239 F. 252 | 6th Cir. | 1917
The defendant in error (who was plaintiff below and will be so styled here) suffered a fracture of the femur, about’ four inches above the knee, and was taken to the Marine Hospital at Memphis, Tenn., where the care and treatment of the fracture were undertaken by plaintiff in error, whom we shall call defendant. Plaintiff brought suit for damages occasioned by defendant’s alleged negligent treatment of the fracture, whereby the injured leg was materially shortened and deformed, necessitating further operation, and entailing expense, suffering, and loss of time. There was a trial by jury, resulting in verdict and judgment for plaintiff. Defendant’s motion for a new trial was overruled. But three of the errors assigned are relied upon.
By the undisputed testimony the fracture was simple, as distinguished from compound; it was not oblique, but was transverse, with “a slight ripping off on the outside of the upper fragment.” The fracture was never reduced, the two ends of the bone being allowedj to lap by in the neighborhood of two inches and to unite in that position. At the end of seven weeks plaintiff left the hospital, with the leg materially shortened and the foot turned inward.
The burden was, of course, upon plaintiff of showing defendant’s want of reasonable care, skill, and diligence in his treatment of the case, and that the injuries complained of proximately resulted from a failure to exercise such care, skill, and diligence; and no presumption of such failure arises from the fact that the treatment was not successful. But the evidence given tended to sustain the burden resting on plaintiff.
In the treatment of the fracture Buck’s extension method was used. While it was conceded that Buck’s treatment was recognized and accepted by the profession as suitable and proper in the treatment of fractures of this nature, and while there was competent testimony that by reason of the admittedly swollen and bruised condition of the muscles it was not feasible to reduce the fracture at once, that there was no recognized treatment for reducing the swelling, that the fact that the fracture was not reduced could not be determined without an X-ray picture, that the apparatus at the hospital was out of order, that defendant’s treatment was proper under the circumstances existing, and that in the normal case there is some shortening of the leg, there was, on the other hand, testimony on the part of competent witnesses that a fracture of this nature should be reduced immediately if possible (otherwise, as soon as possible), that such swelling as would interfere with reducing the fracture usually ends in about two weeks, that local treatment (by ice packs or otherwise) is recognized and feasible for the purpose of reducing swelling, that in fact the swelling in this case did leave in about two weeks, that the object of the Buck’s extension treatment is to reduce the fracture, that the weights used by. defendant were insufficient, that bone fragments should not be allowed to lap by, that the foot should not normally have been turned inwards, that the extent of shortening shown here was abnormal, that an X-ray would have shown that the fracture was not reduced, and that when plaintiff was discharged an external examination would show that the ends of the fractured bone had lapped by. Defendant admitted that he could have had, within a week’s time, authority to get an X-ray picture by asking for it.
2. It appeared that after plaintiff had left the Marine Hospital he underwent further operations to repair the results of defendant’s alleged negligent treatment. These new operations included an incision to the bone at the place of fracture, a breaking of the false joint, the reduction of the fracture, the putting on of metal plates to hold the bone in position until it should knit, another surgical operation to remove the plates, and still another to relieve from the pus formation incident to infection. Upon the trial plaintiff was asked by defendant’s counsel if he did not “institute suit to recover from the company, for whom he was working, for the pain and suffering.” The question was excluded upon the assigned ground that plaintiff could recover from defendant for “such pain and suffering as the doctor’s negligence or inattention caused.” Defendant’s counsel then stated that he wished to “offer the proof that such suit was instituted, and a recovery had for the various operations, and a settlement was made.”
The judgment of the District Court is affirmed, with costs.
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