McCollum v. Barr

This is an action for damages resulting from defendant’s alleged unskillful treatment as physician and surgeon of an injury to plaintiff’s right forearm.

It is alleged in plaintiff’s second amended complaint that, on October 24, 1915, he fractured and broke his right forearm in cranking an automobile, and upon that day he called upon defendant and informed him thereof, and employed defendant as a physician and surgeon “to examine such fractured and broken forearm and ascertain the extent of -the injury thereby caused and to set the same, if broken, and to treat and heal the same for whatever the injury was to it.” It is further alleged as follows: ‘ That defendant thereupon, as a physician and surgeon and pursuant to such employment and undertaking had a reasonable opportunity for examining and did examine the injured forearm of plaintiff; that by the exercise of ordinary skill in making said examination the defendant could have discovered that said plaintiff’s forearm was fractured and broken, but defendant examined plaintiff’s forearm in a negligent and careless manner, and without exercising ordinary skill and by reason thereof defendant failed to ascertain that plaintiff’s forearm was fractured and broken, and he, the said defendant, treated and tried to heal plaintiff’s injured forearm, as though the same was not fractured and broken, greatly to plaintiff’s injury.”

In his answer defendant alleges that plaintiff came to him for treatment as alleged in the complaint “with the wrist joint of his right arm completely dislocated backward; but defendant denies that his right forearm was broken or fractured”; that “defendant then and there examined said forearm and used all due diligence and care to ascertain the extent of the injury thereby caused, and he did treat the same and continued such treatment at intervals whenever called upon by plaintiff until on or about the eleventh day of December, 1915. That up to said time defendant discovered no fracture in plaintiff’s said forearm, nor had plaintiff

The cause was tried by the court with a jury and plaintiff had the verdict for the sum of one thousand dollars, and judgment followed accordingly for plaintiff. Defendant appeals from the judgment.

Plaintiff testified that he was cranking his automobile in Yuba City, “shoving down hard, and it back fired, throwed my arm back in this condition, it made a big lump up here and a lump underneath here, and after that I immediately got a horse and buggy and came to Dr. Barr’s residence,” where he met Dr. Barr in Yuba City. He was asked to describe the condition and general appearance of his arm when he called upon Dr. Barr and answered: “Well, my arm— there was a large lump underneath here and a hump on the top and the bones were spread out here and inclined down a little bit”; he stated that his hand “was kind of back a little bit; . . . my hand was black and blue and up to my elbow here. ’ ’ He was asked to state what Dr. Barr did and said at this time: ‘ The doctor examined my arm, pressing in here in this manner and on the side for about a minute and told me to come out to his automobile and he would examine it further. I went out to his automobile there and he asked Mr. Beaver— Q. Who is Mr. Beaver? A. He is a brother-in-law of mine—to hold his arm on my shoulder, he would pull on it in this position, worked my arm up and down like this a little bit, still continuing to press on it, and asked Mr. Beaver to hold my arm in this position while the doctor wrapped it with the bandage, merely wrapped it, then helped me on with my coat, stuck my hand through the bib of my

It came out on cross-examination that Dr. Kauffman told plaintiff his wrist was broken. This was the day before plaintiff made his last visit to Dr. Barr. “Q. So you said, ‘Dr. Barr, is my wrist broken ? ’ A. Yes, sir. Q. You asked him the second time? A. Yes, sir. Q. He told you he thought not? A. He told me it wasn’t broken. Q. And you said, ‘That is all I want to know?’ A. I told him I wanted to know if my arm was broken. Q. Then what did you say to him? A. ‘That is all I want to know if my arm is broke.’ Q. Why didn’t you tell him that you had the opinion from another doctor or surgeon that the wrist was

Dr. Kauffman testified that when plaintiff visited him he examined plaintiff’s arm, both visually and by use of the fluoroseope, “an apparatus used in conjunction with the X-ray, coil and tube whereby one can visually see the bones or other structures without taking a plate”; that he found a fracture of both of the bones, both the radius and ulna of the right forearm, -these two bones connected with the bony structure of the forearm. ,“Q. What condition did you find in the arm? A. Both bones broken. Q. What was the exterior appearance of the arm at the time Mr. McCollum called upon you? A. The lower end, that is, the lower end of the radius where the bone was broken, the broken piece, the detached piece of the radius, lay heaped up on top of the portion of the radius associated with the elbow joint, and on the underneath surface the distal extremity, the other end of the radius, the other end of that broken bone, was sticking out in a projection underneath. The broken piece was heaped up on top of the bone and there was a projection due to the unbroken piece projecting below it. Q. Was this visible to the naked eye? A. Yes. Q. What was the position of the styloid process, that is, the ends of each of the two bones of the arm at the time? A. The styloid process of the radius was up above the level of the remaining portion of the radius; that is to say, instead of being in line with the rest of the bone, it was sticking up about three-quarters, between three-quarters and an inch out of alignment, and the styloid process of the ulna, while not as'much difference, was still distinctly out of alignment.”

