126 P. 468 | Utah | 1912
Plaintiff, a boy twelve years of age, brought this action by his guardian ad litem to recover damages from the defendant, a practicing physician, because of defendant’s alleged failure to use ordinary care, skill, and diligence in treating' an injury do plaintiff’s leg, consisting of a fracture of the tibia bone. The allegations of the complaint charging negligence and lack of skill, so far as material here, axe as follows:
*449 “Defendant was called to attend said injury, and carelessly and negligently failed to discover that the bone in plaintiff’s leg was broken, and carelessly and negligently reported to this plaintiff 'and to his mother, Minnie Goss, that the bone was not broken, but that the muscles of the leg were simply bruised, and carelessly and negligently failed1 and neglected to set said broken bone, or to give or prescribe any proper treatment for a broken bone; that about five weeks after the said injury . . . plaintiff learned for the first time that the bone of his leg was broken, that the said bone had partially knit without being properly joined, and that the same will have to be rebroken and properly set; that in the treatment of said fracture the said defendant failed to use ordinary care and skill, and that by the exercise of ordinary care and skill the fact that the said bone was broken would have been readily discovered by the said defendant.”
; The defendant, after denying the allegations of negligence upon which plaintiff relies for a recovery, as a separate defense alleged affirmatively:
“That on the 10th day of November, 1911, defendant was employed and paid by one Clarence Purdue to make an examination of plaintiff’s leg; that on said 10th day of November, 1911, for the first and only time defendant did make an examination of said plaintiff’s leg; that defendant found plaintiff’-s leg in such a swollen condition thait it was impossible by the use of ordinary skill and diligence to discover the nature of plaintiff’s injury, and defendant then and there so informed plaintiff and plaintiff’s mother and said Purdue, and thereupon defendant’s services in respect to plaintiff ceased; that at no time has defendant been in the employ of plaintiff.”
The evidence introduced by plaintiff showed that at about 2:30 o’clock on the afternoon of November 9, 1911, he was run over by an automobile and the tibia bone of the right leg broken. The driver of the automobile took plaintiff home, and told his mother that he thought plaintiff’s leg was broken, and offered to procure a physician. The mother replied that,
Plaintiff’s mother was called as a witness and testified in part as follows:
“That evening (referring to the evening of the accident) my husband called up Mr. Purdue, who said he would send his physician. The next morning he brought Dr. Spaulding down, and I stepped up, and he said, ‘I am Mr. Purdue, and' this is my physician, D>r. Spaulding.’ Dr. Spaulding examined the leg, and1 felt it, and then I asked him if it was broken. He said, ‘No.’ I said, ‘Are you sure?’ He said, ‘No; it is not broken.’ I said, ‘No bone trouble there at all.?’ He said, ‘No.’ I said, ‘I can feel the bones move.’ He said, ‘No; you can’t feel the bones move; if you could feel them, I could.’ . . . Then he examined the leg again, and still insisted it was not broken. . . . He gave me a prescription for liniment, and told me to get antiphlogistine and! put that on to get the soreness out. He said the leg would be all right in a few days. I got the prescription filled, and used the liniment as directed. He came again December 11th. ... I said, ‘The boy’s leg is broken.’ He said, ‘Oh! no; it isn’t broken; the child’s leg is all right.’ ”
On cross-examination she said:
“After the doctor siaid it was not broken, I thought he was a doctor, and knew what he was talking about, and I thought it was not broken. ... I thought Dr. Spaulding had the case. I thought Mr. Purdue put him on the case, and, of course, he was the physician on the case, and I didn’t consider it necessary for me to say anything about it.”
The testimony of the plaintiff regarding what was said and done by the defendant on each occasion when he called to see plaintiff was substantially the same as that given by his (plaintiff’s) mother.
Dr. Peer, who is a practicing physician and surgeon, was called as a witness, and testified that he performed an opera
“I think a physician, with due care and consideration and attention that he should' give to a case of that kind, co-uld easily determine the condition that was present in that case. I can hardly understand, with «ai boy of his age and physique, how it could be overlooked, if a man had given it proper examination. Notwithstanding the swelling, I think the injury should have been discovered.” On cross-examination he said: “If a man would use due diligence in his examination, he should have discovered it.”
"When plaintiff’s evidence in chief was in, and he had' rested his ease, the defendant moved for a nonsuit, on the ground that plaintiff had “failed to show a case of negligence — to show facts sufficient to go to the jury.” The motion was granted. Erom the judgment rendered on the nonsuit, plaintiff appeals.
“The fact that a physician or surgeon, renders his services gratuitously does not absolve him from the duty to use reasonable and ordinary care, skill, and diligence.”
In 22 A. & E. Ency. L. 801, the rule is stated as follows:
*453 “The same degree of care and skill, and the same degree of duty, are owed by the practitioner to the patient whom he is treating gratuitously as to the one from whom he receives compensation.”
Tbe judgment is reversed, with directions to tbe trial court to grant a new trial. Costs of this appeal to be taxed against respondent.,