Bagherzadeh v. Roeser

• Decision Date: 31 July 1987
• Docket Number: No. 84-1413,84-1413
• Citation: 825 F.2d 1000
• Parties: Abdolreza BAGHERZADEH, et al., Plaintiffs-Appellants, v. Waldomar M. ROESER, M.D., and Orthopedic Surgery Association, P.C., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1000

825 F.2d 1000

Abdolreza BAGHERZADEH, et al., Plaintiffs-Appellants, v. Waldomar M. ROESER, M.D., and Orthopedic Surgery

Association, P.C., Defendants-Appellees.

No. 84-1413.

United States Court of Appeals, Sixth Circuit.

Argued April 21, 1986.

Decided July 31, 1987.

Norman D. Tucker, Southfield, Mich., Rudolph Serra (argued), for plaintiffs-appellants.

Michelle A. Thomas (argued), Detroit, Mich., for defendants-appellees.

Before WELLFORD and NELSON, Circuit Judges, and EDWARDS, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is a medical malpractice action in which the plaintiff appeals from a judgment entered on a jury verdict in favor of the defendants, an orthopedic surgeon and the professional corporation of which the surgeon was a member. The sole question presented is whether, under Michigan law, the trial court committed reversible error in charging the jury that a doctor cannot be held to guarantee the results of his treatment. Finding no such error, we shall affirm the judgment.

On August 17, 1979, Plaintiff Abdolreza Bagherzadeh, a teen-ager, was badly injured in a car accident. He was admitted to the emergency room at St. Joseph Mercy Hospital in Ann Arbor, Michigan, and was diagnosed as having suffered a ruptured spleen, displaced fractures of the right and left femurs, and fractured cervical vertebrae. A splenectomy was performed immediately. Defendant Waldomar Roeser, M.D., an orthopedic surgeon affiliated with the hospital, thereafter began treatment for the thigh fractures by placing the plaintiff in bilateral skeletal traction.

By early October of 1979 the plaintiff's fractures had stabilized sufficiently to permit him some movement. Dr. Roeser applied cast braces to both legs. These cast braces, which incorporated aluminum bars that allowed movement of the knee joint, were removed after eleven days; the plaintiff was not tolerating the cast braces well, according to Dr. Roeser, and a return to traction seemed to be indicated. X-rays taken in late October showed significant angulation, or bowing, of the right femur.

Skeletal traction remained the method of treatment through most of November. On November 24, 1979, while still in the hospital, the plaintiff refractured his left leg. Dr. Roeser told the plaintiff and his sister that it would be best to nail the left femur, and that operation was performed the following day. The plaintiff was discharged from the hospital on crutches in mid-January of 1980. He says in his complaint that he suffered a delayed union of the left femur and malunion of the right femur, with the result that his right leg is shorter than the left.

In a deposition that was read to the jury at trial, the plaintiff's medical expert, Dr Austin Rohrbaugh, expressed the opinion that it was improper for Dr. Roeser to have applied the cast braces in early October because the braces would not adequately stabilize the fracture sites. Dr. Rohrbaugh was of the further opinion that the bowing of the plaintiff's right leg was the result of the cast bracing. The defendants, in response, presented the testimony of Dr. Thomas O'Keefe--like Dr. Roeser a clinical instructor of orthopedic surgery at the University of Michigan--who testified that treatment with cast braces following traction met the applicable standard of care. Dr. O'Keefe testified that the mobility permitted by cast braces would prevent muscle wasting and joint stiffness, and he said that in his experience patients' fractures healed more quickly when cast braces were applied. The doctor testified further that there would have been a risk of angulation of the fracture even if a "spica cast"--an alternative suggested by the plaintiff's expert--had been employed.

Dr. Roeser testified to the actual course of treatment. He said he had outlined to the plaintiff and his family the various methods by which the fractures could be treated--including application of a spica cast--but was given to understand that the spica cast was abhorrent to the family. A double hip spica cast "is a very difficult thing to tolerate, ... no question," according to Dr. Roeser's testimony.

The jury was presented with a special verdict form consisting of six questions. The first two asked whether Dr. Roeser was "professionally negligent" and whether any such negligence was a proximate cause of the plaintiff's injuries. Only if the jury answered both of those questions affirmatively was it to consider the remaining four questions, which dealt with the extent of the plaintiff's own negligence, if any, and the amount of damages. The jury answered the first question in the negative, finding that Dr. Roeser had not been professionally negligent.

Our task is to decide whether the trial court committed prejudicial error in the instructions it gave the jury in connection with the first question. Those instructions, given as part of a more general charge and coupled with detailed instructions relating to each of the remaining five questions, read as follows:

"Just because someone is injured and suffers a disability after treatment by a doctor, does not[,] without more, entitle you to hold that there was professional negligence.

"The difficulties and uncertainties in the practice of medicine are such that no one can be required to guarantee results. All the law demands is that the individuals involved bring and apply to the case in hand that degree of skill, care, knowledge and attention ordinarily possessed and exercised by practitioners of that branch of the medical profession of which that person practices under like circumstances. The mere fact that an adverse result may occur following orthopedic treatment is not in itself any evidence of professional negligence.

"The mere fact that the plaintiff may have experienced a complication, in and of itself, is not[,] without other evidence, sufficient proof to support a finding that the defendants were professionally negligent.

"When I use the words 'professional negligence', I mean the failure to do something which an orthopedic surgeon of ordinary learning, judgment or skill in orthopedics would do, or the doing of something which an orthopedic surgeon of ordinary learning, judgment or skill would not do, under the same or similar circumstances you find to exist in this case.

"In determining what an orthopedic surgeon of ordinary learning, judgment and skill would or would not do you should look at the evidence as it relates to the standard of practice of orthopedic surgeons.

"The standard of practice applicable to the defendant in this case is a national standard applicable to orthopedic...