209 Wis. 583 | Wis. | 1932
The sole question in this case is whether there was evidence from which a jury could find negligence on the part of the defendant with respect to his diagnosis and treatment of plaintiff’s injuries. On December 3, 1930, plaintiff had a severe injury to his arm and wrist, as a result of being thrown from an overturned automobile. He went to defendant’s office in Antigo about an hour after the accident. The defendant found a dislocated wrist and a lacerated back of the hand extending through the tendons but not to the bone. The ligaments of the wrist were, torn but not the tendons. Defendant treated the lacerations on the hand, administered anti-tetanus serum, and, after reducing the dislocation, put the arm in an aluminum Walker splint. This is a splint made to fit the lower portion of the hand and the forearm. The splint used did not extend to the elbow, although it did reach sufficiently far to include the portion of the arm which was later discovered to be fractured. On the day after the first treatment defendant took an X-ray. The plate did not turn out well, was'not sufficient to disclose the fractured radius, arid in fact was not taken for that purpose. Two days after the accident"'and
Negligence is claimed in two respects: (1) failure to use the X-ray to make a timely diagnosis of the fracture, and (2) failure to properly immobilize the arm. There is expert testimony to the effect that the X-ray is the usual and customary method adopted by physicians in the vicinity to diagnose a fracture and to check the progress of the healing, in order to ascertain whether there is a proper union of the bones and to remedy the situation if there is not. The defendant had an X-ray and fluoroscope in his office. We think the jury were entitled to believe that good practice and a proper discharge of his obligation as a physician required a more frequent and timely, use of the X-ray than was made
The next question is whether or not there is any proof of damage to plaintiff resulting from the failure properly to diagnose and treat the fracture. There is evidence to the effect that the quicker a fracture is discovered and dealt with, the better the results usually obtained. The evidence is that good results ordinarily follow proper treatment. There is evidence here of negligent diagnosis and treatment, and of a result consistent with such diagnosis and treatment. While there is evidence that open reductions are often necessary, and that angulation and bowing of the bones may sometimes result in the absence of negligence, we do not think this leaves the question of causation in the state where the jury would be required to guess or speculate. The question presented is that stated by Mr. Chief Justice Vinje in Vilter Mfg. Co. v. Industrial Comm. 192 Wis. 362, 212 N. W. 641: “Can a finding rest upon a preponderance of probabilities?” It was held that it could, citing Hallum v. Omro, 122 Wis. 337, 99 N. W. 1051. This case was followed by Pfister & Vogel L. Co. v. Industrial Comm. 194 Wis. 131, 215 N. W. 815, and Hafemann v. Seymer, 195 Wis. 625, 219 N. W. 375.
The question presented by an attack upon the finding of a court or jury is the same as that involved where the propriety of a directed verdict is in question. Had this case been submitted to the jury, and had the jury found that damage to the plaintiff resulted from the negligent diagnosis and treatment, we think such a finding would have to be sustained, upon the theory of the above cases that there is a preponderance of the probabilities or of the inferences in favor of such a finding.
From the foregoing it follows that the judgment must be reversed, and a new trial granted.
By the Court. — Judgment reversed, ánd cause remanded with directions to grant a new trial.