Ness v. YeomansNess v. Yeomans
- Reporters:
- , ,
- Before:
- Burr, Burke, Nuessle, Birdzell, Christianson
Thе defendant, a physician and surgeon, is charged with malpractice arising from the setting and treatment of a broken arm. The jury found for the plaintiff and, the court having denied a motion for judgment notwithstanding the verdict or for a new trial, the defendant appeals.
There are 87 assignments of errors, 66 оf which deal with rulings on the admission of testimony, 17 with reference to the charge given to the jury and the remainder with rulings on the motion for a new trial, etc. In addition there is a specific allegation that the evidence is insufficient to sustain the verdict.
On the 17th of November, 1929, the plaintiff suffered a fracture of the ulna of the right arm at a point about one third of the distance from the wrist to the elbow. Two days thereafter, while he was in the hospital in Minot, the defendant was called to treat him, and set the bone giving some subsequent treatment. Plaintiff‘s claim is the bone was not properly set and that the prоper subsequent treatment was not given. It is the claim of the defendant that under all of the circumstances of the case the union of the bone is a good union, and that if the plaintiff suffered from stiffness of the muscles and tendons
Many of the objections made by the defendant during the introduction of testimony center around the testimony given by one L.M. Ellithorpe. The plaintiff, in order to prove his case introduced certain X-ray pictures, some of which were taken by this witness.
As foundation for thе introduction of these pictures the witness testified that he was a duly and regularly licensed chiropractic under the laws of this state, with several years’ practice and with six years’ experience in the making of X-ray pictures. He showed that he had made a thorough study of human anatomy for аbout two years while at school, and that this was part of his training; that he had taken several hundred of these pictures and knew the contour, position and action of the bones in the human body. He showed the position in which the arm was placed at the time of the taking of the X-ray, and stated thе picture identified was a true and correct picture of the arm at the time the picture was taken. He was then permitted to testify as to what the picture showed — the break in the bone, its position and the nature of the union. To all of this the defendant interposed objections, the theory being that because the witness was a chiropractor, pursuing a system of treatment for human ills different from that pursued by the defendant, he was not competent to give expert testimony.
There was no error in permitting the witness to testify as to the taking of the X-ray photographs and what these showed. The fact that he was a chiropractic was a mere incident except so far as it showed his knowledge and study of human anatomy. The names, number and position of the bones in the human body are the same, whether one is a regular physician, a chiropractic or a lаic. It is not the school which he follows; but his knowledge, experience and special training which qualifies the witness to testify as an expert in such cases. A chiropractor may testify as to matters in which he is qualified to speak so long as he is not attempting to testify in regard to a school of treatment separate and distinct from his. He could not testify as to the methods and practices of this other school without showing his qualifications therefor. He was not so testifying. In the matter before the court it was immaterial that he was a chiropractor.
Owing to the quality of the evidence introduced, as shown by the record, it is not necessary for us to pass upon other assignments of error in the introduction of testimony nor the allegations of error with reference to the charge given by the court or failure to charge.
