Tvedt v. Haugen

This action was pleaded and tried as a malpractice suit. The trial court told the jury that it was a malpractice action and instructed them accordingly. The testimony of the witnesses is undisputed. I differ with my associates as to the conclusions to be drawn from this testimony and the result arrived at under the law applicable to the case.

The only expert witness was Dr. Fortin who operated on the plaintiff. He testified at length, upon direct examination as a witness for the plaintiff, and was cross-examined extensively by the defendant.

When Dr. Fortin performed the operation he found that the fibula had united and that there was a nonunion of the tibia. He testified that the normal healing period for a fracture of both bones of the leg was from six to eight weeks. He examined the three X-ray pictures taken by the defendant on April 2, June 2, and during the first part of July. The first picture showed the broken bones in apposition with some contact. He approved of the early treatment given by the defendant, including the application of a cast and instructions to the patient to stay in bed for thirty days. He said that the cast should be permitted to remain on from six to eight weeks. The cast was left on from April 2 to June 2, when the second pictures were taken. He testified it was then proper to remove the cast in order to make an examination of the progress of the healing process. With regard to the second picture he testified that it showed little callus. He testified regarding the treatment to be given at that time and said that he would immobilize the leg longer and instruct the patient to walk around with the aid of crutches bearing some weight on the injured leg.

At the time the second picture was taken the defendant removed the cast, made an examination and then immobilized the leg further by applying half of the cast and binding the leg up again by winding gauze around it. Thus it appears that the treatment given by the defendant was in accordance with the practice approved of by Dr. Fortin.

Dr. Fortin was shown the X-ray picture taken during the first part of July over three months after the injury. This picture indicated that nature had not thrown down callus in the process of healing the fractured tibia, although the fibula appeared to have united. When asked what should be done, he testified, "There is no set course for that. You might treat the leg without a cast or you might put another cast on it or splint, or you might operate and put new bone in there and try to make nature throw down callus. There is no one set way of doing that."

After this witness had had his attention called to the testimony of the plaintiff to the effect that plaintiff had indicated to the defendant that his leg was pliable at the fracture, Dr. Fortin said, "At that time we know there is a delayed union or developing nonunion and that, of course, with a bone bending a man cannot put very much weight on it. He can put some weight on it with a splint on the leg or as he testified yesterday with an ace bandage immobilizing that, and with light weight bearing, it would be perfectly all right if in his judgment that would be enough to hold it." Dr. Fortin does not criticize the treatment given or indicate that the defendant should have done anything other than what he did in the treatment of the injury. He further testified that the point at which the fractures occurred is known as a nonunion area and that while nonunions are rare, the point at which these fractures occurred is one of the places where nonunions are most frequent. After testifying that he thought the treatment was proper, Dr. Fortin said, "I cannot see why that did not throw down callus and unite into a bony union."

Thus it appears from the testimony of Dr. Fortin that the practice followed by the defendant was proper. Despite that fact, the plaintiff on this appeal contends that there is evidence enough in this record to support the verdict of the jury. He cites the case of Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480. In that case the defendant failed to discover a fracture of the leg during a period of two months, but treated his patient for a fracture that did not exist. The doctor suggested that an X-ray picture was not necessary and none was taken. No physician other than the defendant testified in the case. This court held that despite the absence of medical testimony in behalf of the plaintiff, the evidence was sufficient to sustain a verdict of the jury and said, "that the failure to employ available and well-known means of diagnosis, coupled with the failure to locate a known fracture and the continued treatment for a fracture at a place where there was no fracture, is evidence of negligence." That case recognizes the general rule that expert testimony is necessary to establish the failure of a physician to exercise such reasonable and ordinary care, diligence, and skill in treating a patient as are ordinarily exercised by physicians practicing in similar localities in the same general line of practice. Cases may arise in which the negligence or want of skill of the physician is so plain that it is readily discernible by the layman. In such cases it is sometimes permissible to dispense with expert testimony. Such a case is Whitson v. Hillis, supra. In this case there is expert testimony given by the plaintiff's own witness which tends to establish that the practice of the defendant was proper and in accordance with approved medical standards.