Dr. Hunkin testified that plaintiff consulted him and that he found that both bones of the right forearm—the radius and ulna—were broken, with some displacement; that he made an examination with the X-ray, which disclosed both bones broken; that plaintiff came to him December 15, 1915, and that he “saw him up to March 25, 1916; that plaintiff was taken to the' Fairmont Hospital, where he was operated upon. “Q. Will you state what you did and what course was followed in making the first examination when Mr. McCollum first called upon you? A. I examined him with my fingers and with the X-ray. Q. Will you state what the

Defendant testified in his own behalf. He was asked to give his account of plaintiff’s injury and the treatment given. He replied: “He came to my residence on October 24, 1915, informing me that he had injured his hand by cranking an automobile and wanted me to take care of it. I looked at the hand and my bandages and case were out in the automobile; we went out there and with the assistance, I believe he said his brother-in-law, Mr. Beaver, I believe is the name—between us, Mr. Beaver holding the arm and my pulling and manipulating the wrist, I reduced a dislocation of the right wrist between the carpal and metacarpal bones. Q. To what extent did you at that time examine the forearm or wrist? A. I examined it very thoroughly at that time to see—beforehand to see what the conditions were, and after placing them to seeing that they were in place. Q. Did you at that time discover any evidence of a' fracture? A. I did not. . . . Q. For what purpose was your examination made? A. For the purpose of ascertaining the extent of the injury. Q. Proceed, if you will, and detail the times when you treated him and the nature of the treatment. A. During the same day he called on me, saying that his hand was quite painful and was swelling very rapidly; I stated I would be at the Rideout Hospital in a short time and to meet me there and I had to make a call, he got in the automobile with me and I made the call; we returned to the office, I rerhoved the bandage I had previously applied,, then applied Levis’ metallic splint to the hand and rebandaged it again ¿ I also examined the hand very thoroughly at the office at that time. ’ ’ He testified that plaintiff came to him at different dates, giving them, in October and-November, and, on November 3d he removed the splint from the hand and applied the bandage only. “Q. At that time,'in your opinion, what progress was being made with the forearm?

On cross-examination he testified that when plaintiff first came to him the discoloration was as he had stated, but later, within two or three days, “it showed further up”; that he employed no method of examination of plaintiff’s injury ‘ ‘ other than digital and visual, ’ ’ and did not use a fluoroseope or X-ray; that he visited patients in the Rideout hospital and that there was an X-ray apparatus there; that he treated the case as one of dislocation; that in his practice if he had a suspicion that there was a fracture he used the X-ray, .but in this ease he had no such suspicion.

The foregoing facts are found in the testimony of the only witnesses who saw or treated plaintiff or had personal knowledge of his injury. The remaining testimony is that of physicians who had practiced surgery given as experts. For example, the following questions propounded to Dr. Miller by defendant, and his answers, will illustrate the scope of this class of evidence relied upon by defendant: “Q. Assume on the 24th of October, 1915, the plaintiff here was at that time 27 years of age, called upon a surgeon, the defendant in this case, stating to him that he, the plaintiff, had just that clay received an injury to his right forearm or wrist by the cranking of an automobile. Will you please state to the jury what, in your opinion, ordinary care and skill would require of the surgeon in diagnosing and treating that injury ? A. The first thing we do usually is to inquire how the accident happened, the direction in which the force was applied and the amount of force that was exerted, as near as can be found out; then we look at the arm or the wrist, note if there is any deformity, any swelling or discoloration, then we usually put it through certain motions, using both hands to see if there is a dis

Dr. Gray, called by defendant, gave somewhat similar answers to like questions put to Dr. Miller. On cross-examination he testified that in case of doubt he regarded it as essential to use the X-ray; that the treatment described by him had reference to dislocations and not to fractures; that the treatment would not differ “if the bones were properly approximated”—that is, “if the bones had set in their proper position.”

Dr. Kauffman, called by plaintiff, testified that where an injury such as the one in question is presented to a surgeon the usual and recognized method of examination among the profession for the purpose of diagnosis is by the X-ray, and that an examination without the use of the X-ray “would not indicate the exercise on the part of the examining surgeon of ordinary skill and care. Q. If a patient’s arm, at the time of examination, reveals a deformity in the form of a prominence on the inner or front surface of the forearm, a widening of the two bones of the forearm at the wrist and a discoloration of the forearm from the wrist to a point near the elbow, would that condition indicate a fracture or

