Wilson v. Corbin

Decision Date07 March 1950
Docket NumberNo. 47493,47493
Citation41 N.W.2d 702,241 Iowa 593
CourtIowa Supreme Court

Stuart & Stuart, of Chariton, for appellant.

R. E. Killmar, of Osceola, and Elton A. Johnston, of Corydon, for appellee.

GARFIELD, Justice.

This is another of the many cases that have reached us where there is a lack of compliance with rule 340, Rules of Civil Procedure, in preparing the record on appeal. The rule contemplates that such record shall consist of an abstract of so much of the record in the trial court as is material to the appeal. Much in this record should have been omitted, including stricken portions of pleadings and evidence, motions to strike parts of pleadings, a multitude of objections to testimony which were overruled, numerous questions asked witnesses to which objections were sustained, and several other matters not in controversy here.

Since the record was agreed to by the parties pursuant to rule 340(h) we are not sure where the principal fault lies in failing to comply with our rule in preparing the record and therefore refrain from imposing or withholding costs because thereof as authorized by rule 340(g). However, attorneys are again urged to give attention to the plain, simple requirements of rule 340 in preparing the record on appeal.

On the merits the principal question presented here is the sufficiency of the evidence to warrant submission to the jury. Of course plaintiff is entitled to the most favorable construction of which the evidence is fairly susceptible. Bartholomew v. Butts, 232 Iowa 776, 779, 5 N.W.2d 7, 9, and citations. And see Wambold v. Brock, 236 Iowa 758, 759, 19 N.W.2d 582; Kirchner v. Dorsey & Dorsey, 226 Iowa 283, 288, 284 N.W. 171.

On May 14, 1946, plaintiff, 44, a carpenter, fell 12 to 14 feet from a barn and 'lit' in a sitting position. He sustained a compression fracture of the third lumbar vertebra although the injury was not correctly diagnosed until August 12, 1946, at the state university hospital in Iowa City. Plaintiff was taken to his home at Allerton about noon on May 14. That afternoon defendant, plaintiff's family doctor for three or four years who operated a hospital at nearby Corydon, was called but declined to go to plaintiff's home. Plaintiff suffered such pain that Dr. Shook, an osteopath at Corydon who had never before treated plaintiff, was called and came to the home about 10 that evening.

It was decided to take plaintiff that night in an ambulance to defendant's hospital to ascertain the extent of the injury and if there were any broken bones to take him to the state university hospital in Iowa City, about 170 miles from Corydon. Plaintiff, his wife and Dr. Shook arrived at the Corydon hospital about 11 p. m. Plaintiff was carried in on a stretcher.

Defendant was told all about how plaintiff had fallen, of the pain he was suffering and of the plan to take him on to Iowa City in the ambulance if there were any broken bones or anything was seriously wrong. Defendant and his assistant Dr. Buchtel examined plaintiff soon after his admission to the hospital. No injury to the spinal cord or nerves was found. Compression fractures of vertebrae often do not result in cord or nerve injury.

The next day Dr. Merrick, a dentist in the Corydon hospital who operated an X-ray machine there, presumably at defendant's request took one X-ray view of plaintiff's pelvis and fourth and fifth lumbar vertebrae. (The five lumbar vertebrae are just above the pelvis and below the dorsal vertebrae.) The X-ray film states, 'Part X-Rayed--Hips.' Defendant and Dr. Buchtel were present when the X-ray was taken and it is to be inferred defendant either told Dr. Merrick the region to be photographed or knew just what was done. In any event Drs. Corbin (defendant) and Buchtel placed plaintiff on the X-ray table.

Dr. Merrick does not recall that he was requested to take more than the one X-ray and says he would probably have done so if requested. The single view was from front to rear (anteroposterior) and not a lateral view which more clearly shows a compression-fractured vertebra. It was difficult to get a lateral view through the lower back on Dr. Merrick's machine without a device he did not have.

Since the X-ray picture taken in defendant's hospital showed only the fourth and fifth lumbar vertebrae of course it did not reveal the fracture in the third lumbar. Defendant told plaintiff's wife it was a perfect X-ray. On the strength of this X-ray and the observation and examination of plaintiff by Drs. Corbin and Buchtel, defendant assured plaintiff and his wife there were no broken bones and nothing was wrong with him. When plaintiff continued to suffer his wife asked defendant if they should not take plaintiff on to Iowa City and defendant replied. 'Hell no. There is nothing they can do for him there that I can't.'

