Bartholomew v. Butts

• Decision Date: 11 August 1942
• Docket Number: 45597.
• Citation: 5 N.W.2d 7,232 Iowa 776
• Parties: BARTHOLOMEW v. BUTTS et al.
• Court: Iowa Supreme Court

5 N.W.2d 7

232 Iowa 776

BARTHOLOMEW v. BUTTS et al.

No. 45597.

Supreme Court of Iowa

August 11, 1942

Rehearing Denied Nov. 20, 1942.

Robert Buckmaster, of Waterloo, for appellant.

McCoy & Beecher and Reed & Beers, all of Waterloo, for appellees.

GARFIELD Justice.

Plaintiff, a nine year old boy, broke his right arm above the elbow. Doctors called it a supra condylar fracture. The injury occurred on Saturday, August 21, 1937, about 5:30 p. m Plaintiff was promptly taken to a Waterloo hospital where the arm was set by Dr. Seibert and a Dr. Dunkelberg. The right hand was placed against the right shoulder the forearm against the upper arm, and held in that position of acute flexion by tape applied to the arm and body. Ivan's mother testified "it was done up awful sharp." She further testified: "Dr. Seibert said he didn't have a jagged break; it would set all right; he would be all right, there wasn't anything to worry about." The next day, Sunday, the boy was returned to his home from the hospital. The parents asked Dr. Seibert about future treatment and the doctor said to bring the boy to his office only if the arm hurt or bothered him. It is not claimed the fracture was not properly reduced but complaint is made of the subsequent treatment.

The boy was kept quiet at home for the next few days, with his arm in the same position of acute flexion in which Dr. Seibert had placed it. The following Thursday evening he complained that his arm hurt him. The next morning, Friday, his arm and hand were swollen and puffed so that the tape was cutting into his flesh until it bled, his fingernails were blue, "his elbow was swollen as big as his knee." His mother took him right to Dr. Seibert's office. All the doctor did was to apply more tape to hold the arm in place and direct the mother "to take Ivan home and put ice packs on his arm for three days and keep him in bed." These directions were followed but the arm did not improve.

On the following Tuesday, ten days after the injury and after ice packs had been applied for three days as directed, the boy was returned to the doctor's office, when an X-ray was taken. The tape was cut so that the hand could be lowered about two inches. No tape was removed but more was added. Dr Seibert told the mother on this visit "that Ivan had a slight contracture. He said there was nothing much a person could do, just let it heal, and wait until the swelling went down." For three to four weeks more the boy was taken to the doctor's office about twice a week. The mother, the stepfather, and Ivan all testified the tape was never removed nor loosened from the arm during this period of five weeks following the fracture and no other treatment was applied except that more tape was added on nearly every visit.

Finally, five weeks after the fracture, Dr. Seibert for the first time removed the tape that had held the arm in acute flexion.

When the tape was taken off much of the skin and flesh came off with the bandage; "great gobs of pus was laying there on the tape, and his arm was just one mass of it." Dr. Seibert "took some gauze and cleaned off the worst of it and told (the mother) to take Ivan home and wash it off with soap and water." The doctor put no dressing on the arm at this time. Before the tape was removed, "Ivan's hand began to take funny shape, didn't look like a hand, began to draw down, and some of his nails came off." The mother asked Dr. Seibert about this condition and was told that the boy would have to go to the University Hospital at Iowa City "for a little correction." It was not until January that the sores caused by the bandages healed so that Ivan could be taken to Iowa City.

On January 13, 1938, the boy was taken to the University Hospital where he stayed for six months. An operation was performed. Before the trial in May, 1940, Ivan had returned to the University Hospital nine more times, once for four months, again for three months, for five weeks, and for shorter periods. Three serious operations were performed on these visits to Iowa City. At times he suffered great pain. Constantly, day and night, for more than two years prior to the trial, he wore a brace or corrective apparatus except when his arm was in a cast or being operated on. "Ivan cannot do very much of anything. He is just like when he was a baby to take care of. Have to bathe him, spread his bread and cut his meat."

This suit was brought against Dr. Seibert and his partner Dr. Butts, claiming that plaintiff's permanently deformed arm and hand were caused by negligent treatment of Dr. Seibert. At the close of plaintiff's evidence, defendants moved for a directed verdict because the evidence was insufficient to prove either negligence or proximate cause. The court sustained the motion and plaintiff has appealed. The principal matter before us is whether the record presents a jury question on negligence and proximate cause.