Dr. Casper, adjunct surgeon of Mount Zion hospital, San Francisco, was called by plaintiff: “Q. If a patient who has injured his right forearm in cranking an automobile calls upon the surgeon to examine the forearm and ascertain the cause of the injury, and if the forearm at the time reveals a deformity near the wrist, ascertainable by observation, would the taking of the patient’s hand by the surgeon, coupled with the pressing of the latter’s thumb upon the wrist bones of the patient’s arm, and other manipulations, the feeling with the fingers of both bones of the arm and the pulling of the patient’s arm,

The instructions given by the court correctly and without objection stated the principles of law by which the jury were to be governed as follows:

“One who holds himself out to the world as a physician and surgeon impliedly contracts that he possesses the skill properly to practice his profession and specialty. He is bound, therefore, in the discharge of his duties, to use ordinary care, diligence, and skill, according to the circumstances of the case.

“If the defendant in this case possessed the skill and learning, which is required of one of his profession, and failed to exercise it in this ease, and, in his examination and treatment of patient’s injured arm, was careless and negligent and the plaintiff was injured and sustained damages in consequence

thereof, the defendant is liable for such damages as plaintiff has sustained.

“A patient is entitled to ordinarily careful and thorough examination such as the circumstances, the condition of the patient and the physician’s opportunities for examination will permit. If there is a reasonable opportunity for examination and the nature of the injury or ailment can he discovered by the exercise of ordinary care and treatment, then the physician is answerable for failure to make such discovery.

“The court instructs the jury that if you find that plaintiff’s forearm was fractured and displaced, and not dislocated, at the time he consulted defendant, and during' the times he remained under defendant’s treatment and that defendant’s failure to ascertain that such forearm was fractured and displaced, and his subsequent treatment of the same for a dislocation, were the result of a failure on the part of defendant to exercise, as-a surgeon, ordinary care and diligence in connection therewith, you will find, under the evidence, that plaintiff is entitled to a verdict for the amount of the damages which in your opinion he should recover in accordance with the evidence in the case. (

“A surgeon does not undertake to perform a cure no-r does he undertake to use the highest possible degree of skill, but he undertakes only a fair and reasonable degree of skill and the question, for the jury to decide is whether in his treatment of the plaintiff defendant used such reasonable care and skill, and unless you find from the evidence that he failed in this respect plaintiff cannot recover and your verdict must be for defendant.

“In his treatment of plaintiff defendant as a physician and surgeon was not required to avail himself of the use of any ■particular appliance. All that was required of him was to adopt such means and follow such procedure and use such appliances as under the circumstances was required-in the exercise of ordinary care and skill; and if you find from the evidence that in this regard defendant did use ordinary skill and care, then your verdict must be for defendant.

‘ ‘ Even if you find from the evidence that at the time plaintiff called upon defendant for treatment he was suffering both from a fracture and dislocation of the forearm, and-that defendant treated him for a dislocation only, and that in so doing defendant exercised reasonable skill and care to ascer

tain and treat the nature of plaintiff’s injuries, then your verdict must he in favor of defendant. ’ ’

In point of numbers the expert witnesses called by defendant and testifying substantially as did Dr. Miller and Dr. Gray exceed the number testifying as experts at plaintiff’s call. It will be observed, however, that the attention of defendant’s expert witnesses was directed more particularly to a case where the attending surgeon’s diagnosis and treatment had relation to a case of dislocation, whereas the two expert witnesses called by plaintiff were given a statement of what was claimed to be the facts in the present case as shown by the evidence. Appellant’s contention is that he made an honest diagnosis upon sufficient examination according to accredited practice in such cases, and did all he could in subsequent treatment, and all that ordinary care and skill required to accomplish a restoration of the injured forearm to its normal condition; that his diagnosis revealed to him no more than a dislocation, and having properly treated the injury as such no liability attached for results. Defendant not only diagnosed the case as one of dislocation and treated it as such for seven weeks but, in his verified answer to the complaint, he denied that plaintiff’s forearm suffered a fracture, although the testimony of Dr. Kauffman and Dr. Hunkin leaves no doubt that both bones of plaintiff’s forearm were broken.

It is very clear that defendant made a faulty and erroneous diagnosis of plaintiff’s injury and adhered to it during the period of his treatment. Does the evidence sufficiently support the implied finding of the jury that this erroneous diagnosis was illy considered and carelessly or negligently made and not warranted by the facts as they presented themselves to defendant? In solving the question we must give to the evidence such interpretation as the jury gave it, and deduce from it such inferences as the jury deduced, if such interpretation and deduction were such as reasonable men might make in the discharge of their duties as jurymen.

