Anderson v. Nixon

• Decision Date: 24 June 1943
• Docket Number: 6524
• Citation: 104 Utah 262,139 P.2d 216
• Court: Utah Supreme Court
• Parties: ANDERSON v. NIXON

139 P.2d 216

104 Utah 262

ANDERSON v. NIXON

No. 6524

Supreme Court of Utah

June 24, 1943

Appeal from District Court, Fourth District, Utah County; Abe W Turner, Judge.

Action by Clayton Anderson against Dr. James William Nixon to recover for alleged negligent treatment which resulted in loss of plaintiff's left leg. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Judd Ray, Quinney & Nebeker, of Salt Lake City, for appellant.

Woodrow D. White, of Salt Lake City, for respondent.

WADE Justice. McDONOUGH, J., WOLFE, Chief Justice, LARSON Justice, concurring. MOFFAT, Justice, concurring in the order.

OPINION

WADE, Justice.

Clayton Anderson, plaintiff, sued Dr. James William Nixon, defendant, for damages for alleged negligent treatment which resulted in loss of plaintiff's left leg. From a judgment in favor of plaintiff, defendant appeals.

On November 30, 1937, plaintiff received a deep puncture wound and abrasions on the back of his hand as the result of a coyote bite. On December 2, 1937, he employed defendant, who is a licensed physician practicing in Castle Dale, Emery County, Utah, to treat this injury. Plaintiff called daily at defendant's office for about seven days to receive treatments. During this period the condition of his hand and general physical well being became progressively worse. On December 10, 1937, he was no longer able to call on defendant, his left leg having begun to ache, and thereafter defendant called on him at his home. Plaintiff's hand was causing him a great deal of anguish, and his left leg just below the knee was beginning to swell and ache. Defendant diagnosed the trouble of his leg as rheumatism and prescribed internal and external use of wintergreen. Plaintiff failed to respond to this treatment and as the days went by the swelling in the leg increased and the pain became excruciating. The hand in the meantime had begun to mend somewhat. Plaintiff's suffering did not abate but increased, however, defendant insisted he was getting along fine, but did order a heat pad to be applied to plaintiff's leg. This was done but plaintiff continued to get progressively worse. He could not sleep or rest and finally became delirious. On December 19, 1937, some kindly neighbors, no longer being able to bear seeing plaintiff's suffering, placed him in a car and drove him to a hospital in Price, Utah, which is about 30 miles distant from Castle Dale, Utah, there being no hospital in Castle Dale, Utah.

At the hospital Dr. Hubbard took charge of plaintiff and discovered that he had osteomyelitis of the left tibia. An operation was performed, this being the approved treatment in 1937, in that vicinity. Plaintiff's recovery was poor; at the end of four months he was removed to the Veteran's Hospital in Salt Lake City, Utah, where he remained for over a year. By this time he had developed chronic osteomyelitis. About a year later he was admitted to the Marine Hospital in San Francisco, California, where his leg was amputated at the junction of the middle and lower thirds of the femur.

It is plaintiff's contention that the defendant was negligent in the following particulars: (1) failure to diagnose his condition correctly as general septicemia and acute osteomyelitis in the left tibia, he having all the symptoms on December 10, 1937; (2) failure to timely hospitalize and operate; and (3) failure to give blood transfusions, all of which contributed to plaintiff's loss of his leg.

For the purpose of determining whether the evidence was sufficient to sustain plaintiff's contentions, the jury having found in his favor, this court will consider as true where there is any conflict in the evidence that which is most favorable to plaintiff's position.

The evidence showed that defendant was employed by plaintiff to treat him for the injury to his hand; that he accepted such employment, and on the first visit treated him by placing a "wick", composed of gauze in the puncture wound to aid drainage, cleansing, dressing, and bandaging the hand; that he continued this treatment for several days; that the hand became more swollen and painful; that he allowed plaintiff to come to his office for treatments; that he did not advise him to go to bed and rest; that by December 10, 1937, plaintiff's general condition had become much worse and by that time he complained of a pain below the knee and was unable to leave his home so that defendant was obliged to come to his home to see him; that plaintiff's temperature had risen considerably; that defendant diagnosed the pain in the knee and leg as rheumatism and prescribed wintergreen to be taken internally and also applied externally; plaintiff's pain failing to abate he prescribed a hot pad to be placed on the leg and knee. Plaintiff continued having chills and fever, his temperature remaining extremely high, his pain more excruciating, his hand, leg and knee becoming more swollen. The doctor prescribed milk poultices for the hand. Plaintiff's condition continued to become progressively worse. His family suggested hospitalization and defendant said it was unnecessary.

