Atkins v. Humes
| Decision Date | 03 September 1958 |
| Docket Number | No. 394,394 |
| Citation | 107 So.2d 253 |
| Parties | Frank B. ATKINS and Rebecca Atkins, an infant, by Frank B. Atkins, her father and next friend, Appellants, v. Karl T. HUMES, Appellee. |
| Court | Florida District Court of Appeals |
Dayton, Dayton & Luckie and Norma Jean Wagner, Dade City, for appellants.
P. B. Howell, Bushnell, and Savage & Mills, Ocala, for appellee.
The trial judge in a malpractice action granted summary judgment for appellee, a medical doctor engaged in the practice of his profession in Bushnell. The basis for the action was a permanent injury to the infant-appellant's arm and hand as the result of alleged negligent treatment by appellee. The judgment thus entered is the source of this appeal.
A uniformly recognized definition of "Malpractice,' as the term is used with reference to physicians and surgeons, is bad or unskillful practice on the part of a physician or surgeon resulting in injury to the patient'. Negligence when applied to malpractice by a physician or surgeon 'has been said to consist in his doing something which he should not have done or omitting to do something which he should have done, or his failure to exercise the required degree of care, skill, and diligence'. 70 C.J.S. Physicians and Surgeons § 40, pp. 945, 946.
The record consists of the pleadings, affidavits, and several depositions. A condensation of the material facts substantially reveals that: On December 17, 1955, the infant suffered a supercondylar fracture of the left humerus in the elbow. She was brought to appellee's office for treatment within an hour of the injury. Appellee reduced the fracture by closed reduction. Fluoroscopy and x-rays were used before and after reduction, and alignment of the bone was very good. Two layers of sheet wadding were applied to the arm, and felt protective pads were placed over the olecranon process at the elbow and over the styloid processes of the radius and ulna at the wrist. The arm was maintained at a 45 degree angle but was not hyperflexed. A cast was formed of four layers of plaster of paris to immobilize the injured bones, care being taken not to apply the plaster too tightly. Tissue trauma from reduction was minimal.
On December 28, before the removal of the cast, appellee left on vacation and the child was taken to the out-patient clinic of the Orlando Air Force Base Hospital for medical treatment not connected with the arm injury. She was examined by Dr. Rosenbaum a pediatrician, who suggested that she be examined by Dr. W. H. Miller, chief of surgery at the Air Force hospital, as to the left arm.
On January 19, 1956, appellee, upon removing the cast, found a sore of about the size of a quarter between the child's elbow and wrist. There resulted from the sore what is known as a Volkmann's contracture. Basically, this is a contracture of the muscles which flex the fingers and hand and which results in what is commonly known as a 'claw hand'. On discovery of the sore and the resulting impairment of mobility of the child's hand, appellee prescribed physiotherapy; and this being unsuccessful, on February 1, 1956, he recommended that the child be taken to a specialist for treatment.
The appellee in his deposition indicates that elbow fractures are known to cause Volkmann's contracture more than any other arm fractures and that he was aware of the danger of this development; that such contracture can come from several different causes leading generally to a decreased blood supply to a particular area; that among the possible causes are arterial spasm, arterial constriction by the broken bone, hematoma, thrombus, embolus, constricting bandages, and veinous obstruction. Warning signs of Volkmann's contracture such as excessive pain, swelling, discoloration, and inability to flex the fingers were not apparent to appellee before or after application of the cast; and it was not until January 19, 1956, on removal of the cast, that functional impairment of the child's fingers caused him to suspect the occurrence of this malady.
From February 2 to February 29 the patient was under treatment by Dr. W. H. Miller, who determined by x-ray that the fracture was in good position and alignment. Physiotherapy treatment was given and he did not suspect a contracture until Flbruary 5, 1956. Having examined the child while her arm was in a cast, he testified that the cast was in good condition, that it held the arm in good position, that the fingers of the hand were pink and warm, that he noticed no difficulty by the child to flex her fingers, that she did not complain, and that the fracture healed so as to give a satisfactory joint. When the child was again brought to him on February 2, 1956, after removal of the cast she could move her fingers but could not extend them completely. He could not give an opinion of the specific cause of the sore on the arm. He testified further that there are several possible causes of Volkmann's contracture, that immediate reduction is the best way to prevent it, that a cast of the type applied by appellee was a very good method of treatment of the type fracture involved, that Volkmann's contracture can occur without a cast, that a tight bandage or cast rarely causes contracture, and that his examination of the child during and after the time when the cast was on her arm disclosed in his opinion no negligent nor improper treatment by appellee.
On February 29, 1956, the patient was referred to Dr. Royston Miller, under whose care physiotherapy and an operation to remove scar tissue where the sore healed have largely reduced the amount of injury, giving the child a useful hand. He testified that the infant suffered a Volkmann's contracture as a result of the sore which could have been caused by swelling following fracture of the elbow, by a marked amount of internal bleeding into a muscle group, by the cast having been applied too tightly, as well as by other possible causes; that fracture blisters occur quite frequently; and that fractures of a type which the child sustained are customarily treated by application of a plaster of paris cast. Basing his opinion on the history of the child, he felt that the contracture was not obvious until removal of the cast; and, insofar as he could determine, in his opinion, treatment of the child had been proper. It was his impression that this contracture was one that gradually developed and did not come on immediately after the reduction of the fracture.
There are affidavits by lay witnesses and deposition testimony of the parents to the effect that during the time the cast was on the child's arm the fingers of her hand were sold, swollen, discolored, that she suffered pain in her arm, and that there were the indentations or prints of three fingers on the cast above the point where the sore formed on the child's arm.
The focal and predominant question posed by appellants is whether a genuine issue of material fact was raised by the pleadings, depositions, and affidavits so as to preclude summary judgment. Appellants in their brief state that they do not question the method of treatment the appellee chose. Their position is (1) that the appellee negligently applied the cast too tightly to the infant's arm, and (2) that appellee was negligent in failing to heed the classic warnings of Volkmann's contracture while the cast was on the child's arm.
It is incumbent upon a physician or surgeon to utilize reasonable care, skill, and diligence in diagnosis and treatment of his patient; and failure to possess the requisite skill or to exercise these requisite standards of skill, care and diligence may render him liable for resulting injuries. 41 Am.Jur., Physicians and Surgeons, section 79, p. 198 and section 82, pp. 200-202; 70 C.J.S. Physicians and Surgeons § 48, pp. 955-958, and Saunders v. Lischkoff, 1939, 137 Fla. 826, 188 So. 815. A physician or surgeon is not, however, a guarantor of the correctness of his diagnosis or of a cure and will not be held liable where he has employed reasonable skill and care in determining the diagnosis and has administered proper treatment without negligence, even though the desired results do not ensue. Hill v. Boughton, 1941, 146 Fla. 505, 1 So.2d 610, 134 A.L.R. 678.
The overpowering authority is that generally expert testimony is necessary to sustain a malpractice action against a physician or surgeon. Annotation 141 A.L.R. 6; and Foster v. Thornton, 1936, 125 Fla. 699, 170 So. 459. An exception to this general rule is applied in cases where want of skill or lack of care on the part of the physician or surgeon is so obvious as to be within the understanding of laymen and to necessitate only common knowledge and experience to judge it. In such cases, expert evidence is not required. Annotation 141 A.L.R. 12. This exception is stated very clearly and concisely in 41 Am.Jur., Physicians and Surgeons, section 129, pp. 240-241:
...
To continue reading
Request your trial