89 Wash. 661 | Wash. | 1916
Action to recover damages for alleged malpractice of a physician in the treatment of an injured shoulder. On a former appeal, Department Two of this court reversed a judgment for plaintiff and remanded the case for a new trial. Hoffman v. Watkins, 78 Wash. 118, 138 Pac. 664.
At both trials it appeared that, on Sunday night, February 3, 1912, plaintiff, a man fifty-four years old, was assaulted on the streets of Aberdeen, knocked down, and stunned and robbed, sustaining a cut over the eye and a severe injury to the right shoulder. At both trials the gravamen of the charge of negligence was the failure of defendant to diagnose the injury to the shoulder as a dislocation. On the next morning after the injury, one Dr. Riley called, treated the cut over the eye, and diagnosed the injury to the shoulder as a sprain. On that same or the next evening, defendant called and also diagnosed the injury as a sprain. Two or three days afterwards, plaintiff visited defendant’s office, where defendant claims he again examined the shoulder and found it merely sprained. Each of these physicians testified that he examined the shoulder for a dislocation by inserting the fingers in the arm pit, and also by placing the right hand of the patient on the opposite shoulder with the elbow pressed against the side or chest, and that, by these tests, it was de
The testimony on behalf of plaintiff tended to show that neither Dr. Riley nor the defendant applied this or any other test or attempted to lift, move or manipulate the arm in any way. Plaintiff followed defendant’s directions for about four weeks, during a part of which time and thereafter for three weeks more, he took electrical treatment from Dr. Riley. He claims that the shoulder steadily grew worse and finally, on March 25th, he went to Dr. Randolph of the Aberdeen General Hospital, who with his assistant, Dr. Austin, examined the shoulder, applied the above mentioned tests, measured the two shoulders, found that the injured shoulder was lower than the other, and that the plaintiff was suffering from a subglenoid or downward dislocation of the shoulder. The patient was placed under an anaesthetic and the shoulder was subjected to severe manipulation in an effort to reduce the dislocation, but without success. Owing to the long standing of this dislocation, the head of the humerus had become attached to the bone below the socket by a fibrous growth, and certain muscles had become so shortened as to prevent a reduction without an incisive operation. This was deemed immediately inadvisable because of soreness and swelling induced by the manipulations. Moreover, the patient would not at first consent to it. Finally, on April 25th, the operation was performed by Drs. Randolph and Austin. They made an incision at the top of the shoulder, split the muscles longitudinally, severed certain minor muscles, cut the fibrous growth and set the head of the humerus in the
At the first trial, an effort was made to show that the dislocation was caused by the manipulations of Drs. Randolph and Austin on March 25th. That position was entirely abandoned on the second trial. In its stead an affidavit of one Boetcher, a son-in-law of plaintiff, which was admitted as evidence to avoid a continuance, was read. It stated, in substance, that on a night early in March, 1912, plaintiff’s wife went out for the evening leaving Boetcher at the house with the children; that he heard a noise as of some one falling; that he went to the door, found the plaintiff lying on the ground drunk to unconsciousness; that he brought plaintiff in, placed him in a chair and went back to bed; that shortly afterwards plaintiff’s wife came home and he heard her scolding while putting plaintiff to bed; that the next morning plaintiff remembered nothing of the occurrence, but complained that he had hurt his sore shoulder. Plaintiff’s wife positively denied that she at any time ever went away in the evening leaving Boetcher in the house and denied the above incident m toto. Both plaintiff and his wife testified positively that he had never received any injury to the shoulder between the time of the assault and his first visit to Dr. Randolph. The reception of Boetcher’s affidavit and Dr. Bowlby’s testimony, and the elimination of the testimony touching defendant’s contract with the lumber company, referred to in the first opinion, and the testimony tending to show that the shoulder might have been dislocated by the manipulations of Drs. Randolph and Austin on March 25th, present the only substantial differences in the testimony adduced at the second trial from that adduced at the first. The trial resulted in a verdict and judgment for the plaintiff for $4,000. Defendant appeals.
Much stress is laid on the fact that the respondent was not called to deny Boetcher’s affidavit that he had said, prior to March 1st, that the shoulder was improving, nor any of the statements contained in that affidavit. Counsel again overlooks the fact that respondent had already testified that, throughout the whole period, the shoulder had become steadily
Appellant requested an instruction to the effect that, in determining whether any act or omission on his part in diagnosing and treating the injury was a lack of due care and skill, the jury must be governed solely by the testimony- of experts skilled in the practice and science of medicine and surgery. The request was properly refused. It was an admitted fact in the case, about which there was no dispute and on which the expert testimony on both sides coincided, that the application of the tests which the appellant claims he made would infallibly have demonstrated the existence or absence of a dislocation. It is also an undisputed fact, to which every expert witness, including the appellant, testified, that the failure to apply these tests would be a failure to exercise that reasonable and ordinary care and skill used by physicians and surgeons engaged in the same
The court instructed the jury on this subject as follows;
“You are instructed that there is no difference of opinion among the expert physicians and surgeons who have testified in this case as to the manner of examination and application of tests in a case of such an injury as the plaintiff claims to have received. The physicians who have testified have all agreed to the nature, extent, and method of such preliminary examination. The defendant claims to have used these tests and to have made such examination; and whether he did or did not do so, is the question of fact to be determined by you from the testimony in the cause and. under the same rules as the other testimony is to be considered and as herein set out for your guidance.”
Appellant urges that the giving of this instruction was grave error. But what we have already said touching the requested instruction makes it plain that the trial court took the proper view of the matter and submitted to the jury the one question about which there was any dispute. We find no error in this instruction.
Finally, it is urged that the verdict is excessive. In this view we concur. The evidence indicates that the shoulder has entirely recovered and is now giving the respondent no pain. While it is true that some of the effects of the operation are permanent in their nature, the evidence shows that the respondent’s earning capacity is not materially diminished. It is true that he cannot perform those tasks which necessitate lifting above the level of his shoulder, and it is true also that he has suffered much pain, inconvenience and considerable expense. The joint, however, so far as the evi
Morris, C. J., Mount, Fullerton, and Chadwick, JJ., concur.