#### GILBERT NESS, Respondent, v. T. N. YEOMANS, Appellant.

(234 N. W. 75.)

*369Opinion filed January 2, 1931.

Rehearing denied January 21, 1931.

*George A. McGee*and *I. H. Breaw,*for appellant.

*370
      *John J. Garrity, E. R. Sinkler*and *G. Brekke,*for respondent.

*371Bure, L

The defendant, a physician and surgeon, is charged with malpractice arising from the setting and treatment of a broken arm. The jury found for the plaintiff and, the court having denied a motion for judgment notwithstanding the verdict or for a new trial, the defendant appeals.

There are 87 assignments of errors, 66 of which deal with rulings on the admission of testimony, 17 with reference to the charge given to the jury and the remainder with rulings on the motion for a new trial, etc. In addition there is a specific allegation that the evidence is insufficient to sustain the verdict.

On the 17th of November, 1929, the plaintiff suffered a fracture of the ulna of the right arm at a point about one third of the distance from the wrist to the elbow. Two days thereafter, while he was in the hospital in Minot, the defendant was called to treat him, and set the bone giving some subsequent treatment. Plaintiff’s claim is the bone was not properly set and that the proper subsequent treatment was not given. It is the claim of the defendant that under all of the circumstances of the case the union of the bone is a good union, and that if the plaintiff suffered from stiffness of the muscles and tendons *372it was because of bis failure to follow instructions given him by tbe defendant and bis failure to come for treatment.

Many of tbe objections made by tbe defendant during tbe introduction of testimony center around tbe testimony given by one L. M. Ellithorpe. Tbe plaintiff, in order to prove bis case introduced certain X-ray pictures, some of wbicb were taken by tbis witness.

As foundation for tbe introduction of these pictures the witness testified that be was a duly and regularly licensed chiropractic under the laws of this state, with several years’ practice and with six years’ experience in tbe making of X-ray pictures. He showed that be bad made a thorough study of human anatomy for about two years while at school, and that tbis was part of bis training; that be bad taken several hundred of these pictures and knew tbe contour, position and action of tbe bones in tbe human body. He showed tbe position in which tbe arm was placed at tbe time of tbe taking of tbe X-ray, and stated tbe picture identified was a true and correct picture of tbe arm at tbe time tbe picture was taken. He was then permitted to testify as to wbat tbe picture showed — tbe break in tbe bone, its position and tbe nature of tbe union. To all of tbis tbe defendant interposed objections, tbe theory being that because tbe witness was a chiropractor, pursuing a system of treatment for human ills different from that pursued by tbe defendant, be was not competent to give expert testimony.

There was no error in permitting tbe witness to testify as to tbe taking of tbe X-ray photographs and wbat these showed. Tbe fact that be was a chiropractic was a mere incident except so far as it showed bis knowledge and study of human anatomy. Tbe names, number and position of tbe bones in tbe human body are tbe same, whether one is a regular physician, a chiropractic or a laic. It is not tbe school wbicb be follows; but bis knowledge, experience and special training wbicb qualifies tbe witness to testify as an expert in such cases. A chiropractor may testify as to matters in wbicb be is qualified to speak so long as be is not attempting to testify in regard to a school of treatment separate and distinct from bis. He could not testify as to tbe methods and practices of tbis other school without showing bis qualifications therefor. He was not so testifying. In tbe matter before tbe court it was immaterial that be was a chiroprac*373tor. If he had studied human anatomy so as to acquire special knowledge; if he knew how to take X-ray photographs so as to give correct representations; if he knew how to read and interpret them then he was qualified to speak. The question of the qualification of the witness is primarily one for the trial court. A chiropractor may testify and interpret an X-ray picture upon showing practice therein and professional study. See Ladlie v. American Glycerine Co. 115 Kan. 507, 223 Pac. 272, 273. The weight given his testimony is for the jury. There was no error in permitting his testimony on such subjects in this case.

Owing to the quality of the evidence introduced, as shown by the record, it is not necessary for us to pass upon other assignments of error in the introduction of testimony nor the allegations of error with reference to the charge given by the court or failure to charge.