We are now confronted with the query: may the verdict be sustained despite the expert testimony favorable to the defendant? This requires an examination of any evidence susceptible of being construed by the jury in favor of the plaintiff, for upon this appeal we must accept that version of the facts presented by the record which is most favorable to the plaintiff. Stoskoff v. Wickland, 49 N.D. 708, 193 N.W. 312; McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854. The evidence must be examined in the light of the rules applicable to cases of this kind. These rules, supported by an abundance of authority, are stated in McDonnell v. Monteith, supra, to be as follows: "First, the burden is on the plaintiff to establish by competent evidence actionable negligence on the part of the defendant and damages proximately resulting therefrom. . . . Next, a physician is required to exercise only such reasonable and ordinary care, diligence, and skill in treating his patient as are ordinarily possessed and exercised by physicians practicing in similar localities in the same general line of practice. . . . A patient cannot recover in an action against his physician for damages for malpractice if he has not conformed to all reasonable directions of such physician or if his conduct has contributed to the injury upon which the action is based. . . . In the absence of evidence to the contrary it will be presumed that a physician and surgeon in treating his patient exercised a reasonable degree of care and skill. . . . A physician is not liable for malpractice merely because of a bad result and is not an insurer of a correct diagnosis or correct treatment. . . . Where the proofs disclose that one of several proximate causes might have been responsible for the result complained of and the jury can only conjecture or speculate as to which was the cause of such result, a verdict for damages therefor cannot be sustained." (Periods denote omitted citations.)

Returning to a consideration of the record, it appears that the result was not what either the physician or the patient had expected or hoped for. Under the rules heretofore quoted a bad result does not establish liability of a physician for malpractice. Such a result is not of itself evidence of negligence and will not support a verdict. Brant v. Sweet Clinic,167 Wash. 166, 8 P.2d 972; Hair v. Sorenson, 215 Iowa 1229, 247 N.W. 651; Hanners v. Salmon, 216 Ky. 584, 288 S.W. 307, 26 N.C.C.A. 77. The doctrine of res ipsa loquitur has no application in a malpractice case and an unfortunate or bad result does not supply proof of negligence. Gallagher v. Kermott,56 N.D. 176, 216 N.W. 569.

It is unfortunate for the plaintiff that his leg did not heal. We cannot transform that misfortune into a liability on the part of the defendant without a proof that he is in some measure to blame for the result. Sympathy alone is not a substitute for evidence. There being no failure on the part of the defendant to properly treat the injury, no liability arises out of the treatment.

The plaintiff places great emphasis on the fact that when the cast was removed and the plaintiff demonstrated to the defendant that his leg was pliable, the defendant said that it was all right only that it would take more time. This statement is more in the nature of a prognosis than a diagnosis. According to Dr. Fortin's testimony the condition of the leg at this time would indicate a delayed union. There was still a possibility that the bones might properly unite. He said, "At times a bone doesn't grow together, as we occasionally see. If it has not grown together in a period of from three to six months we call it a delayed union, and anything over a period of six months we call it a nonunion." In Landoski v. Mueller, 193 Wis. 570, 214 N.W. 329, it was held that the fact that a physician was too optimistic in his prognosis could not be charged against him as an element of negligence. In the case before us it does not appear that any injury resulted to the plaintiff from the failure of the defendant to tell him that the condition of his leg at that time was due to a delayed union or that a nonunion might result. It does not appear that either the delayed union or nonunion was the result of anything the defendant did or did not do. The mere existence of either condition is not evidence of negligence or breach of duty on the part of the physician.

Among other allegations of the complaint the plaintiff sets forth, "That three months after plaintiff first treated the same, and after examining said broken leg, the defendant informed this plaintiff that the injured limb was coming along all right and was in good condition and that it was properly set and joined and was healing, thereby deceiving this plaintiff into continuing under the care and treatment of this defendant, when this defendant should have known if proper, regular, and careful examination and treatment had been given, that the said broken limb had not united and never had been correct."

As previously said, the plaintiff has wholly failed to sustain any allegations with regard to improper treatment, however, it does appear that about June 20 while the plaintiff was receiving treatment from the defendant, the defendant said that "the break was coming along fine and the callus was getting stronger" and that "it looked good." Again about the 12th of July the defendant told the plaintiff that his leg was coming fine. About September 17 the defendant examined plaintiff's leg through a fluoroscope. The plaintiff also looked through the fluoroscope and commented that he thought the bones were a little too far apart and asked the defendant what he thought of it. The defendant said that it was all right. In about two weeks the plaintiff consulted other doctors and was informed that the tibia had not formed a union. In about two days the plaintiff went back to the defendant's office and told him that these doctors had decided to operate. The defendant then advised the plaintiff to go to Dr. Fortin, which the plaintiff did on October 10.

