Emerson v. Lumbermen's Hospital Ass'n

BEAN, J. Several errors are assigned by plaintiff upon this appeal. The first for consideration is the disposition of the motion for a nonsuit. It appears from the testimony that Alexander Emerson was injured by the wheel of a logging train running over his leg and practically severing it from his body. The accident occurred about one hundred yards from a house where Mrs. H. E. Miles and her sister resided and about three quarters of a mile from Neverstill, between Sunnyside and Neverstill. Mrs. Miles was a witness for plaintiff and testified as to the circumstances of the accident. Soon after the logging train had passed her house she heard the boy cry, and she and her sister went to his assistance. He was attempting to jump from one railroad tie to another upon one foot with his hands in the air for balance, had proceeded about ten feet and then sat down on a pile of logs. The torn clothing left a trail of blood where he passed over the track. She and her sistér attempted to assist him to their house, and had arrived near it, when the so-called railroad jitney or motor-car came, and he was assisted by the men into the car and taken to Neverstill. When the two women got the boy near the house, Mrs. Miles got a quilt for him to lie on, and when the jitney came she let them take the quilt for that purpose. It appears that the boy was taken to the emergency hospital at Neverstill, and in a short time placed upon [478] the jitney car and taken to Kerry, where he died about three quarters of an hour after arrival. Dr. Sears looked after him, directed affairs at Neverstill, accompanied him to Kerry, and was with him working over him when he died. The main allegation in regard to malpractice is that there was a failure to treat or dress the boy’s wound so as to stop the flow of blood, although the same could have been done by the use of ordinary skill or attention. We have searched the testimony in vain to find anything as to what treatment was administered to the boy’s injured limb, or what the doctor failed or neglected to do. It does not appear from the testimony whether he tried to staunch the flow of blood by binding the limb with a string, rope, wire or a bandage, or what he did. Neither is there any evidence to show what he did not do, or that proper and skillful first aid was not provided for the patient. There is evidence in the case showing that when the quilt upon which the unfortunate boy was placed was returned to Mrs. Miles it was saturated with blood, and ruined. There was considerable blood upon it where the boy had laid, but there is nothing to indicate but what the blood so flowed from the wound on to the quilt before the doctor had any opportunity to treat the boy. Dr. Sears stated to the coroner that the boy died from nerve shock and from loss of blood. From the description given by Mrs. Miles of how the boy walked or jumped as best he could about one hundred yards, putting one arm on her shoulder and one on her sister’s shoulder, it is apparent that the poor boy bled considerably before there was any opportunity for treatment by anyone, and prior to his being taken to the emergency hos [479] pital. The women who assisted him were frail, and it took about twenty-five minutes to assist him to make the distance to a place opposite the house. He was afterwards taken on the jitney about three quarters of a mile to the emergency or first aid hospital. T. S. White, the coroner of the county, was a witness for plaintiff and testified that he took charge of the body soon after the boy’s death. He was not interrogated in any way in regard to what had been done to treat the limb or stop the flow of blood, and was not asked to describe the condition of the limb at that time, as to bandages or the like. It seems there were several other persons present at Neverstill and Kerry, who saw the boy after the accident; yet no attempt was made to learn from them whether or not aid was rendered the sufferer. Dr. B. L. Sears was called as a witness, and stated that he returned the quilt that he took off from the stretcher upon which the boy was carried, and returned it to Mrs. Miles. The doctor was not asked as to what he did to staunch the flow of blood from the wound, nor anything as to the manner in which he treated the boy, or failed to treat him. The averments of the complaint, as to negligence in the care of the boy, are not supported by the evidence. ' 1. The deposition of Dr. C. E. Cashett, a regularly licensed physician and surgeon, was read to the effect that, in the case of an injury such as a lower limb being run over by a logging car in such a manner as to crush the leg or foot and cause a hemorrhage, the flow of blood should and could be immediately stopped. Dr. Cashett did not see Alexander Emerson after the accident, and was in no way informed as to what treatment, if any, Dr. Sears administered to the patient. For aught that appears in the record [480] everything suggested by Dr. Cashett was done by Dr. Sears. The complaint does not specify negligence or unskillfulness on the part of either of the defendants in attempting to take young Emerson from Neverstill to the hospital at Astoria for care and treatment. Plaintiff argues that the taking of the boy away from Neverstill on a car shows improper treatment. In the absence of an allegation and proof it cannot be assumed, or held as a matter of law, that it was improper under the circumstances to take the injured young man on a stretcher from a sparsely settled logging community to a hospital. The first question that naturally suggests itself is: What treatment was furnished the patient after he was placed in the care of Dr. Sears, or did the physician fail to furnish proper treatment? Second, if treatment was accorded, was it proper or otherwise? It cannot be assumed that there was a total failure to render aid and staunch the flow of blood. 2. In a malpractice case the opinion of medical men may be received in evidence as to what would be the proper treatment, but in order for such expert witnesses to have a basis for their testimony they should be informed as to what treatment was given the patient, or what the physician in attendance had failed to do: Rodgers on Expert Testimony (2 ed.), §64; 22 C. J., p. 663, § 758; Lehman v. Knott, 100 Or. 59 (196 Pac. 476), opinion rendered March 29, 1921. 3. The death of Alexander Emerson, while under the care of Dr. Sears as a physician and surgeon, or of either of the defendants, is no evidence of want of care, or of unskillfulness or failure to administer proper treatment: Langford v. Jones, 18 Or. 307 (22 Pac. 1064); Hills v. Shaw, 69 Or. 460 (137 Pac. 229); Merriam v. Hamilton, 64 Or. 476 (130 Pac. 406). [481] Dr. Sears’ qualifications as a physician and surgeon, although challenged by the complaint, are not assailed by the testimony. As far as shown he is qualified and skillful. Alexander Emerson was seriously injured, and taken to the emergency hospital at Neverstill. He was attended by Dr. Sears, and as a result of the injury he died. When a physician or surgeon undertakes the treatment of a case he does not guarantee a cure, in the absence of a contract to that effect: 21 E. C. L., p. 391, § 36. The doctrine enunciated by the precedents is, that if a regularly licensed physician with reasonable diligence employs the skill of which he is possessed in treating a surgical case, he is not liable for an error of judgment, and the fact that an unfortunate result follows, is not in any way evidence of neglect: Hills v. Shaw, 69 Or. 460, 467 (137 Pac. 229), and cases there cited. 4. There being an entire lack of testimony as to whether or not Dr. Sears adopted and applied the proper method of treating Alexander Emerson after he was placed under his care, or to show what he failed to do, the motion for a nonsuit was properly granted. There is some controversy as to whether or not Dr. Sears was connected with or represented the defendant hospital in so caring for the boy. As we view the case, this and other questions raised become immaterial, and need not be considered. It follows that the judgment of the Circuit Court must be affirmed. It is so ordered. Affirmed. Burnett, C. J., and McBride and Harris, JJ.,, concur.