Aetna Life Ins. Co. of Hartford, Conn. v. Maxwell, 4133.

Decision Date17 April 1937
Docket NumberNo. 4133.,4133.
Citation89 F.2d 988
PartiesÆTNA LIFE INS. CO. OF HARTFORD, CONN., v. MAXWELL.
CourtU.S. Court of Appeals — Fourth Circuit

J. Campbell Palmer, III, of Wheeling, W. Va. (Hale J. Posten, of Morgantown, W. Va., Erskine, Palmer & Curl, of Wheeling, W. Va., and Posten, Glasscock & Posten, of Morgantown, W. Va., on the brief), for appellant.

Charles T. Herd, of Morgantown, W. Va. (Kermit R. Mason, of Morgantown, W. Va., and Frank A. O'Brien, of Wheeling, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

This action at law was brought by the infant plaintiff, William Maxwell, by his father and next of kin, against the Ætna Life Insurance Company to recover damages for the loss of a leg occasioned by the negligent treatment of Dr. W. H. Howell, physician and surgeon, who was called in after the leg had been broken in an automobile accident. The doctor was covered by a group policy of insurance issued by the defendant to the Monongalia County Medical Society of which he was a member. The policy provided that the insurance company upon notice would defend and indemnify each assured in the sum of $25,000 against loss and expense arising against claims for damages on account of any malpractice or mistake alleged to have been committed during the policy period; and that the insolvency or bankruptcy of the assured would not relieve the company from any payment for which it would otherwise be liable under the policy; and if, because of such insolvency or bankruptcy, an execution on a judgment recovered in a suit against the assured should be returned unsatisfied, the judgment creditor should have the right to recover the amount of the judgment against the company to the same extent that the assured would have had to recover against the company had he paid the judgment, but not in excess of the limits expressed in the policy.

The sixteen year old plaintiff was struck by an automobile on the night of March 25, 1932, and suffered a simple comminuted, slightly oblique fracture of the middle third of the right femur, with an overlapping of the bones of two and one-half inches. Dr. Howell had charge of the case from March 26 to August 7, 1932, when he was discharged. The policy of insurance, however, was not issued until July 23, 1932, and this date is important, because the defense is that the malpractice or neglect, which the physician was subsequently found to have committed, took place during the prior period and hence was not covered by the policy.

This finding was made in an action of law brought by the infant plaintiff against the physician in the circuit court of Monongalia county, W. Va., wherein it was charged that the physician was guilty of such malpractice and neglect throughout the period of his employment that it became necessary to amputate the plaintiff's leg. Due notice of this suit was given to the insurance company, and the company, having entered into a nonwaiver agreement to preserve its right to deny liability under the policy, participated in the defense of the case, at least as to the period covered by the policy. The jury found a verdict for the plaintiff in the sum of $6,000, and the judgment based thereon was affirmed on appeal by the Supreme Court of Appeals of West Virginia in Maxwell v. Howell, 114 W.Va. 771, 174 S.E. 553. Execution on the judgment was returned unsatisfied because the defendant had gone into bankruptcy, and subsequently the pending action was instituted in the state court and removed to the District Court below on the ground of diversity of citizenship. In this action a verdict was rendered for the plaintiff against the insurance company for the sum of $4,022.67, which the jury found to be the damages suffered by the plaintiff through the malpractice and neglect which occurred during the policy period, and also for the sum of $121.90, the amount of the court costs in the action in the state court.