The question now is whether the allegations of the complaint and the plaintiff's testimony to the effect that the defendant deceived him by informing him that his injured leg was healing properly when in fact it was not, is sufficient to sustain the verdict of the jury. This is not an action for deceit. It was tried as a malpractice action and the instructions of the court were based wholly upon the theory of malpractice. There is a dearth of authority on the question of whether the failure of a physician to truthfully inform the patient of his condition constitutes such a breach of duty as to make the physician liable in a malpractice suit. The case that points most strongly toward such liability is Lewis v. Dwinell, 84 Me. 497, 24 A. 945, wherein a physician was held liable for failure to advise his patient of the existence of a severe rupture of the perineum. In sustaining liability of the doctor the court said, "He either failed to discover the lesion while she was under his care during her sickness at and for some weeks after the birth of her last child, or, discovering it, concealed it from her."

On the other hand, cases may be found that deny the right of recovery in malpractice cases where the physician has misinformed the patient. In Netzel v. Todd, 24 Ohio App. 219, 157 N.E. 405, the court said, "We are of the opinion that the evidence did not disclose that there was any fraud committed which would give rise to a right of action independent of malpractice. It does not constitute a cause of action for a physician to make false representations that he has removed one of the patient's kidneys, where the physician is not guilty of any act of malpractice in failing to remove the kidney during an operation or in his treatment of the patient in connection therewith."

The case of Hedin v. Minneapolis Medical Surgical Institute,62 Minn. 146, 64 N.W. 158, 35 L.R.A. 417, 54 Am. St. Rep. 628, quoted in the majority opinion, was an action for deecit and not for malpractice. The plaintiff in that case sought to recover $500 paid for medical treatment and obtained from him "through false and fraudulent representations to him that certain injuries from which he was then suffering were curable, and that at the Institute they could and would cure him for that amount of money." The court states that "to sustain such an action it must be shown that a false representation of a material fact has been made, in ignorance relied upon, and that damage has ensued." The jury awarded the plaintiff a verdict for $500, being the amount that he had been fraudulently induced to pay. No damages were sought or awarded as a result of treatment given or omitted or statements made during the course of treatment. Both the nature of the action and the facts are wholly different from the case at bar.

If we assume that it is a breach of duty on the part of the physician to fail to inform or to misinform his patient as to his true condition, that assumption alone will not sustain the verdict. The plaintiff must not only prove such breach of duty, but must also prove that he has been damaged thereby before he can recover from the physician. Only those damages which flow from the breach of duty can be recovered. If there are no damages there can be no recovery. According to the testimony of Dr. Fortin, the normal healing period for an injury such as that sustained by the plaintiff is from six to eight weeks. If the bones are not grown together during the period of from three to six months it is called a delayed union, and after six months if the bones have not grown together it is called a nonunion. The inescapable implication of this testimony is that up to six months there is a possibility of obtaining a union although the bones have not grown together within the normal period. The operative method is resorted to in cases of nonunion. There is nothing in this record to indicate that any other procedure or method would or should have been resorted to during the period that the plaintiff was under the defendant's care or that the plaintiff would have sought the services of another had he been fully informed of the failure of his injury to properly heal. The fact that it did not heal and that he suffered pain, inconvenience, and loss of time from the injury does not constitute a basis of recovery for damages growing out of the failure of the doctor to inform him of the failure of the healing process. Whether damages resulted from the defendant's breach of duty is wholly speculative. Speculative damages are no more recoverable in malpractice cases than in other damage cases. "The universal and cardinal principle is that the person injured shall receive a compensation commensurate with his loss or injury, and no more." Sutherland, Damages, § 12. The whole record, when considered in the light most favorable to the plaintiff, is insufficient to warrant the jury in finding that the plaintiff suffered injury from any act of omission or commission of the defendant with relation to his duty as plaintiff's physician. The motion for judgment notwithstanding the verdict should have been granted.