TRIAL AND ACQUITTAL 
OF 
JOHN E. HATHAWAY, M. D. 
OF WORCESTER, 
IN AN ACTION FOR 
ALLEGED MALPRACTICE, 
BEFORE THE SUPREME JUDICIAL COURT IN BOSTON, 
JANUARY 13, 18-57. 
Re-published from the Boston Medical and Surgical Journal. 
BOSTON: 
PRINTED BY DAVID CLAPP, 
Over 184 Washington Street. 
1S57. TRIAL FOR MALPRACTICE. 
Supreme Judicial Court. November Term, 1856. Augustus Volmuth 
versus John E. Hathaway. Action of Tort for alleged 
Malpractice. Ad damnum, $10,000. 
For the Plaintiff—H. W. Paine and L. Gray, Esqrs. 
For the Defendant—R. H. Dana, Jr. and VV. VV. YVinthrop, Esqrs. 
This was an action brought against a physician and surgeon of 
Worcester, Mass., to recover damages for alleged malpractice in the 
treatment of a fracture of the bones of the fore-arm. The trial, 
which took place in Boston, before his Honor Judge Merrick, 
commenced in the forenoon of January 13th, extended through that 
day and the next, and on the following morning was brought to a 
sudden conclusion, in a manner so striking and unusual in itself, as 
well as triumphant to the defendant, that the case has been invested 
with a peculiar interest, both to the profession and to the community. 
This was the first trial of the kind in this Commonwealth, since the 
enactment of the law of June, 1856, providing that parties may be 
witnesses. The clear and convincing statement of the defendant, 
as well as his admirable bearing on the stand, during a thorough 
examination and cross-examination of more than two hours, 
contributed in great part to the favorable and divisive result of 
the action. The material evidence in the case, as taken from the 
notes of the defendant’s counsel, was in substance as follows. 
Plaintiff’s Testimony. 
Augustus Volmuth (German).—Have lived six years in this 
country. Live in Boston—did live in Worcester. Am 23 years 
old. Did not know Dr. H. before accident. Was exercising and 
fell. Put my hands behind me and fell on them. Was taken to a 
house near by. Dr. H. came first. Dr. Kelly came when arm was 
set. Dr. H. came in twenty-five minutes or half an hour after 
bones broken. Arm not swollen any when Dr. H. came. He set 
arm, put it in a sling, and took me to boarding-house and put me 
in bed. They pulled on my arm, and Dr. H. put on two boards, 
shingles, one and a half inches wide, from elbow to ends of fingers. 
Thumb was all squeezed in—shingle went over thumb. In eight 
weeks or so, thumb all dried up and skin loose. Doctor cut off 4 
Trial for Malpractice. 
dry skin. Cat off skin at his office. lie put-cloth between wood 
and thumb. After nine weeks, he cut off end of one board, it 
hurt me so much. At first dressing, the bandage was as tight as 
he could put it on. Hand swelled to ends of fingers. Fingers 
twice as thick as usual. I suffered pain—not much—in fingers, as 
too tight. First felt pain in fingers on second day. Began to 
swell first day. On second night so much pain in fingers I couldn't 
stand it. I told doctor, and he said it made no odds—it was nothing 
—would be over in a few days. Doctor came first, second and 
third day, then told me to get up. Then he opened arm, took 
everything off, and looked at it, felt of it, and put on bandage, &c., 
as before. Gave me no particular directions. On fifth day opened 
arm as before, and examined it. Opened arm six or seven times 
in first two weeks. Then I began to go to his office. I asked if 
I could go to his office, as it would cost less. Fie said “all right.” 
Went to office three times a week for a while. Arm opened first 
time. Some weeks he opened it twice a week. Said it “ would 
get along well by and by.” He always felt of it and examined it. 
Arm was cracked for seven or eight weeks after broken. Told me, 
as often as I came to office, to eat as much meat as I could, and arm 
would unite. He said I didn’t eat meat enough. Treated me 
twelve weeks, about. When last at office told me to go to work, 
for a week, or fortnight, or month, and then, if not better, to call 
again at office. IFe would then take out the splinter, as there must 
be a splinter there, and arm would unite better. Said nothing else. 
Went home and told friends, and all said best I could do was to go 
to Dr. Roesler. When last at office could not move fingers, were 
all stiff’; could only bend them a little. There were some small 
blisters on back of hand. That was all. Could not raise arm to 
head. Could not turn arm then as much as now. When I went to 
New York could only bend fingers a little, except with other 
fingers. Flesh was all gone on arm. Arm wasted to half size. 
