193 Ind. 376 | Ind. | 1923
Appellee recovered a judgment for $2,000 in an action for alleged malpractice. The complaint, so far as it is pertinent to a consideration of the
Something is said in the complaint about incisions in the flesh made by defendants for drainage of the pus being allowed to close, and about a rubber drainage tube used in an incision being inserted in such a careless, unskilled and' negligent manner that it did not afford proper drainage, and being negligently left in the wound without cleansing, and when it was stopped up. But it is not alleged that these acts and omissions made plaintiff’s arm any worse, or even that they caused him pain or inconvenience, or otherwise injured him.
The defendants answered by a denial. The cause was submitted to a jury, to whom the court gave 35 instructions, refusing to give certain others asked by the defendants. A motion for a new trial for the reasons that (a) the verdict is not sustained by sufficient evidence, and that (b) the court erred in giving each of certain instructions, and (c) in refusing to give certain others, and (d) that the damages were excessive, was overruled, and proper exceptions were reserved, which ruling is assigned as error.
Obviously, the theory of the complaint was that of recovering damages for negligence in making a wrong diagnosis and giving treatment accordingly, treating with vaccine for a supposed disease of the flesh and blood, instead of performing a surgical operation to remove infected bone. And a perusal of the evidence and instructions tends to convince one that the case was tried throughout on that theory. But the evidence fell short of making out a cause of action for negligence in making a diagnosis. The' evidence proved, without contradiction; that both of the defendants
Assuming that plaintiff was afflicted with osteomyelitis from the beginning .and that defendants were mistaken in their diagnosis, such facts alone would not give him a right to recover damages. A physician or surgeon is not an insurer, and does not bind himself to make a correct diagnosis and effect a cure or to respond in damages. He is only bound to possess reasonable skill and to use ordinary care; and if he makes a mistake in his conclusion as to whether a sore place on the skin has its origin in the flesh or in the bone under the flesh, he is excused from liability if, possessing reasonable skill, he has used ordinary care in making an examination, and has honestly reached the mistaken conclusion by the use of such shill and such care. In the absence of evidence of any lack of skill, or of any lack of care in making the examination and forming his judgment, mere proof that the diagnosis was wrong will not support a verdict for damages. Not having warranted a cure, if he has reasonable skill and learning and uses. ordinary care, he is not liable for the consequences of an honest mistake
But, even if we should have overlooked evidence bringing the case within the rules of law on which plaintiff’s right of recovery depends, the cause must still be reserved for error in giving instructions. Plaintiff testified that when he suggested an intention of going to “Dr. Bowers”, about six' months after defendants began treating his arm, Doctor Funk said: “Well, I suppose he will begin to knock on me”, and, with a profane oath, called Dr. Bowers a vile name. And plaintiff’s mother testified that after he had been put under the care of defendants at the hospital, she told “the doctors” to “go to the bone”, but “the doctor” said he would not, and said of plaintiff that “He has been cut up by Dr. Bowers too much now.” There was also other evidence which tended to prove that the feeling between Dr. Funk and Dr. Bowers had not been friendly. The court gave an instruction to
Ño issue of a wilful refusal to give proper treatment to plaintiff’s injuries because of dislike for Dr. Bowers had been tendered by the complaint, only negligence being charged, and the instruction as to liability of the defendants if they “should allow any ill feeling toward another physician or surgeon * * * to influence their treatment of such patient” was outside of the issues, which related only to alleged negligence in carelessly making a wrong diagnosis, and giving treatment accordingly. Besides, this instruction does not even suggest the limitation that the “treatment”, as influenced by ill feeling toward another physician or surgeon should have been improper, or that the “judgment” as “biased” by such ill feeling should have been incorrect, except as may be implied from the words “and such action results in injury to such patient.” But under a complaint which only charged that plaintiff suffered pain and sustained a loss of health and weight while undergoing treatment by defendants, and a stiffened elbow which crippled him for life as a consequence, and only charged that these injuries were caused by negligence in making a wrong diagnosis and in giving treatment pursuant to such diagnosis, plaintiff could only recover for the injuries so alleged, sustained by reason of the facts as charged.
In addition to the evidence above referred to, indicating enmity between defendants and a rival surgeon, plaintiff testified that when he complained of pain in the bone, Dr. Edwards (a defendant) made fun of him and said it was imagination; that the physician at the hospital who took the x-ray picture did not let plaintiff see it, and when asked to show the plates to him, a few days before the trial, said he did not have time; that when plaintiff talked of going to another surgeon, Dr. Funk (a defendant)
The judgment is reversed with directions to sustain the motion of defendants for a new trial.