According to the testimony of the plaintiff he was fifty-five years of age at the time of the accident. He broke his arm November 17, 1929. Two days thereafter he came to the hospital and the defendant commenced treatment. Plaintiff says the defendant examined the arm through an X-ray machine, attempted to set the bone, put on a cast with the assistance of one of the nurses, and that the defendant never examined it again through the X-ray; that the nurse put the arm in a sling with the palm of the hand up; that he returned in about four weeks, for treatment and this time the defendant opened the cast, drew it tighter and plaintiff went home for another two weeks; when he came back defendant was absent and he consulted Hr. 0; later he went to another doctor and did not go back to defendant because he thought “he couldn’t do me anything when it wasn’t set right.” He says that at the end of eight weeks the defendant told him to let the arm drop down to flex the joints and to “start to work with it but I was not able to do that;” and the other doctor told him to do the same, but it hurt too much; that he could turn his arm in a certain way but not in other ways; that Dr. Cameron took an X-ray and later Dr. Devine and that during the summer of 1929 Dr. Ellithorpe the chiropractor took X-ray pictures. It seems also that just about the time of the trial further X-rays were taken by Dr. Erenfeld and Dr. Knapp in the presence of the defendant. He also testified in regard to his pain, suffering and swelling. He says the defendant told me “I had *374just as good an arm as I ever had.” It is his claim that the defendant did not examine the bone by X-ray after the cast and bandages were put on. Later he testified his second visit to the defendant was four or five days after the arm was set. He admits the defendant told him unless he kept moving the fingers they would get stiff and that other doctors whom he employed thereafter, Drs. Cameron,. Devine and Stone told him the same thing; that he did not want to go back to the defendant because he massaged his fingers so that they hurt; he was not able to stand the pain; that the doctor tried to get motion in the arm and the reason he did not go back to him was because he was afraid of the pain. The plaintiff furnished no expert testimony, being content to depend upon the cross-examination of the expert witnesses furnished by the defendant, and the examination of the X-ray pictures taken. These X-ray pictures were taken from different angles and at different distances. All experts who testified with reference thereto stated that the value of the picture depended largely upon the angle with which the picture was taken, the distance from the machine and other factors. Taking all of this into consideration however it is apparent that the apposition of the broken bone was not quite perfect. Either the broken parts were not set directly opposite each other or had slipped, but at the time the pictures were taken there was union; with a portion of a bone slipped past the other part to an extent that was noticeable on the picture. There is no testimony in the record which shows that this was caused by the defendant, or that it could have been avoided.

The defendant narrated the method which he employed for the setting of the bone and for the prevention of atrophy of the muscles and stiffness of the joints. He testified that at the time he set the bone he made use of the fluoroscope, that the light was placed over the part of the arm he desired to examine and that while it was in this position he could see the bone, tissues and muscles with perfect plainness. The arm was under the fluoroscope all of the time until the operation was completed; that it was only a matter of a few minutes to thus attend to the setting of the bone; that he had the arm placed in a sling, midway between pronation and supination; that this was the proper way; that he gave the plaintiff instructions to return in a few days for examination; that he did return and that after attending to him this *375time he gave him instructions to return again, but that he did not return until the latter part of January or the first of February. There is a dispute of one visit between the parties; and also as to tbe position of tbe arm in the sling; but the defendant told how he gave plaintiff instructions for gentle movement of bis fingers, and frequent massage and manipulation, but tbat when be attempted to thus treat bim tbe plaintiff protested because of pain and refused to come back for further treatment.