Was skin and bone. Had been, so ever since Dr. H. had treated 
arm. Was so about two weeks after treatment began. Arm tied so 
tight, became all blue. Showed Dr. Roesler my arm. Stayed with 
him three months. Had been in New York twelve or fourteen 
days when he performed operation. Dr. Fischer, Dr. Katzenmeyer 
and some others present. On return from New York, stayed about 
a week in Worcester, then came to Boston. Did no work after 
accident. Used arm for no purpose. Both shingles were on nine 
weeks—then one only. When last at doctor’s office had starch 
bandage on. He removed the starch bandage one week after put 
it on, cut it open and felt of arm, and slipped it on again. Skin 
went all off back of hand about four weeks after accident. Had arm 
in sling twelve weeks. No one else touched it. I followed doctor’s 
directions. My Society thought it best to have watchers. Hand 
was swollen for nine or ten weeks after breaking. About two Trial for Malpractice. 
5 
weeks after it, doctor gave me medicine. No dressing ever put on; 
but doctor put on shingles, splinters, and drew a blister where arm 
was broken. This blister was after eight or nine weeks. Kept 
on two days. Doctor gave no reason for it. When he took olf 
blister, he cut the places with scissors and let out water. After 
return from New York, saw Dr. H. in Worcester. He asked me 
hew arm was. I said not much better, and he asked to look at it. 
He asked, what the cut in the arm was. Told him doctors in New 
York operated on it. He said, “ didn’t I tell you to call at my 
office, if your arm was no better ? I could have cut on it as well 
as those doctors in New York.” He said he was sorry for the 
accident. This was all that was said, f was very healthy before 
accident. 
Cross-Examined.—Born in Bavaria. Am gunsmith. Worked 
in Allen & Thurber’s pistol shop at time of accident. Boarded at 
Mayberger’s two weeks. Belong to Turnverein Society,. Can’t 
tell at what end doctor began to wind bandage. He cut end of 
splinter off to ease thumb, eight or nine weeks after accident. 
Never paid doctor anything for services. He did not send me a 
bill. Doctor put no liniment or salve on arm. He gave me some 
bark after about two weeks. Friends sat up ten nights with me. 
I only drank once, on Fourth of July. Then Mavberger and me 
drank a little beer. Went to New York by steamboat, Norwich 
and Worcester line. Friends said Dr. Roesler was the best 
doctor—-they knew him in the old country. He advertised when 
he moved from Broadway to Canal St. Boarded and lodged 
with him three months. No other patients did so. In bed four 
weeks, and three months before went out of house. Dr. R. said 
it was a poor-looking arm, and was not set. He called other 
doctors, and all agreed on operation. No one advised me to bring 
this suit. I live now at 602 Washington St., at Fred. Siegler’s. 
Keeps a boarding-house and has lager beer for boarders. At last 
visit doctor told me to do light work. Never tried to lift with my 
hand. Allen & Thurber did not turn me away. Made no charge 
against me. Searched my trunk, but found nothing stolen. 
Members of Turnverein believe in God and the Bible. Know of 
no votes or propositions on religion or churches, Ac. Came to 
Boston because had friends here. Sued Dr. H. here. Came here 
partly for the purpose of bringing suit. Didn’t pay Dr. PI., because 
he didn't make up my bill. I then went to New York, because 
friends advised it. Didn't do a little work, as Dr. PI. advised. 
Dr. Roesler (German. This witness and the next were examined 
through S. IIrhino, as interpreter).—Physician for seventeen years 
at Wirtemberg, and then for four years at New York. First saw 
plaintiff in September, 1855, at my office. Investigated injury. 
Saw no external wound. The skin was kind of peeled away, but 
there was no regular wound. There was a gangrenous ulceration 6 
Trial for Malpractice. 
about lower part of thumb. Skin of back of hand between finders 
had a gangrenous appearance. The radius was separated. The 
ulna was as if broken and cured again, but was not in regular shape, 
and as it ought to be. He could not move his thumb and fingers, but 
I could. The first thing was to heal the gangrenous ulcerations. 
Then the first thing was an operation, as it was impossible to 
replace the arm; it was too late. Made the operation seven, eight, 
or ten days after I saw him. Operation was a Three 
surgeons present. It was necessary to cut off two ends and set 
them together again, as they were sick. I have the pieces cut off. 
(Two pieces of bone, of a dark color, between an inch and a half 
inch in length, were here produced; one quite conical, with the 
apex well rounded, the other also conical, with a pointed apex, but 
on one side presenting a rough, jagged surface, as if an irregular 
fragment had been broken off.) If we had not cut these off, the 
arm would never have healed again. One was beginning to be 
attacked by caries, and if that has taken place, arm never can be 
joined together again. Pieces of bone look now of same color as 
when taken out. At incision, courses of Jistules were found next 
the bone, which the surgeon must take out. They were destroyed. 
