
    Stoll v. Balazs, a Minor.
    (Decided January 14, 1929.)
    
      
      Messrs. Cook, McGoioan, Foote, Bushnell S Burgess, for plaintiff in error.
    
      Messrs. Cline & Patterson, for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county, and it is to reverse a judgment rendered in favor of the defendant in error, Harold Balazs, who was plaintiff below, in the sum of $20,-000, growing out of what is claimed to be malpractice.

It seems that the plaintiff is a minor, a young man about 17 or 18 years of age, who lived on a farm; that he was kicked by a horse in such a way that it caused a fracture of both the tibia and fibula bones of the left leg; that the plaintiff in error is a physician who was called to reduce the fracture and subsequently attend the patient. He attempted to reduce the fracture, ¿nd, I believe, used what is known as a pillow splint for reducing the swelling, and subsequently the leg was put into a plaster case. He at no time, at the inception of his employment, used an X-ray, although it is proper and common medical practice to use an X-ray in treating a fracture. It seems that a ligament or tendon got between the broken parts of the limb, which prevented a proper union of the bones, and it was afterwards learned that the bones had hot been properly placed close together so that there could be a union, and, when the X-ray was finally used, it showed an aperture of three-sixteenths to one-half of an inch between the ends of the bones, so that, of course, no union could take place. This resulted in an infection setting in and a sloughing off of the bone so that plates had to be used to bring tbe bones together that there could be a proper union, which resulted ultimately in a shortening of the left leg and a consequent permanently crippled condition.

There was evidence in this record by experts that it was the customary and usual practice to use X-rays in the reduction of fractures of limbs, and that, while the X-ray would not shoyy a ligament or tendon that had gotten between the bones, it would show that the bones had not been put properly together so that a union could result, and would have informed the operator that there was a space between the broken ends of the bones. There is evidence in the record to show that the process of ultimately curing the infection and getting the bones to unite was exceedingly painful, and caused the plaintiff excruciating agony. The young man will be permanently crippled and disabled, and will always have more or less of a lameness.

The jury brought in a verdict, as already stated, for $20,000, and many errors are claimed as to why this verdict should be set aside.

We have gone over this record, and do not find the complained of errors of sufficient importance to warrant a reversal of this judgment. We do think, however, that the verdict is excessive. We fear that the jury took into consideration the pain and suffering that this young man had to endure by reason of the kick of the horse, and that was no part and could be no part of a judgment that should be rendered against the attending physician, because he was in no way responsible for that.

From this whole record, we can come to no other conclusion than that the jury was justified in finding a verdict against the attending physician, and we think that the evidence is ample in the record that he did not use the nsnal and recognized methods of determining just how this boné conld be set. There is evidence in the record to show that, even after the plaster cast was placed over the leg, an X-ray picture could have been taken through that cast and it is in evidence that it was not until the damage had been done, as far as infection having taken place, that an X-ray was taken, which showed the situation that might have been avoided had this precaution been taken in the first instance.

We think, therefore, that the excessiveness of this judgment can be cured by a remittitur, and we order a remittitur of $5,000 in this verdict, leaving the same at $15,000, and, if the plaintiff accepts this remittitur, the judgment will be affirmed for $15,000. If, however, the plaintiff refuses to accept the remittitur, the judgment will be reversed on the ground that it is excessive.

Judgment accordingly.

Sullivan, P. J., aud Levine, J., concur.  