Sisler v. Jackson

• Citation: 460 P.2d 903
• Decision Date: 08 July 1969
• Docket Number: No. 42034,42034
• Parties: Augusta S. SISLER, Executrix of the Estate of Wade Sisler, Deceased, and Wade Sisler, d/b/a Mercy Hospital, Plaintiff in Error, v. Ellen JACKSON, Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 903

460 P.2d 903

Augusta S. SISLER, Executrix of the Estate of Wade Sisler, Deceased, and Wade Sisler, d/b/a Mercy Hospital, Plaintiff in Error, v. Ellen JACKSON, Defendant in Error.

No. 42034.

Supreme Court of Oklahoma.

July 8, 1969.

As Corrected Nov. 10, 1969.

Rehearing Denied Nov. 12, 1969.

Syllabus by the Court

1. Where trial court sustained demurrer to evidence as to certain causes of action but permitted plaintiff to reopen for presentation of further evidence upon one cause and plaintiff dismissed without prejudice to refiling with trial court's approval, the case failed otherwise than upon the merits and jurisdiction of the subject matter was not lost.

2. Election of remedies is predicated on existence of a state of facts giving the party an option to do either one thing or another. If there is only one remedy and not a choice between two or more, the doctrine of election does not apply.

3. To make causes of action inconsistent one must allege what the other denies, or the allegation of one cause of action necessarily must repudiate or be repugnant to the other.

4. Where there is sufficient basis in the evidence of a malpractice action for reasonable inference that the defendant should have discovered the cause of the plaintiff's suffering and should have properly treated such condition, there is no error in the submission to a jury of the question of the defendant's negligence.

5. Improper argument by counsel for the plaintiff, while not to be condoned, does not call for a reversal of a verdict for plaintiff where it reasonably appears from the whole record that the jury was not influenced thereby, and apparently followed directions of the court not to consider such improper argument.

6. In an action for personal injuries a verdict will not be set aside for excessiveness of damages unless it clearly appears that the jury committed some gross and palpable error, or acted under some improper bias, influence or prejudice or has totally mistaken the rules of law by which damages are regulated.

7. Where all the evidence, including circumstantial evidence, the reasonable inferences to be drawn therefrom, and the extrajudicial admission of the defendant, make it appear more probable that the plaintiff's injury resulted from the negligence of the defendant than from another source, judgment for the plaintiff is proper.

Appeal from District Court of Tulsa County; Robert D. Simms, Judge.

Action for damages for medical malpractice. Judgment was entered upon a jury verdict in plaintiff's favor and defendant appeals. Affirmed.

Farmer, Woolsey, Flippo & Bailey, Tulsa, for plaintiff in error.

Paul W. Brightmire, Tulsa, for defendant in error.

BERRY, Vice Chief Justice.

This medical malpractice case has a lengthy history. Plaintiff in error, a medical doctor specializing in orthopedic surgery, owned and operated his own hospital. Following surgery and hospitalization in August 1959 Ellen Jackson, then 47 years of age and earning her livelihood as a waitress, suffered a permanent impairment of 'dropped' right foot. In July 1961 she filed suit to recover damages against both defendant and the hospital alleging four separate causes of action: (1) gross and wanton carelessness and negligence of defendants in numerous respects; (2) defendants' breach of both express and implied warranties; (3) fraudulent and deceitful concealment of true facts as to plaintiff's condition and misrepresentations of defendant; (4) assault and batteries above and beyond consent and authority given defendants to perform certain surgical procedures. After the issues were formed the case was presented to a jury.

Upon completion of plaintiff's case and announcement of rest defendants demurred to the evidence. Following argument the trial court sustained demurrers as to the last three causes of action, and allowed plaintiff to reopen the case in order to introduce additional evidence supporting the first cause of action. Plaintiff then dismissed the action without prejudice to refiling. Upon defendant's inquiry whether dismissal was proper under such circumstances the court stated plaintiff had been given permission to reopen, and was of the further opinion plaintiff properly could dismiss.

Plaintiff immediately filed another action charging defendant with: (1) negligence involving lack of skill and care; (2) assault and battery arising from uninformed consent, amounting to no consent at all, causing injury; (3) breach of warranty that nothing could go wrong and plaintiff would be all right after surgery; (4) fraudulent concealment of injury resulting in aggravating delay of proper expert treatment; (5) assault and battery from defendants allowing unlicensed negro porter to practice medicine on plaintiff causing injury.

