition for a new trial dismissed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Carney & Blake, of Gardner, Mass., and Simonds & Searles, of St Johnsbury, for plaintiff.

George L. Hunt, of Montpelier, for defendant.

ROWELL, C. J. This is an action for malpractice as a physician and surgeon. On December 29, 1902, the plaintiff, as she was leaving her place of employment in Island Pond in the town of Brighton, in Essex county, slipped and fell forward onto her outstretched hands and hurt her wrists. The defendant, living and practicing in Island Pond, being called to attend her, undertook the case, and visited her three or four times before she left Island Pond and went to Charleston, Vt. The testimony on her part tended to show that, on defendant's first visit, her wrists were swollen and painful; that he took hold of them and moved them back and forth several times and examined them, and said no bones were broken; that she spoke about using liniment, and asked him if any particular kind was needed, and that he said any kind—horse liniment was good, it was strong—that he did not bandage them; that, two days after the injury, her wrists were swollen a little larger than normal, and were black and blue; and that for two months or more she was unable entirely to dress or to feed herself, and bad never since been entirely free from pain, does not sleep well, and is unable to use her wrists as effectually as before without causing them to become painful and swollen.

The testimony on her part, given by Drs. Van Allen and Smith, of Springfield, Mass., farther tended to show that she had at some time suffered an impacted Colle's fracture of both wrists. On cross-examination Dr. Smith testified, among other things, that the plaintiff had apparently a useful wrist, had a good movement of the hand; that he did not know about the strength of the wrist, her power to work with it, but, as far as movements were concerned, she had good movement; that she had more deformity than she would have bad, perhaps, if there had been some attempt at replacing the bones and holding them in position; that he should say she had a fair result; that he should not expect a perfect result in a person 55 years old; but that, as far as function is concerned, the mobility of the joint was as good as could be expected with any kind of treatment. On redirect examination he testified that the prognosis in case of a woman of 55 years old, suffering a Colle's fracture of both wrists, is good, good hand and useful wrist, with a slight deformity. The testimony of Dr. Smith further tended to show that a Colle's fracture is difficult of treatment; that, when the bone is only slightly cracked and no displacement, there is great danger of overlooking it and mistaking it for a sprain.

The plaintiff called the defendant in the opening of her case, and he testified that he had practiced his profession in Island Pond for more than 25 years; that on December 29, 1902, he undertook the professional care of the plaintiff, and, after a careful and satisfactory examination, diagnosed a sprain of both wrists, but found no fracture; that in his treatment of her he used only one form of splint, namely, a pillow to support her hands and wrists, which were in no way bound to the pillow, but only rested upon it.

Passing all else, for the present, at least, we come to consider whether there was any medical expert testimony tending to show that the defendant, in his treatment of the plaintiff, did not have and exercise the care and skill then had and exercised by physicians and surgeons in the treatment of like cases in the general neighborhood of said Brighton, for that question is raised by his motion for a verdict. That such testimony was essential to recovery is not denied, and is shown by Wilkin's Adm'r v. Brock, 81 Vt. 332, 343, 70 Atl. 572.

The bill of exceptions says that the only medical expert testimony introduced by the plaintiff for the purpose of showing that the defendant, in his treatment of the plaintiff, did not have and exercise such care and skill as physicians and surgeons in the general neighborhood of Brighton, in the same general line of practice as that of the defendant, had and exercised in like cases is found in the cross-examination of Dr. Stiles, of St Johnsbury, a witness called by the defendant and qualified as an expert in the X-ray, and also as a physician and surgeon; in the testimony of Dr. Mitchell, of Lancaster, N. H., deceased, given at the first trial and read at this; and in certain portions of the testimony of Dr. Leith given at the first trial and read at this. The bill then goes on to say that the defendant claimed that the plaintiff also improved Dr. Van Allen and Dr. Smith for the same purpose, and that, as to whether they were so improved, their testimony thereinafter recited is referred to and made a part thereof. The bill also says that it appeared that Drs. Mitchell and Leith were physicians and surgeons at Lancaster, about 40 miles from Island Pond, and having a thousand more population, and that they practiced there and in Essex county; that some of the evidence tended to show that they were physicians and surgeons of wide experience and practice, and prominent in their profession in the vicinity of Guildhall, the county seat of said county; and that their practice extended over a larger territory than the defendant's. As to whether the abovementioned testimony of Drs. Stiles, Mitchell, and Leith tended to show that the defendant, in his treatment of the plaintiff, did not have and exercise such care and skill as that which physicians and surgeons, practicing in the general neighborhood of Island Pond, in the same general line of practice, ordinarily had and exercised in the treatment of like cases, their testimony is referred to and made a part of the bill.

The evidence on the part of the defendant tended to show that he treated the plaintiff five times from December 29, 1902, to January 29, 1903, and attended her until she left Island Pond and went to Charleston; that at his first visit he found her in a nervous, excited condition, with considerable pain; that her wrists were somewhat swollen, but that she could use her fingers; that he manipulated her wrists and found no displacement of bone, no deformity, and no crepitus, and diagnosed the injury as a severe sprain of both wrists, and had in mind the possibility of a crack in the radius, but, on examination, found no indication of it; that he advised complete rest, with cold applications for the first 24 or 36 hours, and then hot applications, and that she should keep her hands at rest on a pillow; that the matter of using liniments was mentioned, and he suggested that it might be well to use them at the proper time; that at his second visit he found the plaintiff in practically the same condition, except less pain and swelling in the wrists, and advised hot applications, such as liniment, hot salt and water or beef brine, to take out the soreness; that at his last visit he found a marked improvement in the plaintiff, absence of swelling, pain greatly subdued, and such a state of recovery that he advised gentle movement of the wrists to prevent stiffness and inflammation; that neither splints nor bandages were required by good surgery under the circumstances in which he found the plaintiff, but that their use, both arms being involved, would have increased her discomfort and been burdensome to her, and, considering her nervous temperament, would have done more hurt than good, and prevented the application of local remedies; that his treatment was good surgery, and that therein he had and exercised all the care and skill that physicians and surgeons practicing in the general neighborhood of Island Pond, in the same general line of practice, ordinarily had and exercised in the treatment of like cases; that the plaintiff never suffered a Colle's fracture of either wrist, and, if she had, her recovery was perfect; that the pain she claimed to suffer in her wrists was partly pretended and the rest neurotic, which was in no way due to malpractice, but to a fixed idea in her mind resulting from brooding over her injury. But it must be noticed in this connection that the defendant testified otherwise, in some respect, at the first trial, for he then said, on cross-examination, that he thought the radius was cracked, but that there was no fracture nor displacement, and no deformity, except that made by the swelling. That testimony is evidence against him now, tending to show that the radius was cracked, as he then said it was, and that, according to some of the medical testimony, would make a Colle's fracture, and such will be taken to be the fact for the purposes of the motion.

Coming, now, to the medical expert testimony introduced by the plaintiff, as stated, to show malpractice, the defendant objects that, as matter of law, the testimony of these doctors, is not available to the plaintiff to establish the standard by which he was to be judged, for that they practiced in places much larger than Island Pond, one of which is in another jurisdiction where the standard required was not known, and for that they were more prominent in their profession than he, and of wider practice and greater experience, especially in fractures of this kind; and, though one witness said that they practiced in Essex county, he could not say that they had ever practiced in Island Pond. But the objection is not well taken, and the testimony stands for consideration.

Dr. Stiles said on cross-examination, in effect, that if, when 50 or 55 years old, the plaintiff...