The plaintiff's evidence in the pending case consisted of the transcript of evidence taken at the previous trial against the physician and disclosed in substance the following medical history of the case: An X-ray of the injured leg was taken on March 26, the day after the accident, and preparations for the reduction of the fracture were made. On March 31 the physician made a ten-inch incision of the thigh and reduced the fracture by placing the ends of the bones in juxtaposition and inserting in each of them a beef bone peg. The wound was then sewed up. A bandage was applied and a four-foot board, running from the hip to the ankle, was used as a splint. Sandbags were placed alongside the leg to keep it immobile. Four days later there was an abnormal rise of temperature, indicating infection. Nine days after the operation, the stiches were removed and unmistakable signs of infection were disclosed at the place of the incision. Nothing was done to relieve this infection until April 13, when the splint was removed. On April 15 the wound was opened and drained of pus, and drainage continued until April 30, after which irrigation was resorted to and maintained. About May 1 it was apparent that the bones were not in place. On May 10 the first X-ray after the operation was taken. Thereafter and until June 24, when the second X-ray was taken, the wound was occasionally drained, irrigated, and dressed. The last X-ray showed an angulation of the fragments of the bone and a five-inch overlap of the bones with some absorption and decay. During this period the temperature remained extremely high except on a few occasions when it was subnormal. Draining, irrigation, and dressing continued until July 18 when, a pocket of pus having been formed, the wound was again opened and drained. With regard to the period from May 10 to July 18, the evidence was conflicting as to whether the doctor had visited his patient with sufficient frequency. From July 18 to August 7 the physician visited the patient every day except for the period from July 25 to 28, during which another physician was substituted. After July 23, there was a continuous drop of temperature until August 7, when it became practically normal. On August 7 the doctor was discharged and another surgeon took the case who four days later, after consultation with several other local physicians, amputated the leg just below the hip.

The plaintiff charged in his suit against Dr. Howell that the course of treatment above described involved maltreatment or neglect in a number of particulars, most of which it will be observed occurred before the policy of insurance went into effect. Amongst other things it was alleged in the bill of particulars that the physician did not proceed to reduce the fracture as speedily as possible; that he failed to try to reduce the fracture by nonoperative methods; that he did not properly prepare the leg for the operation; that he should not have used a bone peg in the open reduction of the fracture; that he failed to apply a proper splint after the operation; that he failed to take a postoperative X-ray to see if the bone was properly set; that as a result of these mistakes and of neglect after the operation for 10 days the wound became infected; that the treatment of the infection was negligent; that the physician was negligent also in his treatment for 16 weeks after the operation, that is, from March 31 to July 22, one day before the policy went into effect; that during the period from March 31 to August 1 the physician failed to visit the plaintiff for long periods of time, as long as 8 days, and failed to do anything to treat the infection properly and, although the X-ray pictures taken 6 weeks after the operation showed the fragments of bone to be in a position in which they could not heal, he failed to treat the patient properly or to use any method to reduce the fracture; and that, as a result of the neglect, amputation of the leg became necessary. All of these particulars related to the period anterior to the policy except those that charge a failure to give proper treatment or attention in the period ending August 1, of which period only the last 10 days were covered by the policy.

The plaintiff introduced the evidence of a number of physicians to support the charges of negligence, particularly that it was improper to perform an open reduction operation until all closed methods had been exhausted; that the splint used was not a proper one; that a postoperative X-ray should have been promptly taken; and that, when infection developed, there should have been an immediate incision and forcible drainage, as well as daily visits by the physician. On the part of the defendant, evidence was submitted to show that he had followed approved methods and practice, and had not been negligent, and that at the time of his discharge from the case it was his intention first to clear up the infection, then discharge the patient from the hospital and build up his physical condition, and then stretch the muscles and restore the femur by a bone graft operation.

Such was the character of the evidence in the case against the doctor in the state court, and, since he was responsible for the consequences of his neglect whenever it occurred, no attempt was made to distinguish between the period before and the period after the policy became effective. But, when all of the testimony in this trial was introduced in the pending case against the insurance company, the distinction became important, and therefore the insurance company offered in its defense the testimony of several physicians to show that, if any malpractice occurred, it took place during the first 6 weeks after the injury, and that from July 23 to August 7 the treatment was proper and did not contribute to the damage suffered by the plaintiff, and that the treatment during these 16 days should have been continued to a point where the fracture could have been reduced and the amputation...

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