128 Wash. 343 | Wash. | 1924
This is an appeal from a verdict of the jury in an action against a physician and surgeon for malpractice. The respondent, a woman about thirty-six years of age, was thrown from a carriage in the mountains near Turn Turn on August 8, 1921, and received a fracture of the left femur, near the hip. A doctor was called and advised that she be taken to a hospital operated by the appellant. There she was placed in bed and later an X-ray was taken and the following day the fluoroscope was used and the limb placed in a Thomas splint. The appellant testified that his examination disclosed a comminuted im
The case has been presented and argued solely upon the theory that the only question in it is that of negligence in the treatment of the fracture, and nowhere in the trial or in the briefs has there been any suggestion that the negligence was solely that of an improper diagnosis.
We also recognize that it is not a question of fact for the jury, but the court will determine that there is nothing upon which the jury may pass where reputable physicians and surgeons of equal skill and learning disagree in their opinion as to what the proper treatment should have been, and that the jury will not be allowed to accept one theory to the exclusion of the other. It is enough if the treatment actually employed had the approval of at least a. respectable minority of the medical profession and is recognized, by such as a proper method. Sawdey v. Spokane Falls & Northern R. Co.; Wells v. Ferry-Baker Lumber Co.; Wharton v. Warner; Lorenz v. Booth; and Dahl v. Wagner, supra.
“But we may assume to say, if men of skill and learning express contrary opinions upon admitted facts and such opinions differ, although not preponderating the one way or the other (as they do in this case), that the law will not impose a liability upon a professional man who acts within the reasonable limit of either opinion.
“Nor will a court hold a man guilty of malpractice when doctors disagree as to methods of treatment, although it be suggested that there is a more modern method than the one employed, or the surgeon employs a modern method to the exclusion of one theretofore adopted as a standard. ’ ’
But it is the appellant’s contention that, applying these rules to the facts here, the case should have been taken from the jury and judgment rendered for him. The difficulty in arriving at this conclusion arises, however, from the fact that there is a dispute here as to the nature of the fracture. The negligence upon which the respondent relies to sustain her recovery is that the appellant failed to use sufficiently often the X-rays and fluoroscope and that, had he resorted to these aids, he would have discovered the conditions which led to the ultimate unsatisfactory result. The respondent concedes that the failure to use these aids was not negligence, if the fracture was an impacted one, saying at the beginning of her brief:
“We at the outset freely admit that according to all medical authorities we can find or have found and according to the testimony in this case there is no negligence on the part of a surgeon for failure to X-ray an impacted fracture of the femur so long as the length of the limb remains the same, as an impaction is a fixed condition, and frequent views would be of. no value, and if this was an impacted fracture there is no negligence on the part of appellant for failure to take X-ray plates from time to time. However we do*347 insist that the great preponderance of the evidence in this case is to the effect that the fracture was not impacted, and in such event we insist that according to the undisputed testimony in the case frequent X-rays are not only advisable but good practice makes the failure to make such X-ray examinations negligence, particularly in cases wherein the progress is not satisfactory.”
The testimony of the appellant was that he was dealing with an impacted fracture, and the corroboration that this was the nature of the fracture was furnished by three other doctors who had no opportunity for a personal examination of the respondent at the time she was under treatment, but who testified from an examination of radiographs taken in the January following the accident and after the appellant had completed his treatment. Opposed to this testimony, was the testimony of the surgeon who was called at the time of the accident and who sent her to the appellant’s hospital. He testified that, on his examination by manipulation, he discovered the fracture, and at that time there was a very evident crepitus, which would positively negative the idea of the fracture being an impacted one; and that the appellant, in a conversation a few days after the accident, had said that the fracture was an oblique one. There was, also, the testimony of two doctors who were employed by the appellant at his hospital and called as witnessés in his behalf, who testified that the injury consisted of “a fractured femur with displacement,” and that, in the operation performed by the appellant in their presence, “the broken ends were nicely approximated and that respondent’s limbs were frequently measured,” and “there was never any shortening while the patient remained in the hospital.” Under this situation, it was impossible that there should be an impacted fracture,
With this dispute in the testimony, it was a question as to whether the fracture was an impacted or unim-pacted one. If it is to be believed that it was unim-pacted, then the expert testimony produced by the appellant to the effect that the use of the X-ray and fluoroscope is unnecessary in impacted fractures becomes inconsequential; for the testimony shows without contradiction that, if it was an unimpacted fracture, the X-ray or fluoroscope should.be made frequent use of for the purpose of determining that no shortage was taking place' and that the two ends of the bone were remaining in apposition. With this conflicting testimony as to the very nature of the fracture which was being treated, the court could not apply the rules to which we have referred and take the case from the jury. If the fracture was an unimpacted fracture, as testified to be by some of the witnesses, and the original reduction had been properly made as was-testified to and the permanent shortening and outward rotation of the foot resulted, then the bones must have slipped in some way from the position in which they were originally placed by the appellant and the X-ray and fluoroscope according to the testimony should have been used to check up on the work and to disclose the progress of the approximation.
There was another circumstance which was of weight, and the jury had a right to take into consideration, and that was that a second operation was found necessary to cure the situation resulting from the operation by the appellant. In Sawdey v. Spokane Falls & Northern Railway Co., supra, and Peterson v. Wells, supra, the necessity of this second operation was recognized as producing some evidence of negligence. In Cornwell v. Sleicher, 119 Wash. 573, 205 Pac. 1059,
For the reasons stated, we must hold that there was sufficient evidence to go to the jury, and there being no errors assigned other than the failure to grant a motion for a directed verdict or a new trial because of lack of evidence, the judgment is affirmed.