Scott v. E. J. Deas Co.

REYNOLDS, J.

OPINION

In the brief of defendants the only defense stressed is that plaintiff refused to take the medical or surgical treatment suggested by which he might be restored to permanent health. It is contended that his refusal to take such treatment is so unreasonable as to debar him from compensation during the period of his refusal.

The surgeons sworn as witnesses in the case agree that the treatment suggested by Doctor Thomas Ragan and tendered to plaintiff would be beneficial and without danger to his life or health, but none of the doctors could say with certainty that such treatment would result in a cure.

Doctor Ragan testified (Evidence, page 37):

“Q. Now, doctor, what have you to say with reference to the treatment or permanency of that condition, and as to how long it will take to cure it?

“A. Well, if that had been properly mobilized at first, I think that he would have been perfectly well and free from pain without deformity; in other words, the new position would have been firmly fixed and painless in six months. He would have no more trouble and (be) just as he was before.

“Q. At this time, what are the probabilities and possibilities of the plaintiff receiving treatment and recovering?

“A. Well, if he still has páin, I think it ought to be mobilized even yet, either having a satisfactory jacket or a plaster put on him, including both hips and that part of the spine, and he Would get well.

“Q. Now if that was done, doctor, properly, how long do you think it would take this man to get all right?

“A. Well, I think he would have—it would possibly have to be removed a time or two—but in three or four months time I do not think he would have any great pain.

“Q. Now, doctor, if that treatment was given, and this plaintiff took that treatment, how long do you think it would be until he would be able to do hard manual labor again?

“A. Well, he would have a stiff back tó a certain extent. There would be a mobility in certain movements, but he could get along pretty well.

(Page 51)

“Q. Would you guarantee, doctor, that if this man would follow your instructions, and take all the precaution that you give him and say that he will be just in as normal a condition after you have treated him for a year as he was the day before the accident occurred?

“A. I certainly would not give a guarantee of that kind.

“Q. Then it is all problematical with you, more or less, when you say that you can cure him?

“A. Well, the reasoning leads to- certain conclusions.

(Page 52)

“Q. Now, doctor, in all seriousness, you don’t think that this man with any kind of treatment will ever be in his normal condition, that he was before the accident occurred?

“A. Well, we do not think that that vertebrae will get back, but it will adjust itself, and, in fact, a man may be flatfooted apd after a while it will get to where it don’t hurt him to walk, and by use it will ultimately become where it Won’t pain him any more.

(Page 53)

“Q. Doctor, you really, then, in your opinion—going back again—you think that in a year that the man would have no defect?

“A. Well, I would not guarantee it, but at the same time I believe that the man would be well within a year, but I would not guarantee it.

(Page 55)

“Q. Doctor, would you advise putting this man in a plaster of parís cast?

“A. I think I would try it.' I am not a dogmatic about that, but X think it would be helpful, and it would be all right to try it.

“Q. Now would it not be very questionable with that method-—-I mean by the results probable and rather doubtful, since that injury occurred on the 13th of January and this is the 28th day of April, and no steps like that taken at an earlier date.?

“A. I think something has been lost in not having it tried at an earlier date, but I think I would try it—I think with immobility he would not suffer pain when you get a stable condition, and I would try it,

- “Q. Now this is about the most that you could promise about that?

“A. Well, I do not know anything better to. do just now.”

Doctor C. H. Gassity testified (Evidence, page 16):

“Q. Doctor, what do you think about the permanency of this condition such as you find, and such that is disclosed by the X-ray examination?

“A. My judgment is that the adjustment of the sacro iliac joint would probably require from eighteen months to two years to get well, if it gets well at all. I believe that the proper treatment would be to definitely locate where that injury is caused, and it is somewhat out of line and dislocated, which has not been reduced, and get it in its proper position and hold it there and we would get a recovery; where there is a fracture and it is placed back in position and held in position where they are not redislocated we get very good results, and I think that this stretching or injury here to the sacro iliac joint, that he should be put in a plaster of paris cast, and we might expect a cure in from about four to six months’ time; often a man walks around who is injured, and it is hard to get good results by those bones sliding against each other and producing inflammation, and adds to this dislocation and separation, and it inflames the joint and the bone surface there.

“Q. Well, doctor, what about the tilting of the vertebrae and as to the remedy for that?

“A. Well, I doubt now there is a remedy for it.

(Page 33)

“Q. Now, doctor, from the X-ray examination , and the fusion of the transverse process, of the fifth lumbar with the sacrum on the right, do you think there could be a normal adjustment made there of that fusion of the transverse process?

“A. There could not be without a major operation, as the surgeon would have to go in there and chisel that loose.

“Q.- Well, doctor, what per cent of mortality do you think this would be with an operation of that kind?

“A. What per cent?

“Q. Yes, what per cent of fatalities do you think there would be in operations of that kind going around the spinal column there?

“A. Well, the per cent of death rate in operations of that character in and around the cord in a great many cases it is not so high, but whether the man would get one hundred per cent function is a serious question. You know that operations are not always successful.

“Q. Doctor, with this fusion of the transverse process of the fifth lumbar with the sacrum on the right, what would likely be the permanency or not of that condition?

“A. Well, that will in all possibility be absolutely permanent.

“Q. Now what effect would you say that would have upon his ability to move and handle objects?

“A. Well, that would decrease the movability of the lower end of the spine and interfere with the free movement forwards, sideways or backwards.

“Q. Now, doctor, assuming that this man got his lick as explained to you a while ago—and has not done any work since—this was January 13, in January of this yéar, and that he has lost fifteen or twenty pounds in weight, what do you think of the probable outcome of his condition, his injury?

“A. Well, as regards' the fusion of those two bones, I think that this is a permanent injury, and as regards the sacro iliac separation, as I stated before, the permanency of that depends upon whether or not he was given proper treatment at the beginning; in other words, if put in a plaster of paris cast for as much as two months’ time, and still there is a separation there, then I would say he is permanently injured. if he had no such treatment as I have been talking about and, the sacro iliac joint is separated, I would say that the time for giving rational treatment is pretty well past.”

Prom this evidence it is clear that the doctors who testified in this case disagree as to the extent of the plaintiff’s injury. Doctor Cassity holds that to correct the injury would require a major operation; that the surgeon would have to get in there and chisel that loose. Doctor Ragan and Doctor Crain think plaintiff’s condition congenital and in no way caused by the accident. Under any condition the plaintiff, in order to receive the benefit of the treatment tendered by defendants, would have to undergo a serious treatment by which he would have to remain in a jacket or plaster of paris cast for from three to twelve months and that at best the treatment would be an experiment.

Plaintiff, as soon as he was hurt— January 13, 1925—was placed under the treatment of Doctor Williams, physician for the defendant, and took all the treatment suggested by him. We do not think plaintiff’s refusal to undergo the additional treatment tendered him was so unreasonable as to deprive him of the compensation he is entitled to under the evidence adduced on the trial.

Under the authority of Reeves vs. Dietz, et al., 1 La. App. 501.

For these reasons the judgment of the lower court is affirmed.