In malpractice cases, whether a physician or surgeon is negligent in the treatment of a patient depends upon whether he has used or failed to use the ordinary care and skill required of doctors in the community which he serves. Edwards v. Clark, 96 Utah 121, 83 P.2d 1021; Baxter v. Snow, 78 Utah 217, 2 P.2d 257. What is the ordinary care and skill required of a doctor in the community in which he serves must necessarily depend upon expert testimony.

There was expert testimony in this case that a physician who used the ordinary skill, care and knowledge required of him in Castle Dale, Utah, in 1937, would have known from the symptoms of plaintiff's illness and his case history that he was suffering from a general blood stream infection and that osteomyelitis should have been suspected. The proper treatment for septecemia at that time and place was to put the patient to bed and see that he had plenty of rest, liquids, and a good diet; that the patient be made as comfortable as possible because it is while the patient is sleeping or resting that the body is best able to combat a bacterial infection in the blood stream.

Defendant did not instruct plaintiff to remain in bed and rest, neither did he prescribe plenty of fluids and a proper diet. When plaintiff complained of pain in his knee and leg defendant diagnosed it as rheumatism and prescribed a treatment for that ailment. Did this constitute negligence?

In Schwartz v. Zellmer, 209 Wis. 583, 245 N.W. 585, 586, the plaintiff had been in an automobile accident and employed the defendant, a doctor, to treat him for the injuries which he had sustained. The defendant examined him and found that his wrist was dislocated and the back of his hand lacerated, the lacerations extending through the tendons but not to the bone. The ligaments of the wrist were torn but not the tendons. Defendant treated the hand, reduced the dislocation and put the arm in a splint made to fit the lower portion of the hand and forearm. Two days later plaintiff called defendant's attention to the fact that his bones were scraping. Defendant said no bones were broken. Two weeks later, the plaintiff continuing to have trouble, an X-ray was taken which disclosed the radius was broken. By that time there had been a union of bones, but not in a straight line. There was expert testimony that the X-ray is the usual and customary method adopted by physicians practicing in the same vicinity to diagnose a fracture and to check the progress of the healing.

In holding that there was sufficient evidence to go to the jury on the question of negligence, the court there said:

"It is based upon evidence disclosing, or at least open to the conclusion or inference, that defendant did not adopt the methods of diagnosis and treatment that were customary and accepted in the vicinity where he practiced."

In Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850, it was held that it was negligence for physicians to fail to apprise themselves of symptoms which are present and to diagnose and correctly treat the patient on the basis of those symptoms. Regardless of what skill is used, if a doctor fails in his duty to observe and discover a patient's illness, he is negligent.

In the instant case we believe there is sufficient evidence for the jury to find that Dr. Nixon was negligent in having failed to properly observe plaintiff's condition and in failing to correctly treat him for a staphylococcus infection by failing both before and after December 10th to prescribe that he remain in bed and rest, take plenty of fluids and eat proper food, that being the treatment which a doctor practicing in the vicinity of Castle Dale, Utah, at the time, would have prescribed for a blood stream infection.

The next question to be determined is: Was defendant negligent in failing to timely hospitalize and operate upon defendant? The record discloses that immediately after plaintiff was brought to the hospital X-rays were taken of his leg and knee. These X-rays did not disclose any abnormality and therefore an exploratory operation was performed on the knee and tibia. Osteomyelitis was discovered in the upper tibia, about four or five inches being involved. Experts testified that the disease at that time was not in an advanced stage because the X-rays did not show any bone involvement. Osteomyelitis is a pusforming disease which causes decalcification, and the length of time it takes to destroy the bone depends upon the virulence of the attacking bacteria. From the fact that only four or five inches of the tibia had been involved at the time of the operation, the...