The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the plaintiff, Ulman Paris, against the defendant, A. L. Crittenden, a physician, for malpractice.
Plaintiff alleged in his petition that defendant is a practicing physician and surgeon residing in the city of Wichita; that on the 17th day of January, 1933, the plaintiff was sixty years of age, in. good health and sound physical condition, and was employed as a cigar salesman, making from $80 to $100 per month. On said date he slipped upon some ice on the outside stairs of the apartment house where he was living, causing him to fall and fracture the humerus bone of the right arm about five or six inches below the shoulder joint. He was taken to the Wesley Hospital in Wichita, and the defendant was called to treat the fracture. Defendant treated the fracture at the hospital for twenty-one days, when the plaintiff was discharged from the hospital and went to the home where he was then living, in the city of Wichita, and defendant continued to treat the injured arm for a period of four months thereafter.
It is alleged that defendant was guilty of negligence in treating the arm in the following particulars: He directed and permitted this plaintiff to be placed in a bed in the hospital with the casters at the foot of the bed removed so that the plaintiff was in a slanting position, with his head and shoulders much higher than the rest of his body. On account of such position in the bed, he constantly slipped down, and in moving him back up in the bed the fibers at the union of the bones would break so that the pieces of the bones did not knit, and such treatment caused a callus to form at the broken ends of the bone and prevented the proper knitting of the bone.
It is further alleged that defendant negligently failed to place the arm and shoulder and the upper part of the body in a cast after bringing the bones together, in order to keep it in an immovable position, and give the broken pieces of the bone a chance to knit and [298]*298join. Defendant also negligently would flex the upper part of the arm and permit it to be flexed when the same should have, by proper treatment, been kept in a rigid position, and by so doing the fibers did not knit and could not knit permanently. On account of such negligence the points of the bones failed to knit, and plaintiff as a result has lost the use of his' right arm; that had it not been for the negligence of the defendant in treating the arm, and if the arm had been treated in the proper manner, as alleged, the bones in said arm should and would have united in about five weeks, but no proper splints were placed upon the arm, no cast was placed upon the outside of the arm, shoulder and upper part of the body so that the broken bone could have been kept rigid and permitted to unite. The defendant also negligently did not examine the arm properly and did not use X rays, as he should have done at proper times to ascertain whether the bone was knitting as a result of his treatment.
On account of the negligence of defendant in treating the fracture the plaintiff suffered great pain and anguish, for which he claims damages in the sum of $1,500. Plaintiff has been unable to work for a period of twenty months, and has therefore sustained damages for loss of time of one year and eight months, to his damage in the sum of $1,800. He was compelled to pay or obligate himself to pay the sum of about $200 for hospital fees and expenses. He has also been permanently injured in that he has lost the use of his right arm for almost all purposes, and such injury will be permanent, to his further damage in the sum of $6,000. Plaintiff prays for judgment against defendant for tire sum of $9,500 and costs.
The defendant, Crittenden, answered that he was not guilty of any negligence in the treatment of the plaintiff, and especially denied that any injury which the plaintiff received, or any damages arising therefrom, are in any manner the result of any act of omission or commission on the part of defendant. Defendant alleged that on the 3d day of January, 1934, the plaintiff, in consideration of the payment to him of $350, executed a release to Charles and Mollie Kleinheins (owners of the apartment), releasing them from any and all actions, causes of action, damages or demands of whatsoever nature in any manner arising, or to grow out of any and all accidents or matters, and especially the said accident which occurred to the plaintiff on or about the 17th day of January, 1933.
To this the plaintiff replied that on the 17th day of August, 1933, the plaintiff filed an action for damages against Charles and Mollie [299]*299Kleinheins, for injuries received when he fell down the steps of an apartment building owned by them; that they denied any liability for said injuries so received, and have ever since denied it; that the $350 paid to plaintiff in that case was done in compromise of the action, not because of any liability on behalf of the Kleinheins. Plaintiff alleged that there was no negligence in behalf of Charles and Mollie Kleinheins, and no legal liability attached to them for the injuries so received and that he dismissed the case with prejudice to any future action. In that case the defendants alleged that the nature of the steps down which plaintiff fell was such that such injuries were the result of his own acts or carelessness and negligence, and the direct cause of the injuries he sustained; that the steps were properly constructed, and were in the same condition as to construction at the time of the accident as they were when the plaintiff rented the property, with full knowledge of the condition of the steps; that plaintiff had exclusive control of the occupancy of the apartment and of the steps in question and that the plaintiff was guilty of contributory negligence.
