Voegeli v. Lewis

• Decision Date: 30 December 1977
• Docket Number: No. 76-1690,76-1690
• Citation: 568 F.2d 89
• Parties: Dicky D. VOEGELI and Sharon Voegeli, Appellants, v. Harvard R. LEWIS and Methodist Hospital, a corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 89

568 F.2d 89

Dicky D. VOEGELI and Sharon Voegeli, Appellants, v. Harvard R. LEWIS and Methodist Hospital, a corporation, Appellees.

No. 76-1690.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 18, 1977.

Decided Dec. 30, 1977.

Gerald L. Reade, Yankton, S. D., for appellant; John R. Kabeiseman, Yankton, S. D., on the brief.

Carleton R. Hoy, Sioux Falls, S. D., for appellee Lewis.

Joseph H. Barnett, Aberdeen, S. D., for appellee Methodist Hospital.

Before LAY and WEBSTER, Circuit Judges, and REGAN, Senior District Judge. ^*

WEBSTER, Circuit Judge.

This appeal requires us to review the evidence and trial rulings in a medical malpractice suit ¹ resulting in a jury verdict in favor of the treating doctor and the hospital in which the treatment occurred.

On Saturday, May 27, 1972, thirty-five-year-old Dicky Voegeli was riding a friend's motorcycle near Mitchell, South Dakota, when it tipped over at a speed of approximately five miles per hour. Voegeli fell from the motorcycle, but was not struck by it. Immediately after the fall, Voegeli's right leg began to hurt and there was swelling around his knee. Friends took him to Methodist Hospital, one of two hospitals in Mitchell. He arrived at approximately 12:30 p. m., one hour after the accident occurred. A nurse in the emergency room called Dr. B. P. Skogmo, a general practitioner. Dr. Skogmo looked at Voegeli's leg and called in appellee Dr. Harvard R. Lewis, a local specialist in orthopedic surgery.

Approximately one-half hour after Voegeli arrived at the hospital, Dr. Lewis saw him in the x-ray room. He read Voegeli's x-rays and ordered him admitted to the hospital. The physician's report, prepared by Dr. Lewis, indicated that Voegeli had suffered a fracture of the medial condyle of the right tibia and hemarthrosis ² of the right knee. A nurse called Dr. Lewis back to the hospital at 6:45 that evening. He was informed of nurses' notes stating that Voegeli's leg appeared "slightly mottled," that the patient complained his toes felt cold, and that he was unable to move them. At 7:05 p. m., Dr. Lewis again examined Voegeli.

On Monday morning, May 29, Dr. Lewis put a full cast on Voegeli's leg, leaving the toes exposed. Because of complaints that he was in constant pain, the cast was removed on Thursday morning, June 1, and he was informed that Dr. Lewis and another doctor would perform exploratory surgery. After surgery, which was performed Thursday evening, he was told that due to impaired circulation it would be necessary to amputate part of his leg. He signed an authorization and on Saturday, June 3, his leg was amputated at the knee joint. He was discharged from the hospital on June 10, but had to be rehospitalized on June 26 because of a staph infection that had developed in his leg stump.

Voegeli and his wife, Sharon, subsequently instituted an action against Dr. Lewis and Methodist Hospital, alleging inter alia, that the negligent failure of the defendants to follow good medical practice proximately caused the amputation of Voegeli's leg. The case was tried to a jury, which returned verdicts in favor of both defendants. Following entry of judgment on these adverse verdicts, and the denial of their motion for a judgment notwithstanding the verdict and for a new trial on the issue of damages, or in the alternative for a new trial, the Voegelies brought this appeal.

Appellants contend that, based upon the undisputed evidence, the District Court should have granted their motion for a directed verdict and, for the same reason, judgment in their favor notwithstanding the verdict. Appellants alternatively contend that based upon the weight of the evidence and numerous prejudicial trial errors they should have been granted a new trial. For the reasons stated herein, we affirm the judgment as to appellee Methodist Hospital but reverse and remand for a new trial as to appellee Lewis.

I.

Motion for Judgment N.O.V.

Appellees contend that the negligence of Harvard R. Lewis and Methodist Hospital was so clearly established that the District Court should have taken that issue from the jury and directed a verdict, or should have entered a judgment in their favor notwithstanding the defendants' verdict.

