83 Wash. 508 | Wash. | 1915
Appellant is a surgeon, engaged in the practice of his profession. He is sued for malpractice. On January 17, 1910, respondent was injured in a coasting accident. Both bones of one of her lower limbs were fractured just above the ankle. The fracture is denominated by the medical witnesses a compound comminuted fracture. The flesh was torn and the bone protruded. There was also a simple fracture or a nearly square break of the femur a short distance above the kneejoint. Appellant was, at the time of the accident, surgeon at the emergency hospital, and gave respondent first aid and thereafter treated her for four or five weeks, when she was passed to the care of the county physician, who cared for her until Dr. Phy, a surgeon of her own choosing, took charge of the case.
So far as we can see, the fracture of the two bones in the lower limb was treated surgically, and but for an infection that appeared two or three days after the accident and for which appellant is not shown to be responsible, • respondent would have recovered of that fracture in from six to twelve weeks. The malpractice is alleged to lie in the fact that appellant did not make timely discovery of the fracture of the femur and did not, after discovery, render proper and skilled service. On February 2 or 3, X-ray photographs were taken.
Appellant’s version is, that the lower fracture was the important thing; that the knee became immediately swollen, and that a synovitis of the knee joint developed; that because of the swelling and synovitis, he could not set the bone at the time by ordinary methods, nor could he attach a weight to the limb to hold the fractured bones in place because of the fracture and lacerations below the knee. Respondent’s present condition is: the upper fracture has made a good recovery; the lower fracture, after an operation in which the bones were cut and reunited, has healed; the limb is shorter than the other from one and one-half to two and one-half inches as variously estimated by the witnesses; she walks with, and bears most of her weight on, a cane which she carries at her hip; she can walk without help, though she can walk better with assistance; she was bedridden for many
It is urged that the court erred in allowing evidence to be received tending to show that appellant was negligent in that he did not have X-ray pictures taken at the time or shortly after the case came under his notice; that the court did not properly instruct upon this feature of the case; and that the court erred in submitting the issues to the jury, in that he failed to state appellant’s contention that he knew of the fractured femur but could not heal it because of the synovitis of the kneejoint and the condition of the lower fracture. As for the first contention, we think it would have been better if the court had sustained appellant’s objections and had given his requested instructions, but as there is independent evidence of negligence and the testimony would in all human probability go only to the quantum of damages, we have decided, in view of the conclusion we have reached, to treat the act and refusal of the court as not sufficiently prejudicial to justify a third trial of the case. As for the last contention, the case went to the jury after a long trial. Every feature of respondent’s case as well as the defense was prominently and skillfully brought out. We cannot believe the jury were unmindful of, or failed to consider, appellant’s case. In this respect we find no error.
This brings us to the real contention. Are the damages awarded excessive? It is fundamental that a doctor who is called to treat an injured person cannot be held to answer
A motion for a new trial was taken under advisement by
We have not overlooked the contention that, when the trial judge has refused to reduce the verdict we will not, and the cases cited to sustain it. In the cases relied on, the party charged was primarily responsible, the testimony conflicting, and we could not say, nor would we say if this case were against one responsible for the original hurt, that the verdict is too large; but bearing as she must her own share of the attendant and consequent suffering, we think respondent, who can claim no more than compensation, should remit $2,000 of her recovery or take a new trial. It is our judgment that the jury was moved by the passion of sympathy for respondent and possibly by the passion of prejudice against appellant.
If the respondent will, within thirty days after the remittitur in this case goes down, remit $2,000 of her judgment and consent to the entry of a judgment for $5,385, the judgment 'will be afBrmed. Otherwise a new trial will be awarded.
Crow, C. J., Parker, Gose, and Morris, JJ., concur.