Wright v. Conway

• Decision Date: 08 December 1925
• Docket Number: 1170
• Citation: 241 P. 369,34 Wyo. 1
• Parties: WRIGHT v. CONWAY. [*]
• Court: Wyoming Supreme Court

241 P. 369

34 Wyo. 1

WRIGHT v. CONWAY. ^[*]

No. 1170

Supreme Court of Wyoming

December 8, 1925

Rehearing Denied 34 Wyo. 1 at 42.

ERROR to District Court, Laramie County; WILLIAM A. RINER, Judge.

Judgment for defendant, and plaintiff brings error. Rehearing denied.

Affirmed.

C. V Garnett and Osmer E. Smith for plaintiff in error.

The court erred in directing a verdict for defendant, plaintiff having established negligence; McCollum vs. Barr (Cal.) 176 P. 463; Baldwin vs. Gaines (Vt.) 102 A. 338; Swanson vs. Hood, 170 P. 135; Hickerson vs. Neely (Ky.) 54 S.W. 842; Tadlock vs. Lloyd, 173 P. 200; Peterson vs. R. R. Co. 70 Mo. 1c. 608; Krinard vs. Westermann (Mo.) 216 S.W. 938; Moehlenbrock vs. Parke (Minn.) 176 N.W. 169; Leisenring vs. La Croix, 94 N.W. 1009; defendant's negligence resulted in damages to plaintiff; Leisenring vs. LeCroix, supra; Eicholtz vs. Poe (Mo.) 217 S.W. 282; proof that plaintiff's leg was burned by hot applications was of itself sufficient to submit the cause to the jury; negligence may be inferred from the facts and inferences to be drawn therefrom; 29 Cyc. 622 Krinard vs. Westermann, 216 S.W. 938; plaintiff proved mal-apposition; McCollum vs. Barr, 176 P. 463; the method of treatment was faultless but there was negligence in the use of that method; Swanson vs. Hood, 170 P. 135; failure to secure apposition warranted submission to the jury; Baldwin vs. Gaines, 102 A. 338; Schulte vs. Tasche, 165 N.W. 292; plaintiff was damaged without question. The law does not require direct and positive evidence of negligence, but it may be inferred from circumstances; 29 Cyc. 622 and cases cited; Kelley vs. R. R. Co. 70 Mo. 1; negligence may consist in not giving proper instructions or making frequent examinations after proper treatment given in the beginning; Miles vs. Hoffman, 221 P. 316; Howatt vs. Cartwright, 222 P. 496; timely use of X ray pictures are essential in the treatment of such cases; Anderson vs. Satterlund, 197 N.W. 102; James vs. Grigsby, 220 P. 267.

C. L. Rigdon and D. J. Howell for defendant in error.

When plaintiff produces evidence that is consistent with an hypothesis of negligence, and also lack of negligence, it tends to establish neither; Ewing vs. Goode, 73 F. 442; plaintiff was required to prove error in diagnosis resulting from negligence, the lack of skill, improper treatment and actual damage resulting therefrom; Willard vs. Norcross, (Vt.) 85 A. 904; McGraw vs. Kerr (Colo.) 128 P. 870; Osborn vs. Carey (Id.) 132 P. 967; Kernodle vs. Elder (Okla.) 102 P. 138; Nickerson vs. Gerrish (Me.) 96 A. 235; Von Boskirk vs. Pinto, (Nebr.) 155 N.W. 889; English vs. Free (Pa.) 55 A. 777; Wells vs. Ferry Lbr. Co. (Wash.) 107 P. 969; Dishman vs. Assn. (Wash.) 164 P. 943; Tomer vs. Aiken (Ia.) 101 N.W. 769; the diagnosis and initial treatment were correct; there was no evidence that would sustain a verdict to the contrary; Dye vs. Corbin (W. Va.) 53 S.E. 147; Miller vs. Toles, (Mich.) 150 N.W. 118; the overruling of the end to end apposition was the result of removing the patient from Cheyenne to Laramie; an X-ray would have added nothing to the diagnosis; the surgeon is required to exercise only his best judgment as to the necessity or value of an X-ray in the case under treatment; Snearly vs. McCarthy, (Ia.) 161 N.W. 108; Beadle vs. Pains, (Ore.) 80 P. 903; negligence is measured by the customary practice and not by the practice of any single physician; Schumacher vs. Hospital (Mont.) 193 P. 397; Adolay vs. Miller (Ind.) 111 N.E. 313; Staloch vs. Holm (Minn.) 111 N.E. 264; Spain vs. Burch, (Mo.) 154 S.W. 172; plaintiff proved that partial apposition would ordinarily result in union. The basis of comparison is stated in Kernodle vs. Elder, (Okla.) 102 P. 138; a physician is never considered as warranting a cure, unless under a special contract for that purpose; his obligation is, that he possesses a reasonable degree of learning, skill, experience, care and diligence; extraordinary skill, diligence or care are not exacted; Dye vs. Corbin, (W. Va.) 53 S.E. 147; Sheldon vs. Wright (Vt.) 67 A. 807; Willard vs. Norcross (Vt.) 85 A. 904; Paulich vs. Nipple (Kans.) 180 P. 771; Spain vs. Burch (Mo.) 154 S.W. 172; Edwards vs. Uland (Ind.) 131 N.E. 240; DeBruine vs. Voskuile (Wis.) 169 N.W. 288; Adams vs. Junger (Iowa) 139 N.W. 1096; Hills vs. Shaw, (Ore.) 137 P. 229; Champion vs. Keith (Okla.) 87 P. 845; Dean vs. Seeman (S. Dak.) 176 N.W. 649; Lehman vs. Knott, (Ore.) 196 P. 476; Lawson vs. Conaway (W. Va.) 16 S.E. 564; a physician is not a guarantor of a cure; there is no presumption of negligence or want of skill for failure to cure; where a system used has the approval of even a respectable minority the physician's negligence cannot be disputed; Dahl vs. Wagner (Wash.) 151 P. 1079; Lorenz vs. Booth (Wash.) 147 P. 31; and cases cited; the burns complained of as resulting from hot packs applied by nurses did not establish negligence, nor create liability as against defendant, as he is not liable for the negligence of hospital nurses, if he had no connection with any negligent act; Broz vs. Omaha Assn. (Nebr.) 148 N.W. 575; Baker vs. Wentworth (Mass.) 29 N.E. 589; Reynolds vs. Smith (Iowa) 127 N.W. 192; Malkowski vs. Graham (Wis.) 172 N.W. 785; Morrison vs. Henke (Wis.) 160 N.W. 173; Stewart vs. Manasses, 244 P. 221; 90 A. 574; Harris vs. Fall (Ill.) 177 F. 79.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