After operation, put on bandage to keep parts in regular form and 
position. The bone (radius) was united before he left Ye^vf York. 
He had a fever and was very sick, and we gave him medicine. 
When he came to me the ulna was twisted. There was a want of 
rotary motion in the radius, because it had not been united. The 
want of it now is because the soft parts were destroyed near the 
broken part, and because of the fistules. Fistules were occasioned 
by bones not uniting, then when bones ulcerate, the fistules appear. 
If bandage too tight, circulation becomes impossible and ulcers 
come forth. If pieces of bone had not been cut off, the result 
would have been that the caries would have increased, and amputation 
become necessary. In case of fracture, bandage should be neither 
too tight nor too loose, but one which prevents all movement. A 
little swelling of hand not improper. Hand will swell without 
bandage. The two ends of bone were found to be half an inch apart. 
The fracture was not difficult to cure, if no other circumstances 
made it difficult. In a healthy patient, of twenty-one years, five or 
six weeks is the ordinary time for a cure. The bandage should 
not be removed until five, six or eight days, unless extraordinary 
circumstances require it. Should not be often removed, unless 
there is a wound, or swelling, or pain. If both bones are broken, 
good practice requires four splints. Plaintiff’s arm very much now 
as when he left me—bones a little stronger. When he came to me, 
the arm was of full size, except broken part of radius, which was 
swollen by the bandage, but it was possible easily to feel the broken 
part through the flesh. In the operation I was assisted by Drs. 
Fischer, Katzenmeyer and Schuberg. Trial for Malpractice. 
7 
Cross-Examined.—Keep an apothecary shop in New York, 
Canal St., corner of Allen St. Advertise only when I change my 
residence. Not a member of New York State Medical Society. 
Am only a member of a German Medical Society. Practise 
entirely among Germans. Perform a great many operations—few 
do as many as I do. Do not know what previous treatment of 
arm was. It was in a miserable condition when it came to me. 
There wa*s inflammation, which began to be gangrenous on lower 
part of arm and fingers. Arm somewhat swollen. Could not see 
fracture from outside. After bone is cut off1, the blood in it grows 
darker. I use four splints for fractures. The operation has shortened 
the arm three fourths of an inch. When he came, there wras no 
opening in the arm. Gave him medicine for the fever which followed 
operation—quinine, phosphoric acid and cinchona. Gave cooling 
medicine during fever; when fever declined, and he was weak, gave 
strengthening medicines. After first week of fever, applied warm 
chamomile poultice, and put salves on wound. He was so sick he 
remained in bed four weeks; then I let him go about the room. 
He was two months in one room. The third month he went out 
into the open air. Have not been paid for the operation and 
nursing, but the Turnverein Society paid his board. While 
I had a hospital, I had boarders; only took plaintiff to board, 
because very interesting case. By gangrene I mean destruction 
and festering of the soft parts, where the upper part is sick, 
and separates from the lower. “ Brandig ” is the German word 
for gangrene. Soreness of the thumb was probably occasioned 
by too strong bandaging. Might be caused by splint pressing 
against it. I made only one cut. Found only one breaking of 
radius. Nothing materially wrong in ulna; direction a little wrong. 
After an operation of cutting off bone, arm always deformed. 
Radius and ulna can always be kept from coming together by a 
bandage. Arm cannot be better than it is now. He can pronate 
but not supinate. This is because the radius is shorter and callus 
has thickened; and because ulna not in right direction and bent a 
little. In similar cases of cut bone, patient cannot supinate. I 
never performed this operation before. The operation resulted 
better than I anticipated, though full strength will never come 
back to fingers. Am not disappointed with result. Plaintiff was 
in danger of his life about six days after operation. Continued so 
about a day and a half. Was twice out of his mind—a full night and 
a day. Friends inquired about him every day. Had a very high 
fever; was quiet and very weak. At place of cut, common festering 
came out. At time of operation, plaintiff was a “ healthy patient,” 
so called. Pasteboard is better for splints than wood. Where 
both bones are broken once, and ulna unites in usual time, and 
radius not, it is an extraordinary case. Have kept tables of my 
operations. Ulna and radius generally unite together—do not 8 
Trial for Malpractice. 
differ in time of union by a week. Do not know a single case 
where radius has not united, when bones are rightly put together. 
Will unite in five to seven weeks. Longest time I have known in 
effecting union in properly-set radius is seven to eight weeks. 
Determined on an operation the first day I saw him. He told me his 
physician had dismissed him to go to work. I understood it as a 
dismission. I did not communicate with defendant relative to the 
case. Object of cutting is to find- new and healthy with 
vitality. If there is caries in fractured bone, an operation is 
necessary beyond a doubt. This was a case of simple fracture of 
radius. Have had not less than twenty cases of simple fracture of 
both bones of fore-arm. I do generally correspond with the prior 
surgeon; but did not in this case, for reasons I prefer not to mention. 