The testimony of Dr. Kauffman was that when plaintiff came to him while still under defendant’s care, he discovered at once, by visual and digital examination, that plaintiff’s forearm was fractured and this he confirmed by the X-ray. So, also, Dr. Hunkin made the same discovery without using the X-ray. Dr. Kauffman’s description of the

At the oral argument the attorney for defendant assumed that defendant treated the patient properly for a dislocation .and that had the diagnosis 'been correct the treatment was proper. But we think counsel was in error in assuming that “about the only issue made during the trial was,-as to whether or not Dr. Barr should have examined the patient, when making his diagnosis, by the X-ray process.” Counsel also . claimed that it was “after an X-ray had been applied to the injured member that it was discovered, or claimed to have been discovered, that there had been a fracture.” We think counsel justified in his assumption that the treatment given by defendant was proper for a dislocation had the defendant’s diagnosis been correct. But whether or not defendant should have used an X-ray in making his diagnosis was not the only issue. As to that the experts differed in opinion, and it was shown that surgery had been successfully practiced before the X-ray was discovered. Apart from the conflicting

Counsel quote as follows from the opinion in Hesler v. California Hospital Co., 178 Cal. 764 , [ 174 Pac. 654 ] : “It is never enough to show”—that is, as against a physician—“that he has not treated his patient in that mode, nor used those measures, which in the opinion of others, even medical men, the case required; because such evidence tends to prove errors of judgment, for which the defendant is not responsible as much as the want of reasonable care and skill, for which he may be responsible,” citing a New Hampshire case. It may be doubted that the degree of skill and care of a physician in diagnosing and treating disease is the same as that of a surgeon in all cases of surgery.- A broken or dislocated member of the body, usually discernible to the eye or the touch of the surgeon, presents an entirely different problem from internal disorders whose manifestations are obscure and often misleading. However this may be, the question is always open to inquiry whether or not the physician or surgeon in a given case did in fact exercise ordinary skill and care. Phe statement above quoted has reference to the force

We cannot say that the verdict was without sufficient support.

Error is assigned “in ruling against the introduction of evidence.” During the cross-examination of Dr. Kauffman by defendant an offer was made to show by a patient of Dr. Kauffman’s, present in court, that he had treated this patient Avithout resort to the X-ray. The purpose was to discredit his testimony. The court sustained plaintiff’s objection. To have permitted this would have involved an inquiry into the character of this patient’s injury, the diagnosis made and the treatment given, and practically opened up an investigation upon a collateral matter much the same as was being investigated in the case itself. The witness testified that he had treated, patients with dislocated and fractured forearms “without subjecting the member to the X-ray process.” He also testified that in case of “pure dislocation” the X-ray was not essential. Having had these answers it was not error to rule against exhibiting the witness’ patients.

A hypothetical question was propounded to Dr. Kauffman in which the facts in this case were stated and an opinion asked as to the length of time it would take for “the bones to knit and the injury to heal if they were primarily set and if primary attention and treatment were given to the patient 1 ’’ Objection was made that the question omitted to state “the condition of the patient, nothing at all except the mere fact of the injury.” The point now made that his opinion was not founded upon ‘ ‘ all the facts of the case goes to the weight of his evidence rather than to its competency or materiality.” (Reardon v. Richmond, Land Co., 21 Cal. App. 357 , [ 131 Pac. 894 ].)

Error is claimed for misconduct of plaintiff’s attorney in seeking to get before the jury statements made by defendant to plaintiff in a conversation between plaintiff and defendant after plaintiff returned from San Francisco. Defendant’s attorney moved to strike out all the testimony. “The Court: Strike it out. The jury is instructed to pay no attention to the testimony that has been stricken out, the answer of the witness as to the conversation taking place between

Defendant offered the following instructions, which were refused:

“Unless you find from the evidence that when plaintiff called upon the defendant for treatment, or during the course of the treatment, plaintiff’s forearm was fractured, then your verdict must be for defendant.

“Plaintiff in this action alleges that defendant, as a surgeon, examined his forearm in a negligent and careless manner and without exercising ordinary skill, thereby causing . the injury and damage claimed by him in his complaint, and I instruct you that the burden rests upon the plaintiff to prove these allegations by a preponderance of the evidence and that if he fails in this respect, you should find your verdict for defendant.”

•Of the first of these instructions it may be said that although defendant in his answer denied that plaintiff’s forearm was fractured, the testimony was uneontradieted that plaintiff’s forearm was fractured, and when on the witness-stand defendant made no claim further than that he did not discover any fracture. We think the jury must necessarily have found that plaintiff’s forearm was fractured and hence the refusal to give the instruction was not error.

As to the second instruction, the court instructed the jury that “the burden rests upon the plaintiff to prove every material allegation in his complaint and if he has failed in this respect you should find your verdict for defendant.” The error now assigned is that the court in its instruction failed to tell the jury that plaintiff must prove every material allegation “by a preponderance of the evidence.” This omission we do not think of sufficient importance to justify a reversal. Furthermore, the plaintiff not only alleged negligence in examining plaintiff’s forearm, but in its treat

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.