In addition to tbe defendant four medical men testified as expert witnesses. Tbe X-ray pictures introduced in evidence were submitted to each, and tbe examination of tbe picture was part of tbe foundation for bis testimony. While all of these were produced as witnesses by tbe defendant yet two of them were doctors employed by tbe plaintiff himself for treatment after be bad ceased to consult tbe defendant. All of these expert witnesses testified tbat tbe union of tbe bones was a good union, tbat tbe treatment given by tbe defendant was tbe proper treatment, tbat tbe stiffness of muscles, and loss of motion if any, came from tbe lack of exercise and that tbe longer this lack of exercise continued, tbe greater would be tbe difficulty in restoring motion and tbe greater tbe amount of pain suffered. On cross-examination an attempt was made to show tbat some if not most of tbe pain came from tbe effect of tbe projecting portion of tbe bones on tbe surrounding nerves. Tbe experts deny this. Tbe plaintiff’s contention is tbat tbe lack of perfect apposition as well as tbe dispute regarding position of arm in tbe sling, and tbat a more or less ragged edge of bone might irritate tbe muscles and nerves, were facts for tbe jury to use in determining negligence. Tbe plaintiff himself testified that tbe attempt at massage, tbe exercise of tbe arm, tbe treatment given by tbe doctors gave bim great pain, in fact it is evident tbat one reason why be did not continue the exercise was because of tbe pain which it caused.

There is some dispute between tbe parties to this action as to tbe way in which tbe defendant set tbe bone and tbe extent of tbe use of what the plaintiff called tbe X-ray and tbe defendant said was tbe fluoroscope. There is no expert testimony whatsoever showing negligence in tbe setting of tbe bone. Plaintiff claimed one of these expert witnesses, whom be bad consulted prior to tbe examination of the action, bad told bim bis arm was ruined but this doctor denied this *376statement. This however, would merely tend to affect the doctor’s credibility. In the cross-examination of the experts time was devoted to the attempt to show.that the defendant should have made an X-ray examination of. the arm on the second and third visit of the plaintiff. It is admitted he did not do so and it is the theory that if he had done so the fact that one portion of the broken bone projected past the other would have been detected and could have been remedied, and failure to do so was properly a matter for the jury to determine whether it was negligence. Even if this were so the fact remains that all of the expert testimony shows a good union and correct practice. This is a matter peculiarly of good practice and on this feature expert testimony controls. See Gallagher v. Kermott, 56 N. D. 176, 216 N. W. 569. It is not like the case of Whitson v. Hillis, 55 N. D. 797, 215 N. W. 480, where negligence could be determined without resort to expert testimony, or cases where the treatment given or neglected has become so much a matter of common knowledge that it ceases to require expert testimony. In Axford v. Gaines, 50 N. D. 341, 346, 195 N. W. 555, 557, we set forth the rule regarding expert testimony and showed such was not necessarily binding on the jury; but in this case there was contradictory testimony from empirics which, together with admitted facts in the case, justified rejection of the expert testimony.

It must be remembered the defendant is not responsible for the injury' — he did not cause the fracture. He is not responsible for the result of his treatment unless the result be caused by his negligence. There is nothing shown in this case which was not consistent with good practice neither is there anything in good practice which the defendant did not do. The burden of proof is on the plaintiff to show that the proper method was not employed, that the proper treatment was not given and that the doctor violated some of the rules of good practice so that the result complained of necessarily came from this violation of good practice. According to all of the testimony in the case as to what is the standard of conduct for the defendant to follow, he followed. Taking the plaintiff’s own testimony he does not contradict this. It is true he says the doctor looked through the X-ray but once when he was setting the bone but the undisputed evidence shows that the arm was at the machine all of the time the bone was being set and that the process required but a few moments of time. The doctor shows that *377during all this time lie had the arm under inspection. The doctor was not an insurer of the result. All the expert witnesses testify that though a portion of one of the pieces of bone had slipped past the other portion nevertheless in the course of time this was straightened by nature through the formation of callous and the process of union; that the work which was done was a good piece of work under all the circumstances; that unless the patient had his arm massaged, joints flexed, and muscles exercised there would be loss of power; that the longer this was delayed the more pain there would be in beginning such operations.

It is clear the evidence is insufficient to justify the verdict. As stated in Gallagher v. Kermott, 56 N. D. 176, 216 N. W. 569, supra, “What did the defendant do that consistently with good practice, he should not have done?” What did he omit to do? It is possible the plaintiff may secure expert testimony to contradict what has been shown by the defendant, therefore the action will not be dismissed, but the order denying new trial will be reversed and the case remanded' for a new trial.

Burke, Oh. J., and Nuessle, Birdzell, and Christianson, JJ., concur.