The muscles which moved the thuml ,vere affected or destroyed by 
ulceration and festering. No sound muscle was cut by me. I only 
cut out the sick parts of upper muscle. I used a chain saw. 
Gangrenous ulceration took place because the nourishment of 
hand and thumb had suffered, and the pressure on the thumb was 
so great that festering or ulceration took place, and scars were 
formed, and the muscles became weak. Ulceration and festering 
are the same thing. Extensor of thumb was pierced through with 
fistules. I did not cut it. Before I cut, there was no possibility of 
movement in the thumb, but there was movement afterwards. 
None before, because the nourishment of the lower arm had ceased. 
Present partial motion of extensor is owing to present soundness 
of muscles, which were sick before. Sick before, because the joining 
of the fixing of the muscles was not in order before. Knew this, 
because both ends of bone could be easily felt through flesh, which 
led to conclusion that there was a festering in the part of the 
muscle which moves the thumb. 
Dr. Katzenmeyer (German).—Was educated at Munich; 
afterwards assistant physician at Heidelberg. Have practised two 
years here and one in Europe. Was present at operation. External 
appearance of arm atrophous—place of fracture slightly inflamed. 
Hand stiff and swollen, with traces of gangrenous blisters. Found 
one fracture of radius, and ulna united by callus—not united in 
direction of axis. From external appearance, came to conclusion 
that bone was not rightly set (eingerichten), and that the ends of 
the bone were carious. Concl Ud there was caries from the 
fluctuation and crepitation. Concluded that there should be a 
re-section, or an amputation of arm. I should have proposed 
amputation, but was convinced by the learning and experience of 
Dr. Rocsler, that the cutting off the ends should be first tried. 
Assisted at operation. Bone was laid open, and saw put to sick 
ends. After removing ends of bone, wound was drawn together 
and left open in the middle to allow of the efflux of fistula. 
Muscle of arm and ends of bone attacked by festering. No muscle Trial for Malpractice. 
9 
removed from arm. Dr. R. took out about a spoonful of festering 
or matter. After operation, there was efflux of matter for several 
clays. Saw plaintiff almost daily after operation. After operation, 
arm bound up with spliuts, and dressed, beginning from elbow. To 
prevent ulna and radius coming together, graduated compresses 
used. Arm placed in sling. Broken ends could not have been 
united without re-section. Could not have been a ligamentous 
union between ends. Impaired motion of thumb owing to weakening 
of muscles by festering. Fracture of radius simple. Simple fractures 
of fore-arm are easy to be known and treated. When plaintiff came 
to New York, not possible for him to attempt to labor. Arm not 
previously treated with care. In my opinion, radius never rightly 
set, for ulna not in right direction. As fracture was simple, could 
not but have been easily cured with proper treatment—therefore, I 
think it was not well treated I ascribe the gangrenous appearance 
to tightness of bandage. Before operation, no motion of thumb. 
Present imperfect motion owing to shrinking and growing together 
of muscles. No part was cut or divided in the operation. 
Atrophous state of arm owing to too tight bandaging, which 
hinders circulation. Arm will never be restored to full use. 
Cross-Examined.—Am physician, accoucheur and surgeon— 
office in Second Avenue, in New York. Do not sell medicines. 
Not a member of New Yrork State Medical Society—belong to a 
German Medical Society. Have performed such an operation once, 
seen it several times. I use four splints for simple fracture of 
fore-arm—splints of pasteboard or gutta percha. Splints to be 
placed on four sides of arm. Greater safety in four splints. Not 
partner of Roesler; called at his house almost every day, because 
intimate with him. After operation, bandages, Ac. removed ten 
times in three months. First removed in six weeks after operation. 
Took away portion of bandage every day to clean arm. At 
operation three splints were used, with a fourth divided across. 
The gangrene or festering on plaintiff’s thumb and fingers, when I 
first saw him, was of dark color, and went through flesh to muscles. 
Dr. R. cured this, before operation, by external treatment only. 
Whole arm atrophous, caused by too tight bandaging. One of the 
fragments of bone wms carious, the other resorbed. I should 
certainly have amputated on strength of external appearance of 
arm ; because of atrophous condition of arm, because I knew there 
was caries, and because I kmxT” there wras formation of matter, or 
festering, in arm. All the bone that was affected with caries was 
cut off. Usual in surgery to amputate, or re-sect, for caries. 