The court on the motion for judgment held that judgment against the defendant, Crittenden, should not be allowed and dismissed the case with prejudice at the costs of the plaintiff.
On the facts alleged, the court held the negligence of the physician was really the negligence of the Kleinheins, and that they had been released when the consideration of $350 was paid and accepted by Paris. The case of Keown v. Young, 129 Kan. 563, 283 Pac. 511, is regarded by the court as presenting substantially the facts and principles involved here. As a general rule the plaintiff might have recovered from the original wrongdoer for the negligence of the physician in the treatment of the injury, providing the physician had been selected with care. The law regards the negligence of the person who causes the original injury as the proximate cause of damages flowing from the negligence of the physician and holds him liable therefor. Being liable for the damage, Charles and Mollie Kleinheins were at liberty to compromise and settle, and plaintiff did settle with them for every demand growing out of the accident of January 17, 1933, and accepted the consideration of $350 agreed upon. If plaintiff had asked for and had obtained a settlement of the damages, the action against the doctor for malpractice would not lie. The damages sought certainly grew out of the accident of January 17, 1933, when plaintiff fell on the back stairway of the [300]*300place where he was living. The case of Keown v. Young and the authorities so fully examined, and results-reached, settles the questions involved and has determined where the weight of authority is.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the plaintiff, Ulman Paris, against the defendant, A. L. Crittenden, a physician, for malpractice.
Plaintiff alleged in his petition that defendant is a practicing physician and surgeon residing in the city of Wichita; that on the 17th day of January, 1933, the plaintiff was sixty years of age, in. good health and sound physical condition, and was employed as a cigar salesman, making from $80 to $100 per month. On said date he slipped upon some ice on the outside stairs of the apartment house where he was living, causing him to fall and fracture the humerus bone of the right arm about five or six inches below the shoulder joint. He was taken to the Wesley Hospital in Wichita, and the defendant was called to treat the fracture. Defendant treated the fracture at the hospital for twenty-one days, when the plaintiff was discharged from the hospital and went to the home where he was then living, in the city of Wichita, and defendant continued to treat the injured arm for a period of four months thereafter.
It is alleged that defendant was guilty of negligence in treating the arm in the following particulars: He directed and permitted this plaintiff to be placed in a bed in the hospital with the casters at the foot of the bed removed so that the plaintiff was in a slanting position, with his head and shoulders much higher than the rest of his body. On account of such position in the bed, he constantly slipped down, and in moving him back up in the bed the fibers at the union of the bones would break so that the pieces of the bones did not knit, and such treatment caused a callus to form at the broken ends of the bone and prevented the proper knitting of the bone.
It is further alleged that defendant negligently failed to place the arm and shoulder and the upper part of the body in a cast after bringing the bones together, in order to keep it in an immovable position, and give the broken pieces of the bone a chance to knit and [298]*298join. Defendant also negligently would flex the upper part of the arm and permit it to be flexed when the same should have, by proper treatment, been kept in a rigid position, and by so doing the fibers did not knit and could not knit permanently. On account of such negligence the points of the bones failed to knit, and plaintiff as a result has lost the use of his' right arm; that had it not been for the negligence of the defendant in treating the arm, and if the arm had been treated in the proper manner, as alleged, the bones in said arm should and would have united in about five weeks, but no proper splints were placed upon the arm, no cast was placed upon the outside of the arm, shoulder and upper part of the body so that the broken bone could have been kept rigid and permitted to unite. The defendant also negligently did not examine the arm properly and did not use X rays, as he should have done at proper times to ascertain whether the bone was knitting as a result of his treatment.
On account of the negligence of defendant in treating the fracture the plaintiff suffered great pain and anguish, for which he claims damages in the sum of $1,500. Plaintiff has been unable to work for a period of twenty months, and has therefore sustained damages for loss of time of one year and eight months, to his damage in the sum of $1,800. He was compelled to pay or obligate himself to pay the sum of about $200 for hospital fees and expenses. He has also been permanently injured in that he has lost the use of his right arm for almost all purposes, and such injury will be permanent, to his further damage in the sum of $6,000. Plaintiff prays for judgment against defendant for tire sum of $9,500 and costs.