According to the testimony of the plaintiff he was fifty-five years оf age at the time of the accident. He broke his arm November 17, 1929. Two days thereafter he came to the hospital and the defendant commenced treatment. Plaintiff says the defendant examined the arm through an X-ray machine, attempted to set the bone, put on a cast with the аssistance of one of the nurses, and that the defendant never examined it again through the X-ray; that the nurse put the arm in a sling with the palm of the hand up; that he returned in about four weeks, for treatment and this time the defendant opened the cast, drew it tighter and plaintiff went home for another two wеeks; when he came back defendant was absent and he consulted Dr. C; later he went to another doctor and did not go back to defendant because he thought “he couldn‘t do me anything when it wasn‘t set right.” He says that at the end of eight weeks the defendant told him to let the arm drop down to flex the joints and to “start to work with it but I was not able to do that;” and the other doctor told him to do the same, but it hurt too much; that he could turn his arm in a certain way but not in other ways; that Dr. Cameron took an X-ray and later Dr. Devine and that during the summer of 1929 Dr. Ellithorpe the chiropractor took X-ray pictures. It seеms also that just about the time of the trial further X-rays were taken by Dr. Erenfeld and Dr. Knapp in the presence of the defendant. He also testified in regard to his pain, suffering and swelling. He says the defendant told me “I had
The defendant narrated the method which he employed for the setting of the bone and for the prevention of atrophy of the muscles and stiffness of the joints. He testified that at the time he set the bone he made use of the fluoroscope, that the light was placed over the part of the arm he desired to examine and that while it was in this position he could see the bone, tissues and muscles with perfect plainness. The arm was under the fluoroscope all of the time until the operation was completed; that it was only a matter of a few minutes to thus attend to the setting of the bone; that he had the arm placed in a sling, midway between pronation and supination; that this was the proper way; that he gave the plaintiff instruсtions to return in a few days for examination; that he did return and that after attending to him this
In addition to the defendant four medical men testified as expert witnesses. The X-ray pictures introduced in evidence were submitted to each, and the examination of the picture was part of the foundation for his testimony. While all of these were produced as witnesses by the defendant yet two of them were doctors emplоyed by the plaintiff himself for treatment after he had ceased to consult the defendant. All of these expert witnesses testified that the union of the bones was a good union, that the treatment given by the defendant was the proper treatment, that the stiffness of muscles, and loss of motion if any, came from the lack of exercise and that the longer this lack of exercise continued, the greater would be the difficulty in restoring motion and the greater the amount of pain suffered. On cross-examination an attempt was made to show that some if not most of the pain came from thе effect of the projecting portion of the bones on the surrounding nerves. The experts deny this. The plaintiff‘s contention is that the lack of perfect apposition as well as the dispute regarding position of arm in the sling, and that a more or less ragged edge of bone might irritate the muscles and nerves, were facts for the jury to use in determining negligence. The plaintiff himself testified that the attempt at massage, the exercise of the arm, the treatment given by the doctors gave him great pain, in fact it is evident that one reason why he did not continue the exercise was beсause of the pain which it caused.
There is some dispute between the parties to this action as to the way in which the defendant set the bone and the extent of the use of what the plaintiff called the X-ray and the defendant said was the fluoroscope. There is no expert testimоny whatsoever showing negligence in the setting of the bone. Plaintiff claimed one of these expert witnesses, whom he had consulted prior to the examination of the action, had told him his arm was ruined but this doctor denied this
It must be remembered the defendant is not responsible for the injury — he did not cause the fracture. He is not responsible for the result of his treatment unless the result be caused by his negligence. There is nothing shown in this case which was not consistent with good practice neither is there anything in good practice which the defendant did not do. The burden of proof is on the plaintiff to show that the proper method was not employed, that the proper treatment was not given and that the doctor violated some of the rules of good practice so that the result complained of necessarily came from this violation of good practice. According to all of the testimony in the case as to what is the standard of conduct for the defendant to follow, he followed. Taking the plaintiff‘s own testimоny he does not contradict this. It is true he says the doctor looked through the X-ray but once when he was setting the bone but the undisputed evidence shows that the arm was at the machine all of the time the bone was being set and that the process required but a few moments of time. The doctor shows thаt
It is clear the evidence is insufficient to justify the verdict. As stated in Gallagher v. Kermott, 56 N.D. 176, 216 N.W. 569, supra, “What did the defendant do that consistently with good practice, he should not have done?” What did he omit to do? It is possible the plaintiff may secure expert testimony to contradict what has been shown by the defendant, therefore the action will not be dismissed, but the order denying new trial will be reversed and the case remanded for a new trial.
BURKE, Ch. J., and NUESSLE, BIRDZELL, and CHRISTIANSON, JJ., concur.