DeSham v. Taugher

Eschweiler, J. Plaintiff’s contention that there should have been given to the jury the question of whether defendant failed in his duty in making his diagnosis when plaintiff came to him in October, 1920, cannot be upheld. The history above recited of this evidently unusual but extremely unfortunate case shows that, while the defendant did not discover the original source of the infection then present, neither could nor did the many other physicians of admitted skill and experience in that vicinity during their observations and treatments of many months. These others had the same opportunities for discovery that were possible to defendant, and plainly he could not be said to have shown a failure to use the reasonable care and skill which the law requires. Jaeger v. Stratton, 170 Wis. 579, 581, 176 N. W. 61. Plaintiff further insists, however, and much more strenu [450] ously, that there was a jury question presented as to whether or not there had- been a negligent cracking or breaking of the superior maxillary bone by defendant when operating on the plaintiff. If such, had been submitted and determined in plaintiff’s favor it could have been supported only by that part of Dr. Dier’s testimony to the effect that if an instrument such as the defendant testified he did use had been used in a manner unusual and unnecessary for such an operation, and force had been applied to it, using a portion of the bone as a fulcrum, there could have been produced a break or crack in the superior maxillary. Such a finding, however, if it had been made, could not have stood. It would have been purely speculative, under the evidence, as to whether any such force had been so negligently applied. By Dr. Dier’s further testimony it became pure conjecture whether tjie bone fragments which he removed had become detached by .pressure from some instrument or by pus action. In such a situation the plaintiff has not supplied the quantum of proof the law requires in order to establish liability of a defendant in this class of cases. Matuschka v. Murphy, 173 Wis. 484, 180 N. W. 821. Furthermore, it would be inconsistent with the undisputed fact that there was infection already present before defendant performed anything in the nature of an operation on plaintiff, and which infection, under the undisputed evidence, might have accounted for all of the unfortunate sequence. By the Court. — Judgment affirmed.