DeWitt v. Brown
| Decision Date | 27 January 1982 |
| Docket Number | No. 80-1950,80-1950 |
| Parties | 9 Fed. R. Evid. Serv. 1217 Howard R. DeWITT, Appellee, v. Byron L. BROWN, M.D., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
P. H. Hardin (argued), Hardin, Jesson & Dawson, Fort Smith, Ark., for appellee.
Richard B. Shaw (argued), Shaw & Ledbetter, Fort Smith, Ark., for appellant.
Before HENLEY and ARNOLD, Circuit Judges, and BECKER, * Senior District Judge.
This is an appeal by appellant Dr. Byron L. Brown (Dr. Brown) from a judgment against him for $330,000.00 in favor of appellee Howard R. DeWitt (DeWitt) entered upon a jury verdict in the United States District Court for the Western District of Arkansas. (Designated Record, (R.), 118, 119).
The jury verdict was rendered in a civil action filed by DeWitt and Carole DeWitt (Mrs. DeWitt), husband and wife, in the District Court against Dr. Brown and the insurer of St. Edwards Mercy Medical Center (St. Edwards), to recover damages for injury to DeWitt and loss of consortium by Mrs. DeWitt alleged to have been caused by the negligent medical treatment of DeWitt by Dr. Brown and St. Edwards. (R. 1-5, 17-21).
Because the jury verdict was in favor of appellee DeWitt, the facts will be stated in the light of the evidence, and the reasonable inferences therefrom, most favorable to the appellee. Zoll v. Eastern Allamakee Community School District, 588 F.2d 246, at 250 (C.A. 8 1978); Raney v. Honeywell, Inc., 540 F.2d 932, at 934-935 (C.A. 8 1976); Garoogian v. Medlock, 592 F.2d 997, at 999-1000 (C.A. 8 1979).
On June 23, 1976, DeWitt, an employee of the Bedford Brothers cattle ranch, was preparing to confine to a pen and spray cattle. While so engaged, DeWitt attempted to rope a cow; the horse DeWitt was riding fell, and DeWitt's left leg was injured. At about 8:00 p. m. on June 23, DeWitt was taken to the emergency room at St. Edwards in Fort Smith, Arkansas where DeWitt was examined by Dr. Brown. Dr. Brown is an orthopedic surgeon practicing in Fort Smith, Arkansas who has not been board certified or board qualified in orthopedic surgery.
Dr. Brown diagnosed the injury as a "comminuted" (broken in several pieces) fracture of the fibula and the tibia bones of the lower left leg, and surgically attempted to reduce the fractures. Two transverse metal Steinmann pins were placed through the left leg, inserted in the tibia bone and incorporated in a "short" plaster cast which encased the lower left leg below the knee except for the toes.
An X-ray taken after the cast was applied showed an improper alignment of the bones, so Dr. Brown "circularized" the cast (cut the cast open around the leg), "wedged" the cast (spread the cast open at the front of the left leg at the point of "circularization"), corrected the alignment and repaired the cast.
At about 10:30 p. m. on June 23, DeWitt was moved from the operating room to a recovery room. DeWitt began complaining of substantial pain in his left leg at about 11:25 p. m. on June 23, and repeatedly complained of pain in his left leg during that night and the following morning of June 24. On June 24, Dr. Brown examined DeWitt at about 12:15 a. m. and at sometime between 8:00 a. m. and 9:30 a. m. and concluded that DeWitt's condition was satisfactory.
At about 8:00 a. m. on June 24, the toes of DeWitt's left foot had poor "toe wiggle", loss of sensation and were cool, puffy and blue. At about noon on June 24, the toes had poor movement and were cold, blue and very puffy.
Sometime between 10:00 and 11:00 a. m. on June 24, the visitors of DeWitt in his hospital room became worried about the condition of DeWitt's left leg and from about 10:00 a. m. or 11:00 a. m. to 2:00 p. m. on June 24 repeatedly requested that Dr. Brown be located by the staff of St. Edwards and that Dr. Brown examine DeWitt's left leg.
As a result, from about noon to 2:00 p. m. on June 24, Dr. Brown received two or three telephone calls in the emergency room at St. Edwards where he was attending another patient. By the telephone calls, Dr. Brown was informed that DeWitt was in pain; that a visitor of DeWitt was asking for Dr. Brown; that a visitor of DeWitt had attempted to alleviate the pain of DeWitt at about 2:00 p. m. by removing a 2 or 3 inch piece of cast from above the toes; and that the toes on DeWitt's left foot had become dark blue.
At about 2:00 p. m. or 2:30 p. m. on June 24, Dr. Brown returned to the hospital room of DeWitt, examined DeWitt's leg, saw that DeWitt's left foot and toes were swollen concluded that DeWitt had severe "cyanosis" (a dark blue color) of the toes caused by decreased circulation of oxygenated blood in and to the lower left leg, and attempted to alleviate this condition by splitting and spreading the cast open halfway up the front. Dr. Brown thought that the swelling and the color of the toes had then improved. Dr. Brown left DeWitt's hospital room, returned in about 30 minutes, concluded that the condition of the left leg was worse, split the cast completely open up the front and spread the cast as far as he could. Dr. Brown again thought that the color of the toes had improved. Dr. Brown left DeWitt's hospital room, returned in about 30 minutes, concluded that the condition was still unsatisfactory and removed a piece of the cast from each side of the leg. Thereafter on June 24 at examinations of the left leg at about 5:00 p. m., 9:00 p. m. and 11:30 p. m. Dr. Brown concluded that the condition of the left leg was "stable".
