187 P. 445 | Cal. Ct. App. | 1919
This is an appeal by the defendant from a judgment of two thousand dollars against him in an action brought by the plaintiff to recover damages for alleged improper surgical and medical treatment administered to the plaintiff by the defendant, a practicing physician of San Francisco. The facts are, stated briefly, that on the twenty-fourth day of April, 1916, plaintiff received a gunshot wound in the right elbow, the bullet passing through the joint and shattering the bones. He was treated at the emergency hospital, where the wound was bandaged, and he returned to his home. During the evening of the same day the pain became very severe and he called the defendant, a physician, who administered a hypodermic to ease the pain. The next morning the defendant directed the plaintiff to go to a hospital for treatment, and while plaintiff was at the hospital defendant examined the wound, had X-ray pictures taken and bandaged the arm again. The arm was badly swollen and inflamed and it was decided that an operation was not advisable until this condition was relieved. On the eleventh day of May, the swelling and inflammation having subsided some, an operation was performed by the defendant, assisted by Dr. Remmell, and the arm was placed in a plaster cast, through which an opening was made to allow access to the wound for cleansing and treatment. Later this cast was removed and the arm placed in splints. After the operation the plaintiff called regularly at the office of the defendant and was treated by him. The arm showed signs of infection and discharged pus from the date of the operation until August 21st. At this date, the wound having failed to heal, X-ray pictures were again taken, and the defendant advised the plaintiff that it would be necessary for him to undergo another operation. At this time the defendant stated to the plaintiff that he would take him to another physician, Dr. Stoddard, who had just returned from the war zone and who had had considerable experience with injuries of this character. Plaintiff *374 and defendant together consulted Dr. Stoddard, who also advised another operation. Plaintiff thereupon discontinued his visits to the defendant's office and consulted physicians selected by him, who performed a second operation. After the second operation the wound healed rapidly, but the elbow remained stiffened.
[1] The appellant attacks the verdict as unsustained by the evidence, and this argument raises several questions of law. The first of these is a construction of the evidence under the rule laid down in the case of Houghton v. Dickson,
We have discussed this testimony at length because upon it plaintiff must rest to establish negligence in the treatment received by him. We think it falls far short of the proof required.
[2] The respondent argues that because the defendant stated to the plaintiff about August 20th that he would take him to Dr. Stoddard for the second operation, because Dr. Stoddard had had more experience with such cases and had just returned from the war zone, and that he, defendant, had not had a case like this one before, this amounts to an admission of incompetency and unskilfulness upon the part of the defendant. We think these statements are susceptible of no such construction. As pointed out before, Dr. Coffey testified that in an experience covering eighteen thousand fracture cases he had never seen a case like this one. The defendant testified that he had had considerable experience in fracture cases, but had never had one precisely like this. The fact that Dr. Stoddard was admitted to be more experienced and skilled along this particular line does not imply that the defendant did not possess that reasonable degree of learning and skill possessed by others of his profession in his locality. This question is discussed in the case of Houghton v. Dickson, supra, where it is said that the fact that some other physician may have discovered a dislocation in an arm does not show a want of ordinary care in the defendant physician, since the physician who made the discovery may have been a man who, by reason of superior learning and advantages, possessed far more than ordinary skill in his profession. The court in that case quotes from the case of James v. Crockett, 34 N. B. 540, as follows: "A surgeon does not undertake to perform a cure, nor does he undertake to use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself . . ." Surely it will not be contended that the measure of ordinary skill is the amount of skill and experience acquired by physicians who *377 have been working for some time in the war zone and handling a constant succession of difficult and unusual cases.
[3] Though the determination of the questions herein discussed cuts the foundation from under the judgment in this case, it is pertinent to remark also that the record contains no evidence that it would have been possible or likely by any course of treatment, no matter how skillful, to have restored to the plaintiff the full use of his arm after an injury such as occurred here. The fact that a patient does not make a complete recovery raises no presumption of the absence of proper skill and attention upon the part of the attending physician. (Haire v. Reese, 7 Phila. (Pa.) 138, quoted inHoughton v. Dickson, supra.)
It becomes unnecessary to discuss the other points urged by the appellant.
The judgment is reversed.
Brittain, J., and Nourse, J., concurred.