Prior to trial the first cause of action was amended to allege defendant's failure to advise plaintiff surgery possibly might result in a partially paralyzed leg, and plaintiff's consent therefore was without sufficient knowledge and not real. At a prior hearing the court had sustained defendant's motion to require election, and plaintiff elected to proceed upon the first and third causes of action. The amendment was permitted only as an additional ground of negligence, any theory of respondeat superior expressly being ruled out.

A voluminous record precludes concise summation. Effort is directed only to narration of factual background leading to plaintiff's hospitalization, surgery and injury, together with evidentiary matters concerning the action and defenses, to disclose the issues and related arguments on appeal. The evidence not only was highly conflicting in nearly every respect, but the meaning, interpretation, and weight to be accorded much of the expert testimony provides further ground for disagreement. Matters summarized hereafter fairly disclose evidence from which the jury determined the issue of liability in plaintiff's favor.

The greater trochanter, in lay language, generally is designated the hip bone. The femur, or thigh bone, has projections to which numerous muscles and ligaments are attached. The buttocks complex of muscles attach to the trochanter and are important to position of the hips in walking. Since childhood plaintiff, who earned her living as a waitress, had suffered from chronic, localized osteomyelitis of the right greater trochanter.

Defendant had attended plaintiff as early as 1948, when x-rays disclosed involvement of the trochanter, and surgery was advised. That year plaintiff was operated on unsuccessfully by another surgeon. In 1955 plaintiff returned to defendant for examination, and again surgery was advised. In May 1959 plaintiff, bearing a slight limp and painful hip was examined again, x-rays disclosing greater damage with some loosening of the bone. Defendant's evidence, denied by plaintiff, showed a history of injury to the hip from an undisclosed source. In August 1959 defendant conducted further examination and took a history of further injury to the right hip, from a fall sustained while doing housework, resulting in swelling and discoloration indicative of deep hemorrhage. Diagnosis was deep periosteal hematoma with secondary infection, abscess formation. Defendant's evidence as to history of injury was denied by plaintiff.

On August 26, 1959, plaintiff went to the hospital and upon payment of $250.00 was admitted by defendant, who assured her surgery would correct this condition and she would be walking about in 4 or 5 days. Plaintiff was put to bed, given a sedative about 2 P.M. and at 2:30 was given a shot which put her to sleep, surgery having been scheduled for 3 P.M. Scheduled surgery was interrupted and a further preanesthetic injection was administered about 4:15, prior to 5:30 when surgery finally began. Apparently being short of assistants, defendant directed an employee (Miller), who acted as receptionist and PBX operator, to report to the operating room nurse (Mrs. Wetzel) for instruction as to 'scrubbing in', and defendant then would show witness what she was to do by way of assisting in the surgery. Witness never had assisted surgery, but was directed to hold retractors used to keep the incision open during surgery. Witness performed this task, but turned her head and looked out the window during surgery for fear of fainting, and immediately left the hospital after the operation was finished.

Plaintiff was given a spinal block, placed on her left side upon the operating table and a long incision was made over the right hip. Defendant then removed part of the hip bone (greater trochanter) in ten pieces, largest of which was approximately 3 2 1 1/4 inches. The operation site was near the sciatic nerve. Time consumed in surgery approximated three hours, during which plaintiff regained sufficient consciousness to feel intense pain and hear defendant order another shot given, after which plaintiff again became unconscious. Whether plaintiff regained consciousness or was in condition to feel pain or hear conversation is disputed. Hospital records did reflect injection of a pain killer at 6 P.M., some hour and a half after surgery began. During surgical procedures plaintiff's leg was rotated in the socket.

After surgery plaintiff was returned to her room and placed upon the bed by an orderly. She roused sufficiently to see the orderly and members of her family, and complain of hot, burning pain from the knee down to her toes, because of which she received further sedation. On defendant's orders plaintiff was administered heavy sedation (morphine) about every 4 hours the first 3--4 days, because of complaint of burning pain in the right leg.

The most controverted testimony concerns post-operative care. Plaintiff's evidence was that for the first few days she was kept prone with a pillow under her knee. Being unable to move the nurses would turn plaintiff, causing extreme pain. No pillow was used under her foot, only under the knee to ease...