Resorption shows bad putting together of bones. In case of caries 
in hip, would re-sect, under most favorable circumstances. The 
German word for fistula is eiterung. Operation of re-section does 
not of itself produce bad effects on muscles. 10 
Trial for Malpractice. 
Defendant’s Testimony. 
John E. Hathaway, M.D.—Am 29 years of aye. Have been 
in practice four and a half years. Was student at Medical College 
in Boston, four years as house-apothecary at Massachusetts General 
Hospital, and six months as house-physician. Paid particular 
attention to surgery, and saw nearly all the operations while at the 
Hospital. Have been City Physician in Worcester. On 30th ot 
June, 1855, was called to plaintiff. On examination, found ulna 
broken once about the middle transversely, and radius broken in 
two places, at both obliquely; once nearly opposite fracture of ulna, 
and again rather more than an inch below. Found a wound in arm 
whence blood was issuing, evidently made by end of bone protruding 
through. Cleansed blood from arm and stopped bleeding. Placed 
lint on wound, and put adhesive plaster upon it, to retain it in 
place, and to shut out external air. Padded splints and arranged 
bandages, reduced bones by extension and counter-extension with 
assistance of bystanders, kneading bones into position with hand. 
Placed one splint on back of arm from elbow to tips of fingers; 
the other on front, from bend of elbow to middle of pahn. Before 
applying lint, however, put finger into wound and took out two or 
three fragments or splinters of bone. AVliile adjusting apparatus, 
Dr. Kelly came in. Seeing that bystanders appeared to recognize 
him, thought he might be their physician, so offered to give up case 
to him. He declined, but kindly offered to assist me. Took off 
splints, and let Dr. K. examine arm, and re-applied splints as 
before. Dr. K. and I got the bones into what we thought excellent 
position. Then applied roller bandage from fingers up to, and 
above, elbow. Bent arm (back splint having joint at elbow), placed 
it in'sling, and suspended from neck. Placed plaintiff' in my chaise 
and took him to his boarding house. There had him undressed and 
put to bed. Took off sling and rested his arm on'a pillow, in an 
easy position. Expressed himself easy and free from pain. Left 
him, with directions to keep quiet and avoid all stimulant. Told 
him, if arm felt hot and uncomfortable, he might apply cold lotions to 
ease it. Called next morning, found him sitting up ; had been free 
from pain, but had applied cold water to arm in the night, to make 
it feel easier. Saw beer mugs all about room, with beer in some 
of them; also, on table near bed, a tumbler containing, apparently, 
port-wine sangaree. Reminded him of my directions to abstain 
from stimulant, and told him it was not safe to venture in that way. 
He said he had not drunk much. Examined arm, though not 
removing dressings. No swelling, such as often takes place ; fingers 
not swollen. Think I called again at night. Called next day, and 
next. Secured bandage with pins. On third day, removed apparatus. 
Wound was healing by granulation; washed arm and redressed 
wound; some slight oozing of matter from wound, with slight odor. 
Visited patient about once every day and a half, for ten or fourteen Trial for Malpractice. 
11 
days; then three or four times a week. On sixth day, removed 
apparatus to dress wound. Found it nearly healed; closed, but 
not cicatrized ; replaced splints, &c. After third or fourth week, 
patient visited me at my office. Up to this time, arm doing very 
well. Xo particular action, however, and I feared high fever, but 
there was not so much of this as I expected. By third week, 
fracture of radius had become simple, by healing of wound. Union, 
in ordinary cases, takes place in four to live and a half weeks. At 
end of five weeks, began to be anxious for union in ulna. Conferred 
with Dr. Gage and other surgeons about case. At end of four and 
a half or live weeks, found ulna firmly held together, and in six, or 
six and a half weeks, there was union. Of course it had not yet 
become solid bone, but such that splint could be moved in a week. 
Showed arm to Dr. Gage, asked him to examine it. Made patient 
hold up arm, and we looked across it. Arm in excellent shape. 
So little distortion in any part, that one could not tell, by sight, 
where fracture had been. Could find seat of fracture by feeling. 
After this conference, appointed early day for patient to come again. 
Then applied starch bandage. Patient called three or four days after. 
Cut up bandage in usual way, and took out the limb. Applied a 
stimulating liniment to arm; tincture of camphor, soap, and volatile 
oil, with a little capsicum. Also used friction. Repeated use of 
liniment with friction, for three or four next visits. After eight or 
nine weeks, radius had stiffened a little—at one place rather stiff; 
at the other, not so much so. Had in mean time given him a tonic, 
to be taken daily, before meals, known ns “ compound iron mixture.” 
