Rasmussen v. Shickle

WILLIS, J.,

pro tem.

This is an appeal from a judgment of nonsuit in an action for malpractice against a physician. Appellant claims errors in granting motion for nonsuit and in sustaining objection to the competency of an expert witness to give his opinion of respondent’s treatment of his patient.

Respondent was employed by appellant to reduce oblique fractures of both bones of the leg and to treat the case until healing was accomplished. It is alleged and shown by evidence that some three weeks after the bones had been set respondent massaged the leg and manipulated the foot and anide, and that immediately thereafter appellant experienced a severe tearing sensation of pain in the leg, of which she complained to respondent. No X-ray photographs were taken of the fractured bones after such complaint until six weeks later, when such photographs were taken and revealed that the fractured bones were not in place and were ununited. An operation was performed, the bones scraped, reset with the aid of bone grafting and in due time the healing of the fractures and surgical wound was accomplished.

Appellant based her claim of malpractice on (1) respondent’s causing the broken bones to slip from their position as a result of the massaging and manipulation, and (2) his failure to have X-ray photographs taken or to use ordinary care and skill in determining the fact that the fractured bones were not in proper position.

Exclusive of the opinion of an expert witness, Dr. Ellis Jones, called by appellant, there is in the record of the evidence no proof of negligence on the part of respondent upon which the charge of malpractice may be predicated. Appellant contends that the opinion of Dr. Jones was sufficient to establish a

prima facie

case so as to render the motion for nonsuit ungrounded under the familiar rules governing trial courts in considering and determining such motions. Reduced to its essentials for the purpose of its con

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sideration herein in connection with the answer thereto, the question propounded to the expert is as follows: “Is it proper practice in this locality to allow the patient to remain in bed for a period of six weeks following that date [of massaging and complaint of pain of tearing apart] without taking X-rays or using a fluoroscope to determine the condition of the break at that time?” To which the following answer is given: “Well, I can only say that I don’t know the conditions, all the conditions, in that situation. I can only say that that would not be proper practice if it was known that the fracture had been disturbed. Patients with this type of fracture are in pain constantly. The interpretation as to what caused the pain must be left to the judgment of the doctor.”