Plaintiff stayed in defendant's hospital six days. No other X-ray was taken and no further examination made. Although plaintiff frequently complained that his pain did not subside and was unable to sit up defendant said plaintiff could leave the hospital on May 20. He gave plaintiff or his wife no instructions for his future care. When plaintiff left no one connected with the hospital assisted him. Defendant got mad and walked away because plaintiff's wife said she was then unable to pay the hospital bill but would arrange for it.

Plaintiff 'had a terrible time trying to dress.' Another patient in the same room testified: 'He went through rather painful maneuvers to get his clothes on. He groaned and complained of pain. When he left the room other people assisted him. Neither Dr. Corbin nor any nurse was there.'

Plaintiff stayed at home from May 21 to August 12. He was in bed much of the time but in reliance on assurances from defendant there was nothing wrong with him he attempted to walk by pushing a chair before him. Dr. Shook, who did not call on plaintiff while he was in defendant's hospital, was called on May 21 and saw plaintiff about three times a week for several weeks. He prescribed sleeping pills and pain pills and urged plaintiff to go to the hospital at Iowa City.

Plaintiff was taken in an ambulance to the university hospital in Iowa City on August 12 where he was examined by or under the direction of Dr. Steindler, head of the department of orthopedic surgery there, a widely recognized authority in that field. Two X-rays were taken of part of plaintiff's spine, an anteroposterior view and a lateral view. Both plainly show a compression fracture of the third lumbar vertebra. It appears to have been smashed and made wider than normal and a small fragment is broken off. Dr. Buchtel testified the fracture is 'very obvious' from the lateral X-ray taken in Iowa City.

At Iowa City plaintiff was given a body brace to wear and told to take plenty of rest. He returned to the university hospital on September 23 and October 19, 1946, and March 10 and April 26, 1947. On May 2, 1947, a 'spinal fusion' operation was performed on plaintiff at Iowa City by which the second, third, fourth and fifth lumbar vertebrae were left permanently rigid, like a solid sheet, for the rest of his life.

Plaintiff remained in the university hospital four weeks after this operation and was then at home in bed six weeks. He returned to his carpenter work in June, 1948, but still suffered pain and was unable to do the work he previously did.

In this action defendant is charged with negligence in failing to discover the fracture in plaintiff's spine, in advising plaintiff he had no fracture in his spine and there was no need for further examination and treatment at the university hospital, and in failing to advise plaintiff upon his leaving the hospital of his true condition and to instruct him as to future care.

At the close of plaintiff's evidence a verdict was directed for defendant on the ground plaintiff had failed to establish: (1) by expert testimony the standard of medical care applicable to Corydon or similar communities and breach thereof, (2) that the negligence charged against defendant was the proximate cause of plaintiff's damage, and (3) freedom from contributory negligence.

I. A physician is bound to use that degree of knowledge, skill, care, and attention ordinarily exercised by physicians under like circumstances and in like localities. He does not impliedly guarantee results. Bartholomew v. Butts, supra, 232 Iowa 776, 779, 5 N.W.2d 7, 9, and citations.

Of course malpractice may consist in lack of skill or care in diagnosis as well as in treatment. In re Johnson's Estate, 145 Neb. 333, 16 N.W.2d 504, 511, and citation; Kuechler v. Volgmann, 180 Wis. 238, 192 N.W. 1015, 31 A.L.R. 826, 829, and citation; 41 Am.Jur., Physicians and Surgeons, section 92.

A patient is entitled to a thorough and careful examination such as his condition and attending circumstances will permit, with such diligence and methods of diagnosis as are usually approved and practiced by physicians of ordinary learning, judgment and skill in the community or similar localities. A physician does not insure the correctness of his diagnosis. Ramberg v. Morgan, 209 Iowa 474, 477, 218 N.W. 492. See also In re Johnson's Estate, supra, 145 Neb. 333, 16 N.W.2d 504, 510, and citations; Hill v. Boughton, 146 Fla. 505, 1 So.2d 610, 134 A.L.R. 678, 682; 41 Am.Jur., Physicians and Surgeons, section 92.

Ordinarily, evidence of the requisite skill and care exercised by a physician must come from experts. Bartholomew v. Butts, supra, and citations. But there are exceptions to this rule. Whetstine v. Moravec, 228 Iowa 352, 370 et seq., 291 N.W. 425, and citations, especially Kopecky v. Hasek Bros., 180 Iowa 45, 49, 162 N.W. 828, 830, also cited with approval in Wambold v. Brock, 236 Iowa 758, 762, 19 N.W.2d 582, 584; Peterson v. Hunt, 197 Wash. 255, 84 P.2d 999, 1000, and citations.

It is undisputed that defendant assured plaintiff nothing was wrong with him when in...

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