47 Colo. 282 | Colo. | 1910
delivered the opinion of the court:
Defendant in error commenced suit against plaintiff in error to recover damages for the alleged malpractice of the latter. In her complaint, plaintiff alleged that while walking on Sixteenth street, in the city of Denver, she slipped and fell on the pavement and injured her right hip.] that she employed the
The first question we shall consider is the sufficiency of the evidence to establish the negligence of the defendant as charged. The testimony is not voluminous, and so far as material to that question, is substantially as follows:
Plaintiff fell upon the sidewalk in the evening. She was at once removed to her room, and requested that the defendant be' called. He arrived within a few minutes; found that she was' suffering severe pain, and told her he was afraid she had suffered a fracture, and’ advised her that he would not make an examination until morning. The next morning he called, and examined her hip by feeling it with his hands, and concluded that the injury was a severe bruise and not a fracture. It further appears from the testimony-that he continued to treat her for the
A physician and surgeon called on behalf of the plaintiff testified that about five years after her injury he made an examination of her right limb, and found from such examination, aided by an X-ray photograph of her right hip, that she had sustained a fracture of the neck of the femur of the right limb. He also stated that in ease of a fracture of the neck of the femur it is often difficult to ascértain whether there is a fracture or not. He further stated that a severe bruise in the vicinity of the neck of the femur would produce practically the same pain, as a fracture. He also detailed the method usually adopted by surgeons for the purpose of ascertaining whether or not, when the hip is injured, a fracture exists. It appears from the testimony that the defendant did
■ • “ Q. Doctor, if a patient with an- injured hip lie on the back and her foot turns over to one side, what is the indication? A. Might be a fracture; might be a dislocation.
‘ ‘ Q. It' would be one or the other ? A. One or the other.
“ Q. The indication would be that it. was either a dislocation or fracture? A. Yes; that is, if there was inability to put it back again-in place.”
Plaintiff was recalled as a witness, and asked:
“Q. You may state to the jury what position your foot — the right foot — assumed after this injury, when you were lying there on your back? A. It laid over on the side.
“Q. Did Dr. Bonnet ever see it lying over on the side?, A. Yes, sir. He said he did not like it, although he could not understand why it did that.
“Q. Did he straighten it? A. He straightened it up and it fell back again.
“Q. Did you have any control over it to keep it up from falling back? A. None whatever.”
The defendant did not testify, and there was no testimony offered on his behalf controverting the facts and testimony as above narrated. From these facts and evidence, it is clear that' the injury to plaintiff’s hip was a fracture instead of 'a mere bruise, and the question to determine is whether or not it appears that defendant was guilty of negligence in diagnosing and treating her injury.
In the absence of a special contract, the law implies that a surgeon employed to treat an injury contracts with his patient, first, that he possesses that reasonable degree of learning and skill which is ordi
He is not responsible for want of success unless it results from a failure to exercise ordinary care or from want of ordinary skill.—Burnhaon v. Jackson, supra; Leighton v. Sargent, supra; Williams v. Poppleton, 3 Ore. 139.
And if he possesses ordinary skill and exercises ordinary care in applying it, he is not responsible for a mistake of judgment.—Fisher v. Niccolls, 2 Ill. App. 484; Heath v. Glisan, 3 Ore. 64; Langford v. Jones, 18 Ore. 307.
Applying these well-settled principles of law governing the liability of surgeons, it is at once apparent from the facts that the failure of the defendant to properly diagnose and treat the injury to plaintiff’s hip was inexcusable. That the bone was fractured cannot be doubted. The evidence of such fracture was plain from the fact that plaintiff’s foot lay over on one side, to which the attention of defendant was directed, so that one of two conclusions is inevitable: Either defendant did not possess that degree of learning and skill which the law requires of surgeons; or, if he did, he failed to exercise ordinary care in applying it.
It is urged that the court erred in admitting the evidence of the doctor above referred to, for the reason that his examination of the plaintiff was made
It is next claimed that the court erred in admitting testimony of the shortness of the injured limb. A surgeon is only required to restore an injured limb to that degree of perfection which would result from the exercise of that degree of skill in treating the injury which is ordinarily possessed by members of the profession. As previously stated, a surgeon is not responsible for want of success unless it is the. result of a failure to exercise ordinary care. Neither is he responsible for a mistake of judgment if he possesses ordinary skill and uses reasonable care in
It is also urged that the plaintiff was guilty of contributory negligence which should preclude a recovery. We -fail to find that the record discloses any act on the part of the plaintiff which contributed to her injury, or retarded the healing of her injured limb.
Error is also assigned upon the refusal of the court to give instructions' requested. Those requested were substantially embraced in the instructions given by the court. It is not error to refuse instructions embraced in those given.
The judgment of the district court is affirmed.
Affirmed.