At this time applied, over seat of fracture of radius, to excite 
action, a blister. At next visit opened it and let out matter, and 
told him to exercise in the open air, to get appetite, and to eat 
meat and nourishing food. At the end of another week, found 
indicalions of improved action; washed arm, applied alcohol, and 
re-adjusted starch case. At end of about a week, patient came 
again. This was his last visit. Examined arm, and found ulna 
very firm. Found some union of upper fracture of radius. His 
health was improving. Told him months, and even years sometimes, 
elapsed before perfect union in cases of compound, comminuted 
fractures—that he must not be discouraged, if he recovered slowly. 
Told him to flex his fingers, which were stiff from long disuse, and 
to lift light weights, and employ muscles of arm, in order to improve 
action. If he wanted an object, he might do some light work. 
Directed him to come again at end of ten days or a fortnight, and 
let me examine arm, and to continue calling, from time to time, till 
well. Informed him that, if treatment did not result favorably, 
and Nature refused to work a cure, there was a last resort in an 
operation. At present, sufficient time had not elapsed, nor was his 
health strong enough to bear it. He assented, as if he understood 
my views. I had, in fact, taken pains from beginning, to explain 12 
Trial for Malpractice. 
my movements to him, in order that he might co-operate. As he 
went out, he asked how much my bill was. I replied, I had not 
made it out, but would have it ready for him at next visit. He 
never came again. At this visit, which was at end of eleventh or 
twelfth week, the shape of arm was good; fracture only to be 
found by feeling; arm somewhat reduced in bulk, but not wasted, 
and with the atrophous appearance which a healthy arm would 
have, when so long without exercise. Full motion nearly restored 
to fingers; could bend them, but not quite shut them. I could 
easily shut them myself. The front splint had been so wide that 
it had pressed against ball of thumb. Had put my director under 
it, and cut out a notch to ease thumb, and placed batting under the 
end. A little skin came off from thumb, where splint rubbed. The 
operation I referred to was the seton operation. Had seen it tried 
and succeed. Intended to perform it only as a last resort. 
Bandages, when first applied, were not tight, but firm. There 
was no unusual swelling of hand or fingers afterwards; and no 
complaints of pain from patient. Ulna generally unites sooner 
than radius, which has a double motion. At last interview, upper 
fracture of radius considerably united, which was an encouraging 
symptom for union of lower. Should have waited ten or twelve 
weeks more before using seton. Regulated his diet, because his 
health was below par. When he left, there was nothing on 
thumb but a little eschar; the skin had healed, but was not white. 
Between fingers, skin had been softened by perspiration. No sign 
of gangrene anywhere, as we understand it. At last interview, no 
sign of unhealthy bone at seat of fracture, and nothing to make me 
apprehend it. If there had been decaying bone, there would have, 
been swelling of the limb, accompanied with pain, and an opening 
would have appeared. Felt no matter at seat of fracture. Matter 
would not have indicated dead bone. At last interview had no 
idea patient was going to withdraw himself from my treatment. 
Had heard no expression of dissatisfaction from himself or his 
friends. Some time after, asked some of the Germans why he 
had not been to see me, and was told he had gone to New York. 
Saw him a few minutes in the street, in Worcester, after his return. 
Saw scar and redness on his arm, which he said were made by the 
operation. Felt large callus. Asked him to pronate and supinate. 
He could do so but little. Expressed no dissatisfaction with my 
treatment; and 1 had no idea of any, till surprised by service of 
the writ in this case. 
Cross-Examined.—Hole in integuments large enough for little 
fing ;er to enter. Hid not see the bone—blood constantly discharging. 
Took out two or three pieces of splintered bone. Think these 
were all. Took out all 1 could remove with safety. Pieces removed 
shaped somewhat like a split pea. Would not have been justified 
in removing intermediate fragment of radius. This was about an Trial for Malpractice. 
13 
inch long; though, of unequal length, because obliquely broken. 
Think it could not have been split, without my knowing it; may 
possibly have been cracked. The bones never got out of apposition 
after being once set. The intermediate fragment was sometimes 
moved out of place by the contraction of muscles. Impossible to 
keep it exactly in place, as least action would disturb it. Examined 
arm yesterday. Found a little curving out of the ulna, which did 
not exist when he left me. At that time ulna not perfectly firm and 
solid, as the perfecting of solidity of bone is a slow process; could 
probably have been bent at that time. Fid not exercise rotary 
movement of arm, lest I should disarrange coaptation of fragments. 
When I told him he might do light work, he spoke of filing (at 
pistol shop). Objected to his filing, but thought he might do some 
such work as holding pistol locks upon emery wheel. Thought 
also his employers might employ him to go on errands; as I 
particularly wished him to be in open air. The starch case, being 
left on, would prevent rotary motion, and thoroughly protect limb. 