An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact. Russ v. Ratliff, 538 F.2d 799, 804 (8th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524, at 541-44 (1971). In Griggs v. Firestone Tire & Rubber Co.,513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975), citing Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir. 1960), we held that, in passing upon a motion for judgment n. o. v., the trial court and the appellate court are:

(1) to consider the evidence in the light most favorable to the * * * parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved * * * in favor of the (prevailing parties); (3) to assume as proved all facts which (the prevailing parties') evidence tends to prove; (4) to give the (prevailing parties) the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusion to be drawn from it. ³

Most of the historical facts are not in dispute and are well established in the lengthy record. The clinical evidence detailing the nature of the injury and the treatment that followed is largely uncontested. One important factual issue survived for the jury to resolve: whether or not Dr. Lewis took a pulse on the first night at the hospital. According to Dr. Lewis' testimony, he inspected the leg at 7:05 p. m., following a telephone report by Nurse Preston that the leg appeared mottled and cold and Voegeli could not move his toes. Lewis did not take a pulse at that time. He testified that he returned to the room alone a few minutes later, however, and checked for a pulse. ⁴ Finding one, he noted this on the chart.

As we read the record and briefs, it appears that appellants sought to cast doubt on this testimony. One of plaintiffs' experts testified that if the artery had ruptured it would not have been possible to find a pulse, although Lewis' expert, Dr. H. Phil Gross, testified that Lewis might have been misled by collateral circulation. Whether Lewis really did take a pulse and whether he actually found one are disputed issues of fact and were properly presented for jury determination. Failure to act promptly when no pulse could be found, or failure to take a pulse at all under these circumstances might well have been so flagrantly negligent that the court would need to intervene in the jury's verdict. We cannot conclude, however, on this record, that the jury could not reasonably have found Dr. Lewis to have in fact taken and found a pulse on the night of May 27.

Negligence in medical malpractice cases must be established by the testimony of medical experts. See Carlsen v. Javurek, 526 F.2d 202, 207 (8th Cir. 1975). The medical experts who testified in this case differed on whether the monitoring procedure followed by Dr. Lewis was wanting in ordinary care. Appellants' experts, Drs. Lesher, Howe, Savage, and Lichtor gave strong testimony that Dr. Lewis had departed from good medical practice by failing to follow up on the patient's symptoms: knee pain, foot and lower leg coolness, and an inability to move ankle or toes. They stressed the need for early detection of vascular impairment, which in turn calls for more intensive monitoring than was given in this case.

In defense, Dr. Lewis offered the testimony of Dr. H. Phil Gross, an orthopedic surgeon. Dr. Gross testified that a reasonably well qualified surgeon might have taken a pulse when the patient was examined upon admission to the hospital, but that "he might not have if he was convinced that the circulation was good." He testified that if he were called in, he would assess the entire patient; he would assess the leg; and he would assess the circulation, first by observation, by palpation, and by manipulation. He conceded that a plateau fracture and swelling should alert a doctor to the possibility of a laceration of the popliteal artery and that taking a pulse is one way to find out if an artery has been injured. He also agreed that pain is a symptom of lack of circulation, and that if a foot is numb or cold there is reason to suspect lack of circulation. Nonetheless, Dr. Gross testified that no rule of medicine required Dr. Lewis to take a pulse, and "if he used his clinical judgment in assessing the circulation of that leg, and felt it was adequate at the time, then I don't think there's any law or rule that holds him to take a pulse." ⁵

Dr. Lewis conceded that on his first examination he did not spend over five minutes with Voegeli. He saw some swelling but not much difference between the appearance of either leg. When he visited Voegeli later in the evening in response to the nurse's call, he was aware that Voegeli still had a cold feeling in his right leg and that the skin was cool but not blanched. He was apparently reassured, however, when he was able to find a pulse. In all, although he was the only doctor caring for Voegeli, Dr. Lewis spent about 12-13 minutes with his patient from the time Voegeli was admitted to the hospital on May 27 until Lewis gave him a physical examination and applied the cast on May 29. Lewis did not take a pulse before applying the cast because "the leg didn't appear to be that badly embarrassed. I felt there was adequate circulation." He did not think the mottled appearance of the leg was an...