The defendant, Crittenden, answered that he was not guilty of any negligence in the treatment of the plaintiff, and especially denied that any injury which the plaintiff received, or any damages arising therefrom, are in any manner the result of any act of omission or commission on the part of defendant. Defendant alleged that on the 3d day of January, 1934, the plaintiff, in consideration of the payment to him of $350, executed a release to Charles and Mollie Kleinheins (owners of the apartment), releasing them from any and all actions, causes of action, damages or demands of whatsoever nature in any manner arising, or to grow out of any and all accidents or matters, and especially the said accident which occurred to the plaintiff on or about the 17th day of January, 1933.
To this the plaintiff replied that on the 17th day of August, 1933, the plaintiff filed an action for damages against Charles and Mollie [299]*299Kleinheins, for injuries received when he fell down the steps of an apartment building owned by them; that they denied any liability for said injuries so received, and have ever since denied it; that the $350 paid to plaintiff in that case was done in compromise of the action, not because of any liability on behalf of the Kleinheins. Plaintiff alleged that there was no negligence in behalf of Charles and Mollie Kleinheins, and no legal liability attached to them for the injuries so received and that he dismissed the case with prejudice to any future action. In that case the defendants alleged that the nature of the steps down which plaintiff fell was such that such injuries were the result of his own acts or carelessness and negligence, and the direct cause of the injuries he sustained; that the steps were properly constructed, and were in the same condition as to construction at the time of the accident as they were when the plaintiff rented the property, with full knowledge of the condition of the steps; that plaintiff had exclusive control of the occupancy of the apartment and of the steps in question and that the plaintiff was guilty of contributory negligence.
The court on the motion for judgment held that judgment against the defendant, Crittenden, should not be allowed and dismissed the case with prejudice at the costs of the plaintiff.
On the facts alleged, the court held the negligence of the physician was really the negligence of the Kleinheins, and that they had been released when the consideration of $350 was paid and accepted by Paris. The case of Keown v. Young, 129 Kan. 563, 283 Pac. 511, is regarded by the court as presenting substantially the facts and principles involved here. As a general rule the plaintiff might have recovered from the original wrongdoer for the negligence of the physician in the treatment of the injury, providing the physician had been selected with care. The law regards the negligence of the person who causes the original injury as the proximate cause of damages flowing from the negligence of the physician and holds him liable therefor. Being liable for the damage, Charles and Mollie Kleinheins were at liberty to compromise and settle, and plaintiff did settle with them for every demand growing out of the accident of January 17, 1933, and accepted the consideration of $350 agreed upon. If plaintiff had asked for and had obtained a settlement of the damages, the action against the doctor for malpractice would not lie. The damages sought certainly grew out of the accident of January 17, 1933, when plaintiff fell on the back stairway of the [300]*300place where he was living. The case of Keown v. Young and the authorities so fully examined, and results-reached, settles the questions involved and has determined where the weight of authority is. In that case it was recognized that there was a division of judicial opinion on the question, and this state has lined up on the side making the original wrongdoer liable as being the proximate cause and giving him power to release the physician who may have been negligent in treating the case. The court decided that—
“When one sustains personal injuries because of the negligence of another and uses due care in selecting a physician to treat his injuries and in following the advice and instructions of the physician throughout the treatment, and a poor result is obtained because of the negligence of the physician, the law regards the negligence of the one who caused the original injury as the proximate cause of the damages flowing from the negligence of the physician and holds him liable therefor.
“When one sustains personal injuries by the negligence of another and settles his claim for damages against such party, and executes to him a release and discharge 'of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injuries,’ such release covers and includes a claim for injuries resulting from the negligence of a physician called by the injured party to treat his injuries when there is no claim of a lack of due care in selecting a physician or in following his advice with respect to the treatment.” (Syl. HIT 2, 3.)
Following this authority the trial court ruled that the release was valid and binding, that the physician was acquitted of his negligence and is not liable for such negligence in the treatment of the case.
The judgment is affirmed.