In case of compound, comminuted fracture, patient may lose limb, 
if wanting in care. Pie did not disobey my directions, to my 
knowledge, in any way, except by using stimulant as before mentioned. 
Did not preserve splinters of bone taken out by me. 
Dr. S. H. Kelly.—Am physician in Worcester. Was present 
at setting of arm, &c., by defendant. When I came in, he asked 
me to examine arm, and removed dressing for that purpose. Found 
fracture of radius in two places, both obliquely-—and of ulna in 
one place, transversely. The fracture of radius was compound, 
with a wound in the integuments. Assisted at dressing. Made 
counter-extension, while defendant made extension. Bandage not 
too tight certainly, and not too loose, but what is called firm. Was 
struck with skilful and neat way in which everything was adjusted. 
Patient made no complaint of pain, and appeared to feel easy. 
Saw defendant drive off with him in a chaise. 
Cross-Examined.—Think I put my finger in wound, but took 
out nothing. Defendant showed me the two splinters of bone 
taken out by him. Arm w~as not much swollen. In majority of cases 
there would be considerable swelling after such an injury. Such 
swelling wrould have effect to tighten bandage. 
Thomas H. Gage, M.D.—Am Assistant Physician at State 
Lunatic Hospital at Worcester. Graduated at Medical College in 
Boston, four years ago. Was House-surgeon one year at Mass. 
General Hospital. Practised at Sterling three and a half years 
before going to Worcester. Known defendant since 1849, when 
we began to study together. Arm was shown to me by defendant 
at his office. Defendant removed dressing, and bared the arm, and 
I examined it. Patient held arm up, and I looked carefully across 
it. Made the remark that it was not possible to detect the place 
of fracture by the eye. PA It limb carefully with hands—found 
well-united fracture of ulna, and feebly-united fracture of radius, 14 
Trial for Malpractice. 
which was broken in two places. Found a little callus at fracture of 
radius. Could distinctly feel intermediate fragment. Traced radius 
with hand from end to end, and found it in its natural position, 
especially two larger fragments; the intermediate oblique fragment 
being very slightly out of line. Very difficult for dressings to make 
impression upon it. Arm was in excellent and perfectly natural 
position, and in very good shape. Somewhat diminished iu 
bulk, as would be expected. No swelling at all of arm or 
hand. Nothing out of the way with thumb. Saw scar on 
outer side of radius, as of recently-healed wound. Defendant 
replaced apparatus in my presence. In addition, we applied pads 
to keep the intermediate fragment in place. Do not know which 
of us suggested it. Arm appeared as if decidedly correctly treated 
hitherto. No evidence of bandages having been too tight. Good 
circulation in arm. Patient made no complaint. Ulna was as firm 
and strong as could have been expected in four or five weeks. No 
sign of anything like gangrene or mortification. Nothing to excite 
suspicion of there being dead bone. 
Cross-Examined.—We talked together about general means of 
improving patient’s health—‘also of starch bandage. An operation 
then would have been entirely improper. Traced ulna down 
carefully, as I always do, and found whole length in good position 
and fragments well united. 
Winslow Lewis, M.D.—Have heard all the evidence in this case. 
Defendant’s treatment, as described in his testimony, was perfectly 
correct in every detail. The case was a bad one, requiring unusual 
surgical skill. All compound fractures are more or less difficult. 
Air is admitted by external wound, and wound itself requires 
separate treatment. Fracture more difficult of treatment if 
comminuted. Fragments are constantly working out of apposition, 
under the action of muscles; and ends of bone, especially if 
obliquely broken, are apt to wound the nerves and vessels. Case 
also more difficult, of course, if both bones are broken. One 
cannot then serve as a natural splint for the other. The contraction 
of the pronator muscles would also embarrass the setting of the 
bone, and would tend to draw the fragments apart when once in 
apposition. The process by which union is effected is governed 
by no general law, but depends upon a variety of circumstances. 
The process consists of an irritation of membranes at ends of 
bone, which inflame, and a fluid called nature’s glue is poured out, 
which attaches the fragments to each other. This fluid hardens, 
and becomes callus, which, in time, gives place to solid bone. A 
fracture like this one would have done well if cured in seven or 
eight months. Union sometimes delayed a year or more. Sometimes 
takes place with deformity or shortening of limb. Never heard of 
using four splints, as advised by German physicians. Even if no 
union takes place, the limb may be used for certain purposes. An 
operation is the last resort—is always more "or less dangerous. Trial for Malpractice. 
15 
Should advise seton operation to be first tried, except in case of 
death of the bone. Presence of dead bone is indicated by 
inflammation, excessive pain, and a discharge through an opening 
in the integuments. Dead bone could not exist without such an 
opening being formed. (Examination not completed.) 
