Hanson ex rel. Hanson v. Thelan

Bronson, J. This is an action for damages sustained through malpractice. The plaintiff is a minor who, at the time of his injury, in the month of March, 1916, was sixteen years old. In the trial court a verdict’was returned in favor of the plaintiff for $300. From the judgment entered thereupon, and from the order of the trial court denying a motion for judgment non obstante, or for a new trial, the defendant has appealed. The substantial facts are as follows: The infant plaintiff on the 31st day of March, 1916, sustained a fracture to his right leg between the knee and the ankle. Both bones were [620] fractured. The boy was placed in a hospital under the care and in charge of the defendant, a physician and surgeon. There is some testimony in the record to the following effect: The doctor for about three days applied ice packs to reduce the swelling; then he set the bones and inclosed the leg and foot in a, plaster cast. The boy complained of suffering pain, and in about a week the cast was cut open and the leg then tightly bound and bandaged with cloths. Then, after three weeks, these bandages were taken off and then a board was placed under the leg and foot, they were wrapped in bandages, and a weight and pulley attached, weighing some 10 pounds. The boy remained in this condition for some two weeks, and then these appliances were removed and a shoe laced •on tightly, next to the bare foot, with some cotton batting inserted, and /a weight and pulley attached to the same. Prior to attaching these last ¡appliances there were sores or bruises on his foot. Some, two weeks later the shoe was removed, after the boy had complained of suffering, and the foot was then black and blue. The physician, some three days thereafter, put some salve on these sores. Dr. Bamstad of Bismarck came •to Wilton, examined the boy, and stated that erysipelas might be expected. The boy became quite ill. They removed him to the Bismarck Hospital at Bismarck, where erysipelas developed, and where he became very ill for many days. There he remained for seven weeks. The main question in the record is whether the erysipelas developed from the method of treatment accorded by the doctor, and whether the doctor was derelict in his duty in that regard. The appellant in his specifications contends that the evidence is insufficient to warrant the verdict for the reason that there is no direct evidence in the record that the condition of erysipelas was brought upon the plaintiff by any act or omission of the defendant; also he complains of rulings of the trial court upon the admission of evidence, and that, furthermore, the plaintiff by his own conduct in going out when the fracture was mending, contrary to the ■instructions of the physician, and otherwise disobeying instructions given by the physician, precludes any recovery. Erysipelas is a type of infection. 3 Whart. & S. Med. Jur. § 227. The gist of the negligent acts, if any, of the physician particularly refers to the manner in which he applied the shoe to plaintiff’s foot, and the attention that he gave thereto. The law is now well settled that the '■physician owes to his patient the duty to exercise reasonable and ordinary care, diligence, and skill such as are ordinarily possessed by physi [621] eians practising in similar localities in the same general line of practice. Note in 37 L.R.A. 830; see 12 L.R.A.(N.S.) 752; 93 Am. St. Rep. 657; 48 Am. Dec. 481; and 30 Cyc. 1575. It is equally well settled that the patient must not have contributed to his injury in any degree; that he must conform to all reasonable directions of his physician, otherwise he cannot recover. 5 Thomp. Neg. § 6795, p. 1090. See notes in 37 L.R.A. 830; 17 L.R.A.(N.S.) 1242; and 30 Cyc. 1580. We have examined the record in this regard, and are satisfied upon the whole that this question of plaintiff’s contributory conduct or failure to obey the instructions of the physician, disputed somewhat in the evidence, was fairly a question for the jury. With reference to the contention of the appellant that there is no direct or positive evidence to show that the resulting erysipelas was proximately caused by the acts of the defendant, we are satisfied from a consideration of the testimony of the laymen in connection with the expert testimony of two doctors for the plaintiff, that the trial court did not err in submitting the question of defendant’s negligence to the jury. There is some evidence in the record to the effect that the manner in which this shoe was bound to the foot of the hoy was not properly done; that, furthermore, it was not examined sufficiently regular or often by the doctor. The expert evidence in this regard is not strong, but nevertheless, upon the whole record, we are not disposed to determine, as a matter of law, that the treatment accorded was not negligent. We have also examined the rulings of the trial court with reference to the admission of evidence concerning which specifications of error are made, and we find no prejudicial error in the rulings of the trial court. The appellant asserts that defendant’s good reputation as a physician is at stake, and that this court should not condemn the defendant as an incompetent or careless practitioner upon the record herein; it does not follow that this judgment so rendered, or its affirmance, does so condemn the defendant. Surely physicians and surgeons are liable to make mistakes and to err in the performance of their duty to the patient occasionally, just the same as any other profession or any other trade. Dor a physician or a surgeon to assert that he is infallible and never makes a mistake is to place his ability and learning above the usual and ordinary run of human experience. Thejudgment is affirmed with costs to the respondent. Grace, J". I concur in the result.