Neifert v. Hasley ( 1907 )

Ostrander, J.

Plaintiff, a man 30 years old, was badly injured in May, 1903, by machinery. According to his testimony, his right arm was broken in three places between the shoulder and elbow, some ribs were broken, his leg was broken just below the knee, he was badly hurt about the head, and a portion of his skull was gone. Defendant, a physician and surgeon, attended him until some time in the summer, and, as plaintiff claims, was negligent and unskillful in his treatment. The declaration alleges, as improper treatment, permitting and causing the broken brones not to be placed in apposition the one to the other, the muscles, ligaments, and tendons not to be properly placed, so that they could properly adhere to their proper places by natural processes, the leg and foot caused to be and become greatly swollen, inflamed, festered, and diseased, pus permitted to accumulate and remain, so that it became and was necessary to amputate a portion of the foot. The result is alleged to be a weak, stiff, deformed arm, a crippled leg and foot. The case coming on to be tried, the court, when plaintiff’s case was rested, directed a verdict for defendant. ,- This ruling and direction is assigned as error. We are therefore called upon to review the testimony produced for plaintiff.

Counsel for appellant has directed attention to that portion of it which, he thinks, made a case for the jury. He relies upon evidence of the fact that the arm was not- set until 19 days after the injury, the opinion of plaintiff that there was no reason for not setting it earlier, the statement of Dr. Keig that an arm should be set as soon as possible, if everything is in condition to do it, mentioning as a preventable condition an arm too badly bruised, the opinion of plaintiff that the arm “is not properly set.” He relies, also, upon the testimony of plaintiff, to the effect that Dr. Parker said to defendant, after learning that the arm was not set: “What do you expect to get out of that? You will have a flail arm out of it.” He relies, also, upon the fact that Dr. Parker advised application of heat to the leg; the argument made being that defend- ( ant did not use a well-known remedy, and neglected to apply hot water to stimulate the circulation until told to do so by Dr. Parker. There is also the testimony concerning the amputation of the toes and of the condition of plaintiff at the time of the trial. The witnesses for plaintiff were himself, his wife, and Dr. J. H. Reig. It appears that on the day succeeding the injury, when plaintiff’s leg was dressed and set, two physicians besides defendant were present. Later Dr. Parker was in consultation with defendant. When the toes were amputated, .Dr. Stevens performed the operation, and Drs. Reig, Pike, and another physician were present. From Dr. Reig we get no testimony concerning the nature or extent of plaintiff’s injuries, the treatment he had received, whether the treatment had been proper, the cause or causes of plaintiff’s condition at the time he began treating him. His testimony warrants the conclusion that he found the tissue on and about the toes broken down and amputation of the toes necessary. In his opinion plaintiff had dry gangrene, which, he said, may be due to a bruise or to interference with circulation of the blood. Plaintiff’s injuries were severe and evidently complicated. Defendant advised amputation of the leg. Dr. Parker, called in consultation, was of opinion that plaintiff had a fighting chance to save the leg. The chance was taken, with the result already stated. The argument that the court or a jury may assume that hot water applications to the leg were so strongly indicated that it was negligence not to apply them is met by the argument of counsel for defendant that hot applications were clearly contra indicated as likely to induce suppuration, and" that the purpose of applying them when they were applied was to hasten the sloughing off of dead tissue and to establish a line of demarcation between good and bad tissue. There is no opinion evidence upon the subject. When defendant set the arm (it had been before 'that stretched out between sand bags), a hole was left in the plaster cast so that a sore might be reached and treated, indicating a bruised arm. It is not claimed that plaintiff has a flail arm.

If in any case nonexpert testimony of the injury, of the method of treatment adopted, and of the resulting conditions may be such evidence of negligent treatment by an attending surgeon as a jury may act upon - (see Wood v. Barker, 49 Mich. 295; Pelky v. Palmer, 109 Mich. 561), this case is not such an one. And we have found, and our attention has been directed to, no testimony warranting the inference that the disabled arm or the crippled foot resulted from improper surgical treatment.

The judgment is affirmed.

Carpenter, G-raijt, Blair, and Montgomery, JJ., concurred.