(The Court here adjourned to morning of third day, January 
15th; at which time Dr. Lewis gave way to Dr. Ilayward, whose 
engagements made it more convenient for him to be examined at 
this point.) 
George Hayward, M.D.—Heard evidence of defendant. His 
treatment was entirely proper and correct. It was just such as 
I should have pursued. Case was a difficult one from nature of 
accident, plaintiff having thrown his arm behind him and fallen upon 
it with the weight of his body. Treatment more difficult because 
fracture was compound, comminuted, oblique, and of both bones. 
In cases of compound fracture, external wound to be first healed. 
Permanent bony union does not generally take place sooner than a 
year. Should not have thought of performing an operation in this 
case at the end of twelve weeks. Defendant’s direction to plaintiff 
to do light work, &c., at the end of this time, was good. Should 
have delayed performing an operation in this case till other 
means failed, and Nature refused to work a cure. If the arm 
had come under my care in the condition described by German 
physicians, I should have tried starch bandage and electricity. 
Should not have attempted an operation. If operation afterwards 
became necessary, should have performed seton operation as 
particularly adapted to this case. Nothing in defendant’s evidence 
to indicate dying of the bones. Dead bone always indicated by 
inflammation and opening in the integuments. The pieces of bone 
of radius exhibited by the German physician are not decayed. 
They are perfectly healthy in appearance. There is nothing in their 
appearance to justify excision. No caries. Fragments also contain 
medullary sub'stance, and medulla is absorbed, when no union is to 
take place. Dark color owing to drying of blood by time. Largest 
fragment shows that a part of it lias been united with another part. 
Think it must have been cut off above the union of the upper 
fracture. (The witness, in explanation, called the attention of the 
jury to fragments of bone. He pointed out a slight, but distinct, 
curve in the larger fragment which, with other marks, indicated that 
it had been broken at the angle of the curve, and afterwards united. 
The cutting had been made above this point.) If there were pus 
or matter in arm, as described by German physicians, it was not a 
proper time to perform operation. Where pus is small in amount, 
and gives patient no pain, it does no harm. Would probably be 
absorbed. Atrophy does not indicate that there has been no 
proper circulation, but results naturally from the injury, and from 
necessary confinement of the limb. No evidence of gangrene in the 16 
Tria l for Ma /practice. 
appearance of arm, as described in evidence. I use two splints, 
with a small one two inches long, sometimes, when fracture is very 
low in the arm. This, however, is not necessary if front splint 
extends to palm of hand. Never used four splints. In mv judgment 
the bend in ulna is owing to operation in New York. Think radius 
would have completely united under defendant’s treatment. We 
have no other method of effecting union than that pursued by him. 
* Cross-Examined.—The want of power of extension in thumb is, 
I think, owing to a cutting, or wounding, of extensor muscle, when 
operation was performed. Can account for it in no other wa}'. 
At this stage of the trial, when defendant’s counsel were about 
to recall I)r. Lewis, and were expecting to proceed with the 
examination of the other medical experts summoned by them, the 
senior counsel for plaintiff rose and stated to the Court that the 
prosecution of the case would proceed no farther. Until the 
opening of the junior counsel for the defence, he had been under a 
misapprehension as to the nature of the -fracture, having been given 
to understand, after careful inquiry, that it was both simple and not 
at all serious in its nature. It now appeared in evidence that the 
fracture was both compound and comminuted, and one very difficult 
of treatment. It appeared, also, that the defendant’s treatment 
had been skilful and correct. In justice, therefore, to the defendant, 
the trial should end here. He would consent that a formal verdict 
should be at once taken for the defendant, unless his counsel desired 
to call the remainder of their experts, in order to vindicate still 
more completely the treatment pursued by their client. 
In reply, the senior counsel for the defendant acknowledged 
becomingly the honorable course taken by plaintiff’s counsel. He 
would have been glad to have placed other medical gentlemen 
upon the stand, whose approbation of the defendant’s mode of 
practice would have been equally signal with that of the two 
already called; but in the present position of the case, this was in 
no way necessary. He asked the Court, accordingly, for a verdict. 
The Court (Hon. Pliny Merrick) expressed itself highly 
gratified by the proceeding of the plaintiff’s counsel. The 
evidence of the plaintiff and of the physicians from New York 
had, taken alone, made out a case entirely sufficient to justify the 
counsel in going to trial. The defendant had, however, by his 
own testimony, clearly acquitted himself of fault; and certainly a 
junior practitioner of law who should receive from his elder brethren 
the decided approval which the defendant had met with in this 
case, would have abundant cause to congratulate himself. The 
Court expressed ’itself as unable to understand what had induced 
the plaintiff to institute this suit. 
Whereupon a verdict for defendant was ordered and taken.