Upon the trial appellees conceded that appellant was then suffering from a deformity known as Volkman's contracture. This is a condition in which muscles of the forearm are lost to further use and are replaced by fibrous tissue, resulting in a permanent deformity sometimes called a claw hand. Appellees say in argument, "It is undisputed that a Volkman's contracture is caused by a circulatory obstruction."

The standard of care required of a physician is well settled. He is bound to use that degree of knowledge, skill, care and attention ordinarily exercised by physicians under like circumstances and in like localities. He does not impliedly guarantee results. Nelson v. Sandell, 202 Iowa 109, 111, and citations, 209 N.W. 440, 441, 46 A.L.R. 1447; Wilcox v. Crumpton, 219 Iowa 389, 393, 258 N.W. 704; Kirchner v. Dorsey & Dorsey, 226 Iowa 283, 294, 284 N.W. 171; 41 Am.Jur. p. 206, sec. 82.

Appellant is entitled to the most favorable construction of which the evidence is fairly susceptible. Degelau v. Wight, 114 Iowa 52, 53, 86 N.W. 36; Kopecky v. Hasek Bros., 180 Iowa 45, 49, 162 N.W. 828. In considering the sufficiency of the evidence in malpractice cases, other courts have commented on the natural reluctance of physicians to testify against a fellow doctor, especially one who is reputable. Christie v. Callahan, App.D.C., 124 F.2d 825, 828; Stockham v. Hall, 145 Kan. 291, 293, 65 P.2d 348, 349; Tadlock v. Lloyd, 65 Colo. 40, 44, 173 P. 200, 202; Johnson v. Winston et al., 68 Neb. 425, 430, 94 N.W. 607, 609. See 27 Iowa Law Rev. 659, 660. Ordinarily evidence of the requisite skill and care exercised by a physician must be given by experts. 41 Am.Jur., p. 240, sec. 129; Whetstine v. Moravec, 228 Iowa 352, 370, 291 N.W. 425.

It is appellant's theory that when his arm and hand became swollen, the exercise of reasonable care required Dr. Seibert to remove or at least loosen the bandage, or widen the acute angle of flexion in which the arm was held; that the doctor's failure so to do was negligence, which was the proximate cause of Ivan's deformity. We hold there was substantial evidence to support appellant's theory and that the case should have been submitted to the jury.

The jury could have found from the evidence that appellant was obviously in danger of suffering a Volkman's contracture when he was taken to appellees' office on the Friday morning following the fracture. Dr. Smith testified: "The symptoms (of Volkman's contracture) are puffing, swelling, blue fingernails, which would indicate the arterial blood supply is going down and not coming back." Dr. Powers testified, "swelling, puffed hand and blue fingernails" were symptoms of the Volkman's contracture which followed. These are the symptoms which the undisputed evidence shows Ivan exhibited to the doctor on Friday morning.

The testimony shows the imperative need for prompt treatment when the above symptoms appear. The medical witnesses were substantially agreed that 48 hours after the circulation is obstructed is ordinarily about the maximum time that a Volkman's contracture could result, with six hours about the minimum. Dr. Mooney testified: "It can be a permanent disability when it isn't taken care of right away; if it is taken care of right the first few hours, it as a rule will right itself. * * * the circulation need be obstructed for 6 to 48 hours to result in a Volkman's contracture." Dr. Smith testified the general practice in the community would require instructing "the patient to report immediately if there was any marked swelling of the extremity or change in color. * * * There is always the possibility of swelling and change in the soft tissues from disturbance of circulation, and if that change is going to take place, the doctor would want to know it immediately." Dr. Powers testified, "a few hours is the period the circulation need be obstructed to result in a Volkman's contracture." Dr. Thornton: "The circulation need not be obstructed possibly more than 6 hours to result in a Volkman's contracture. It could be longer."

The medical testimony to prove negligence upon which appellant most relies is that of Dr. Mooney of Parkersburg, a town between 25 and 30 miles from Waterloo. He graduated from medicine at Vanderbilt University in 1920, with 18 months interneship in New Orleans and Macon, Georgia, and a year at Mayo Clinic. He had practiced at Parkersburg 15 years. He testified that he knew the degree of skill and care exercised by physicians in Waterloo and similar localities, knew the treatment used by Dr. Steindler at Iowa City and by the...