On the following morning, June 25, DeWitt was still in substantial pain. Thinking that the condition of his left leg was worse and following the advice of his employer, DeWitt decided to change doctors. His case was transferred to Dr. Alfred Hathcock (Dr. Hathcock), a specialist in orthopedic surgery from the Holt-Krock Clinic in Fort Smith, Arkansas.
Dr. Brown was notified of the intent of DeWitt to change doctors at about 8:00 a. m. on June 25, and attempted several times from about 9:00 a. m. to about 11:00 a. m. to discuss the condition of DeWitt's left leg with a doctor from the Holt-Krock Clinic. Dr. Brown discussed the matter with Dr. Hathcock by telephone at about 11:00 a. m. on June 25.
Dr. Hathcock first examined DeWitt at about 2:00 p. m. on June 25. Dr. Hathcock concluded that DeWitt might have some "circulatory embarrassment" (poor circulation of blood) to his left foot, transferred DeWitt to an operating room, removed the cast and Steinmann pins and ordered an "arteriogram" which showed that the circulation to the lower left leg was obstructed. Dr. Hathcock diagnosed the condition as a "compartment syndrome" and performed a "fasciotomy" which immediately restored the circulation.
DeWitt was released from St. Edwards on July 31, 1976. His left leg was in a cast until December 1976, and thereafter in a leg brace for about six months. DeWitt returned to his former position of employment at Bedford Brothers at about a year after his release from St. Edwards. Since then DeWitt has daily pain in his left leg and recurring muscle spasms in his left calf; he has numerous scars on his left leg, and an unhealed pressure sore on his left heel; he has a claw toe deformity (drawn toes) of the left foot and walks with a "drop foot gait" ("slaps" or "flops" his left foot); he has diminished size, sensation, temperature and strength in his left leg; he has "paresthesia" (a tingling sensation) of the lower left leg; he has diminished range of motion of the left ankle; and the permanent impairment to his lower left leg has been estimated at 45% to 100%.
At the time of his trial, DeWitt had incurred medical expenses for the past treatment of his injuries in the amount of $9,587.80; he was 29 years old and had a life expectancy of 41 years; he was married and had a daughter who was 7 years old; he had a high school education; and his only work experience had been in working with livestock, building fences and other manual type labor. At the time of his trial, DeWitt was employed by Bedford Brothers, and his salary was $800.00 a month. The Bedford brothers are DeWitt's father-in-law and the brother of DeWitt's father-in-law. DeWitt has been unable to perform his duties at work to the extent he performed them prior to the injury; and because of the damage to the left leg, DeWitt is not hireable as a ranch hand in the cattle business by others than Bedford Brothers.
On January 18, 1978, DeWitt and Mrs. DeWitt filed a civil action in the United States District Court for the Western District of Arkansas against Aetna Casualty and Surety Company (Aetna). (R. 1). Their complaint alleged that the negligence of St. Edwards, "its servants, agents and employees" caused injury to DeWitt and loss of consortium by Mrs. DeWitt; that St. Edwards was insured by Aetna for liability resulting from injury to the patients of St. Edwards; and that Aetna was, therefore, directly liable to DeWitt and Mrs. DeWitt for damages. (R. 1-5).
On June 23, 1978, the complaint was amended to join Dr. Brown as a defendant and to allege that the injury to DeWitt and the loss of consortium by Mrs. DeWitt were caused by the negligent medical treatment of DeWitt by Dr. Brown. (R. 17-21). By Answer, Dr. Brown denied the allegations in the complaint, and in a counterclaim alleged that he was owed $270.00 in medical bills unpaid by DeWitt. (R. 23-24).
A jury trial was commenced on September 3, 1980. At the conclusion of the plaintiffs' case, the District Court directed a verdict for Aetna and against DeWitt and Mrs. DeWitt (Transcript, (Tr), 703, 709-710; R. 111), and by Order entered September 5, 1980, ordered and adjudged that DeWitt and Mrs. DeWitt recover nothing from Aetna and that their complaint against Aetna be dismissed (R. 117).
At the conclusion of the...
To continue reading
Request your trial
-
Clark v. Chrysler Corp.
... ... that the damages award is excessive or insufficient where the party has failed to allow the district court to rule on the matter."); DeWitt v. Brown, 669 F.2d 516, 524 (8th ... Page 599 ... Cir.1982) (citations omitted) (noting that the "inadequacy or excessiveness of a verdict is ... ...
-
McCabe v. Mais
...as to shock the judicial conscience.'" DeFranco v. Valley Forge Ins. Co., 754 F.2d 293, 296 (8th Cir. 1985) (quoting DeWitt v. Brown, 669 F.2d 516, 524 (8th Cir.1982)). In other words, "[a] new trial may not be granted on the grounds that a jury's verdict is excessive unless the court concl......
-
Jones v. Wal-Mart Stores, Inc.
...Inc., 562 F.2d 518, 522 (8th Cir.1977) and both the federal and state standard when they are essentially identical, DeWitt v. Brown, 669 F.2d 516 (8th Cir.1982). The settled Fifth Circuit standard is binding in this case.The appellants claimed at oral argument that Texas law merely requires......
-
Shepherd v. Callahan
...is appropriate where a reviewing court considers the sufficiency of evidence to support a jury's verdict, see. e.g., DeWitt v. Brown, 669 F.2d 516, 523 (8th Cir.1982) ("a jury verdict will be sustained so long as there is `substantial evidence' or `a reasonable basis in fact' for the jury's......