Toy v. Rickert, A--398

• Citation: 53 N.J.Super. 27,146 A.2d 510
• Decision Date: 28 November 1958
• Docket Number: No. A--398,A--398
• Parties: Horace R. TOY, Plaintiff-Appellant, who administered dose of penicillin by hypodermic v. Glennis S. RICKERT, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 27

53 N.J.Super. 27

146 A.2d 510

Horace R. TOY, Plaintiff-Appellant, who administered dose of

penicillin by hypodermic v. Glennis S. RICKERT, Defendant-Respondent.

No. A--398.

Superior Court of New Jersey.

Appellate Division.

Argued Oct. 27, 1958.

Decided Nov.28,1958.

Decided Nov. 28, 1958.

Francis J. Beyrent, Morristown, for appellant (Schenck, Smith & King, Morristown, attorneys).

Harvey G. Stevenson, East Orange, for respondent (Stevenson & Willette, East Orange, attorneys).

Before Judges GOLDMANN, CONFORD and HANEMAN.

The opinion of the court was delivered by

HANEMAN, J.A.D.

Plaintiff sought damages for personal injuries alleged to have resulted from defendant's negligence in administering a dose of 'bicillin' (penicillin).

Plaintiff's appeal is 'from the final (sic) judgment of the * * * Law Division * * * entered in favor of defendant * * * on March 24, 1958.' On that date the trial court made an order denying plaintiff's motion for a new trial. The final judgment was entered February 27, 1958 on defendant's motion for dismissal with prejudice, at the conclusion of plaintiff's case. However, counsel for both parties stipulated at oral argument that the date stated in the Notice of Appeal was an inadvertent error and that this appeal should be considered as from the final judgment of February 27, 1958. We shall so consider the appeal.

Plaintiff, a resident of Mountain Lakes, Morris County, owns and operates his own business in New York City. On the evening of February 17, 1956 he alighted from the train at Mountain Lakes at 'about seven o'clock and had a slight chill, a feeling that I was getting a cold.' Shortly after he arrived at his home plaintiff telephoned and advised defendant, a local physician, that he thought an injection of penicillin would be a 'good idea.'

Defendant went to plaintiff's home at about 9 p.m. and obtained some history from him concerning his prior experience with colds. Plaintiff informed defendant that colds 'usually wound up in (his) chest,' and that on at least two prior occasions he had received hypodermic injections of penicillin. Plaintiff testified that these prior injections had been administered to his right buttock. Defendant then administered a dose of 'bicillin' by hypodermic injection into plaintiff's right buttock. Within ten seconds thereafter plaintiff's right leg from the thigh to the foot became numb, and within one-half hour later he was seized with violent shaking. Defendant, who had remained at plaintiff's home, then drew a sketch for plaintiff 'showing how the contents of the hypodermic needle can get into the area of the sciatic nerve.' Plaintiff's buttock became swollen to such an extraordinary size that he could neither sit nor lie down. Several days thereafter plaintiff was admitted to St. Clare's Hospital at Denville, where he remained for two days. He continued under defendant's care for eight weeks. Defendant prescribed and plaintiff made use of narcotics to relieve the pain, and sleeping pills which induced three hours of 'unconscious' sleep each night. This treatment continued for three months, I.e., during the period of defendant's attendance, and thereafter at the direction of a physician whom plaintiff engaged in defendant's stead. The insensitivity of the leg subsided in about two weeks but was succeeded by extreme pain in plaintiff's foot. That pain abated in about eight months, but plaintiff still has a dull ache and walks with a slight limp.

Plaintiff adduced expert medical testimony which established that the cause of the pain was a neuro-vascular demineralization (osteoporosis) of the bones in plaintiff's foot, and that the condition was a result of sciatic nerve injury. Plaintiff failed to adduce any proof concerning the standard of care and skill to be exercised by a physician in administering a hypodermic needle to the buttock, or any evidence of the manner in which defendant administered the injection.

At the end of plaintiff's case the trial court granted defendant's motion for dismissal with prejudice upon the ground that plaintiff had failed (1) to establish the requisite degree of professional skill demanded of a physician, by expert testimony of those qualified by their own knowledge and experience in the same profession, and (2) to establish by such testimony that defendant had not exercised that degree of knowledge and skill which usually pertains to other members of his profession. Plaintiff urged, in opposition to the motion, that such proof was unnecessary, since the facts elicited justified the application of the Res ipsa loquitur doctrine.

During the argument of this motion plaintiff requested leave to reopen the case and permit him (1) to call defendant to testify concerning a writing he had signed as to the 'causal relationship between the injection and the injury to the sciatica (sic) nerve.' (This statement read 'causalgia resulting from chemical and physical irritation to (the) right sciatic nerve after an injection of 600,000 units of bicillin'), and (2) to recall a Dr. Palazzi for the purpose of having him testify to the causal link between the injection and the injury to the sciatic nerve.

Defendant, in opposing the application to reopen, pointed out that the statement did not establish the two elements essential to the case--the standard and a deviation therefrom. The same objection was made to recalling Dr. Palazzi. During the ensuing colloquy, plaintiff made it entirely clear that his motion to reopen concerned only the issue of causation. The trial judge then denied the motion, and judgment of involuntary dismissal was entered.

In his argument on the motion for a new trial, plaintiff's counsel stated that Dr. Palazzi, had he been recalled, would not have testified that defendant 'did something wrong.'

Plaintiff urges that the trial court erred in (1) granting defendant's motion for dismissal, and (2) in denying plaintiff's application to reopen the case so as to permit him to call defendant and Dr. Palazzi.

The theory of plaintiff's case, both here and at the trial, is that defendant was negligent in that he administered the initial treatment (the penicillin) improperly. The main thrust of his argument is that the proofs satisfy the conditions prerequisite to the application of the doctrine Res ipsa loquitur. He urges that the trial court should have applied that doctrine in this case, thus requiring defendant to go forth with his proofs.

Neither improper diagnosis nor impropriety in the treatment selected are in issue here. The sole factual issue is whether defendant inserted the hypodermic needle in an unorthodox manner or at a site which is not considered orthodox or proper.

The crucial issue in a case such as this is whether the defendant, as an attending or treating physician, was negligent in administering the treatment selected and, if negligent whether his negligence is causally related to the injuries which plaintiff sustained.

Proof of the standard of care demanded of a physician and the deviation from the established standard are ordinarily elements essential to plaintiff's cause of action. The general rule is that the

'* * * failure to use the requisite degree of professional skill demanded of the physician or surgeon must ordinarily be established by the expert testimony of those qualified by their own knowledge and experience in the same profession to know and state whether in the given circumstances of a particular case the physician or surgeon had failed to exercise that degree of knowledge and...