Damages are sought in this action for alleged malpractice of the defendant, when employed as a physician and surgeon to attend the plaintiff for an injury described as a fracture of the femur bone of his right leg. At the close of plaintiff's evidence in the district court a verdict was directed for defendant, and the cause is here on error for the review of the judgment rendered thereon. The several assignments of error each present substantially the same question; the sufficiency of the evidence to require its submission to the jury, upon charges of negligence in diagnosis and treatment, especially in a failure to use X-ray to aid diagnosis, and in burning the flesh of the leg by hot applications.

The fracture is conceded to have been simple and transverse, at a point about nine inches above the knee, at or a little above the junction of the lower and middle third of the femur. The facts of the diagnosis and treatment are related in the testimony of the plaintiff, his wife and his father, which may be introduced by stating that the method of treatment adopted was what is generally known to the medical profession as "Buck's Extension." The manner in which it was employed is first stated in plaintiff's testimony. He testified that his injury was the result of an accident while riding a motor-cycle on the race-track at Cheyenne, on the evening of June 10, 1921. That he was taken to his father's home in Cheyenne, the doctor called, and then removed to St. John's Hospital in that city. That he was unconscious until, at the hospital, he was conscious for a minute or so and saw his father and the defendant standing at the foot of the bed. That he asked the doctor if he had "got her all fixed up," to which the doctor replied, "Yes, sir, you are all right now. " That upon fully recovering consciousness, he found:

"They had taken some boards and put underneath the bed, between the springs and the bed railing, so that there would not be any spring to the bed, and the bed was elevated--it was a little higher at the foot, I judge about three and one-half inches or four--and there was a weight tied on my right leg, and a sandbag up this side, from about here up to here (indicating) on the outside, and up about here on the inside (indicating). There was a strip of adhesive tape starting just above the knee, a couple of inches above the knee, and came down around my foot, and came up this side, just above the knee, and then it was bandaged below the knee, around this way (illustrating) to keep that tape from slipping, and he fastened the weight in the bottom of that tape that the rope was tied to that held the weight." That there were no splints along the side of the leg, nothing but the sandbags; that he heard them say that the weight attached to his leg was either 27 or 37 pounds; that his leg hurt all the time where the tape was, and it hurt underneath his leg and at his ankle. That the skin was not broken anywhere, but there was a blue mark about three inches above the knee on the outside. That he asked the doctor where the bone was broken, and he says "right under there (indicating) about three inches above the knee." "That is where this blue mark was."

He further testified: Q. What treatment did he administer on these daily visits? Did he make any examination at all when he would come in? A. Sometimes he would throw the covers back, and look at it (the leg) and feel here (indicating) like that, and then walk away. Q. How many times did he measure your leg, during the five weeks that you were there that you know? A. Once, that I know of. About eight days after I was in the hospital. Q. Tell the jury whether or not you ever felt a lump down on either side of your leg while in the hospital. A. Yes sir; eight days after I got hurt. Q. Where was that lump? A. Right about there (indicating); * * * about nine inches above the knee. * * * It felt like a bone * * * Just the same as if you bent your elbow and would feel that end of your elbow. * * * That Dr. Conway, his wife and father, and a couple of nurses saw and felt of the lump, and that the doctor felt there two or three times, shook his head and said "That feels like the callus on the bone." He measured the leg then, but did not tell him what the measurement was. About at the end of four weeks, the leg began to swell; that...