23 Colo. App. 163 | Colo. Ct. App. | 1912
delivered the opinion of the court.
Appellee brought suit to recover damages for injuries alleged to have been caused by the malpractice of the defendant, a physician and surgeon residing in the city of Denver. The complaint alleged that on June 23rd, 1907, plaintiff broke his arm near the shoulder; that he employed defendant to set the arm and treat the injury; that defendant failed to make proper examination of the arm to determine the nature of the injury, failed to properly diagnose the case as a fractured arm, but diagnosed it as a dislocation of the shoulder, and failed to properly set the fractured part of the arm, by reason of which plaintiff suffered severe pain and the arm was permanently shortened and weakened. Answer and reply were duly filed. Upon the issues made, trial was had, verdict returned and judgment rendered for the plaintiff in the sum of eight hundred dollars. Defendant challenged the sufficiency of the evidence to establish his negligence or want of skill and injury resulting therefrom, by motions for a directed verdict in his favor, made both at the time plaintiff closed his case in chief, and when all the testimony had been taken, and by motion for a new trial. That question, together with errors assigned for refusal to give certain instructions tendered, and for giving one to which objection was made, will be considered.
The evidence shows that plaintiff fell from a horse and thereby fractured his right arm. A physician was called who, within an hour of the time of the accident, examined the arm, pronounced the injury a dislocation of the shoulder, bandaged the arm, bound it to the body, and for lack of facilities at that place, advised that plaintiff (a boy 5 years of age) be taken to Denver for treat
The question for determination was whether the defendant was guilty of negligence or want of skill in diagnosing and treating the injury during the time he had charge of the case, from which the injury complained of, if established, was caused.
In determining the liability of a physician and surgeon certain rules applicable to this case are well established by consensus of authorities. (1) In the absence of a special contract otherwise providing, a physician and surgeon employed to treat an injury, impliedly contracts that he possesses that reasonable degree of learning and skill ordinarily possessed by others of his profession, and that he will use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge to accomplish the purpose for which he is employed, and that he will use his best judgment in the exercise of his skill in deciding upon the nature of the injury and the best mode of treatment. Burnham v. Jackson, 1 Colo. App., 237; Jackson v. Burnham, (same case) 20 Colo., 532; Bonnet v. Foote, 47 Colo., 282, 285; 2 Thompson on Negligence, 2183. (2) He does not undertake to warrant a cure and is not responsible for want of success, unless that want results from failure to exercise ordinary care, or from his want of ordinary skill. Burnham v. Jackson, supra; Bonnet v. Foote, supra. (3) If-he possesses ordinary skill and exercises ordinary care in applying it, he is not responsible for mistake of
Applying these rules we will first determine whether the testimony was submitted to the jury under instructions which correctly define the law applicable to the case.
1. Defendant requested an instruction to the effect that the fact that perfect or even good' results were not obtained, is not of itself any evidence that the physician -was negligent, and that in determining the question of
In Bonnet v. Foote, supra, the supreme court of this state, by Mr. Justice Gabbert, said that, the fact that an injured limb is defective after the patient has recovered, is not prima facie evidence of negligence on the part of the physician treating it. That was as far as it was nec
“The fact that the patient died immediately after the operation is, in the view here taken, not significant. In Haire v. Reese, 7 Phila., 140, Judge Thayer said: 'No presumption of the absence of proper skill and attention arises from the mere fact that the patient does not recover. * * God forbid that the law should apply any rule so rigorous and unjust as that to the relations and responsibilities arising out of this noble and humane profession,’ ” and quotes with approval the language of Judge (now president) Taft in Ewing v. Goode, supra, in which that distinguished man and jurist said:
“A physician is not a warrantor of cures. If the maxim res ipsa loquitur were applicable, and failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon, causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume a financial liability for nearly all the ills that flesh is heir to.”
In Wood v. Barker, supra, a cause in which the propriety of treatment of fracture by a physician was in issue, the supreme court of Michigan said:
“The fact that his limb is not restored to perfect soundness is not proof that he had been maltreated. ’ ’
In Sims v. Parker, 41 Ill. App., 282, the court said that proof of a bad result is of itself no evidence of negligence, and that the jury cannot draw the conclusion of negligence from proof of what the result' of the treatment was.
The maxim res ipsa loquitur has no place nor application in a case like this, and the jury should have been so advised. ,
The rule insisted upon in the instruction requested
2. Appellant requested an instruction to the effect that in considering whether the defendant, in his. diagnosis, care and treatment of plaintiff’s injured arm, exercised ordinary care and skill, the jury could not set up a standard of its own, but. must be guided in that regard solely by the testimony of physicians; and that if they were unable to determine from the testimony of physicians what constituted ordinary care and skill under the circmnstances of this case, then there was a failure of proof upon the only standard for their guidance, and the evidence would be insufficient to warrant any verdict for the plaintiff.
The authorities are practically uniform in holding, and counsel for plaintiff admits, that as to what is or is not proper practice in examination and treatment, or the usual practice and treatment, is a question for experts, and can be established only by their testimony. But counsel for appellee attempts to draw a distinction between the character of testimony necessary to establish a standard of proper treatment, and a standard of what constitutes ordinary care and skill. We perceive no dif
3. The court instructed the jury that if it believed from the preponderance of the evidence that at the time
The fact that defendant was discharged immediately after he had discovered the fracture, and before he had set or attempted to set the arm, was disclosed by plaintiff’s testimony in chief, as well as by that of the defendant ; therefore, it became necessary for plaintiff to establish as an affirmative part of his case, by a preponderance of the evidence, that the condition of which he complained existed at the time of the discharge, and that permanent injury would not have been averted by compliance with defendant’s directions. The instruction so given changed the burden of proof and placed it upon the defendant, requiring him to establish by a preponderance of the' evidence that such condition did not exist; that union had not taken place to such an extent as to make it impracticable or unreasonable for plaintiff to comply with his advice that the fracture be reduced after that lapse of time. In that respect the giving of the instruction was error.
II. Plaintiff alleged that defendant, being called to set a fractured arm, diagnosed the case.as a dislocation of the shoulder, and treated it accordingly. Defendant alleged that he was called to treat a recognized case of dislocation, and to alleviate the suffering and condition arising therefrom. The testimony of both plaintiff and defendant tends to support the latter view, and defendant may have so understood his employment, as it is undisputed that he was notified upon entering the case that the
Some of the matters to which we have called attention, and concerning which we have expressed our own conclusions, are doubtless matters which, under proper instructions, should be left for determination by the jury. But, as a whole, the evidence is so unsatisfactory, unsubstantial and insufficient, as viewed by us, to fix liability upon the defendant, as to emphasize the necessity for the instructions which were requested and refused, as well as a proper modification of the instruction given and objected to; and to justify a refusal to sustain the verdict or affirm the judgment upon the principle that such errors are not substantial or prejudicial.
Objection is also made to the verdict and judgment as excessive, it being insisted that if any judgment whatever can be sustained, it should be for nominal damages only. As we view the case upon the record, the only evidence of damages to sustain a verdict for any amount would be that which tends to show that plaintiff suffered greater pain by reason of the manipulation of the arm while considering the injury a dislocation than he would have suffered had proper diagnosis been theretofore
Judges’ Cunningham and Morgan dissent.