Marchand v. Bellin

158 Wis. 184 | Wis. | 1914

The following opinion was filed June 11, 1914:

Yikue, J.

A Pott’s fracture is a fracture of the lower ° part of the fibula accompanied with injury to the ankle joint so that the foot is dislocated outward. Webster, Hew Int. Diet. The evidence shows that plaintiff’s fracture was a very severe one in which the fibula was splintered and the ligaments of the ankle joint ruptured, that the foot was very much swelled and discolored and the skin partly abraded in places at the time of the first treatment. At to its condition at that time, January 23d, and from then till'about the 13th of February, there is-no evidence other than that of the defendant, and if his evidence as to the conditions existing and treatment given is true then he was guilty of no malpractice. But plaintiff’s counsel insists that since the evidence shows the conditions testified to by defendant do not usually obtain in ordinary Pott’s fractures for so long a time, the jury had a right to find that they did not in the instant case. Hence, since it was shown that in .cases of ordinary Pott’s fractures the danger of gangrene was usually passed in from seven to ten days, and since bony union does not take place until the third week, the jury might find malpractice from failure to invert the foot after danger of gangrene had passed and before bony union took place. All agree there should be no inversion of the foot until the danger from gangrene had passed. The difficulty with this contention is that plaintiff’s fracture was not an ordinary Pott’s fracture, hut a severe and complicated one; that there is nothing inherently or obviously incredible about defendant’s testimony as to the conditions found the first day he examined the leg or as to their continuance for the length of time shown. The trial court therefore properly held that such conditions must be accepted as verities since there ivas no evidence to the contrary. Touching the right of the trial court to base a ruling upon defendant’s testimony, our attention is specially called to the case of Fitzgerald v. Anderson, 81 Wis. 341, 51 N. W. 554, where it was held that a verdict should not be directed upon the conflicting testimony of a witness as to a material matter, and it is claimed that the testimony of the defendant in this case is so conflicting that it was error to direct a nonsuit. We have carefully examined it and find no substantial conflict therein relating either to the condition of the foot or as to the treatment given it, and the case cited is therefore not applicable.

Another claim made is that the evidence of defendant, especially his examination under sec. 4096, Stats., shows that he was ignorant of the practice of inverting the foot in cases of Pott’s fractures and therefore did not do it in this case. Conceding for the sake of the argument that this is true, still if the treatment he gave was the proper one under the conditions existing his ignorance becomes immaterial. He says, however, that the reason he did not invert the foot up till about the 13th of February was because he feared gangrene, and that thereafter bony union began and he did not deem it good practice to then invert it. The treatment given plaintiff’s foot under tbe conditions as testified to by the defendant was practically sanctioned by all the doctors who testified as to what constituted good practice. It was therefore shown that defendant exercised such care and skill and pursued such treatment as physicians and surgeons in good standing usually exercised and pursued in the same or similar localities under the same or similar circumstances. This measured the extent of his undertaking. Nelson v. Harrington, 72 Wis. 591, 40 N. W. 228. See note to same case in 1 L. R. A. 719.

It is elementary that in negligence actions, including actions of malpractice, it is incumbent upon the plaintiff to show wherein defendant has been negligent or failed in his duty under the circumstances or conditions existing in the case that is tried. It is not enough to show that generally, or under other conditions, the conduct complained of might be found negligent. Here plaintiff failed to show that a condition warranting inversion existed at any time owing to the fact that the evidence shows the danger from gangrene continued till bony union took place and that thereafter it was not good practice to invert.

We have carefully examined the evidence in the case and from such examination have reached the conclusion that the nonsuit was properly granted.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on October 6, 1914.