Blair v. Eblen

• Decision Date: 18 December 1970
• Parties: Clarence BLAIR, Appellant, v. Kenneth EBLEN, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 370

461 S.W.2d 370

Clarence BLAIR, Appellant, v. Kenneth EBLEN, Appellee.

Court of Appeals of Kentucky.

Dec. 18, 1970.

Russell S. Armstrong, Evansville, Ind., John D. Miller, Owensboro, for appellant.

Leonard T. Mitchell, Mitchell, Withers, Neel & Hoffman, Henderson, for appellee.

REED, Judge.

Plaintiff-appellant, Clarence Blair, sued defendant-appellee, Kenneth Eblen, a general practitioner of medicine, for negligence in the treatment of a hand injury. The trial judge submitted the case to a jury under instructions which defined the standard of care applicable to the defendant in accordance with our current case law and which also required the jury to exonerate the defendant if they found that plaintiff was contributorily negligent even though they also believed the defendant was negligent. The jury returned a general verdict for the defendant. The plaintiff appeals from the judgment based on the verdict.

We find that the plaintiff's claimed conduct which is relied on to warrant the contributory negligence instruction was subsequent to and not concurrent with the conduct of the defendant which is claimed to constitute actionable negligence. Therefore, we believe that the form of the contributory negligence instruction given was prejudicially erroneous. We are also persuaded that the standard of care applicable to the defendant should be recast in a more realistic form in the jury instructions when the case is tried again.

Plaintiff severely injured his left hand in an industrial accident. He went to a hospital in Henderson, Kentucky, where he underwent emergency treatment followed by hospital care. Defendant, a general medical practitioner, was the treating physician in charge of the case. Infection developed in the injured hand. Plaintiff requested the services of another physician. Defendant arranged the referral of plaintiff to orthopedic specialists in Evansville, Indiana. Plaintiff was then transferred to the treatment of the Evansville specialists. He had been under defendant's care about a week.

The Evansville specialists treated the infection before performing surgery. After the infection was controlled, they amputated his thumb, a portion of his ring finger, and his index finger. He was then referred by the orthopedic specialists to a hand specialist who practiced in Louisville, Kentucky.

The hand specialist treated plaintiff's left hand in its amputated condition for the purpose of restoring as much of its function as was possible. This physician said that he had hoped for a better result in restoring function to the hand than he obtained. He stated that plaintiff had a low pain threshold. This physician asserted a belief that plaintiff had not performed exercises with the injured hand which he had recommended as a part of his rehabilitative treatment.

It is virtually conceded by both plaintiff and defendant that the evidence presented a jury issue concerning whether the defendant was negligent. There was expert evidence tending to support the claims of each of the adverse parties on that issue. We will not belabor the point except to say that the jury could have reasonably found either that the defendant was negligent or that he was not. The same comment cannot be made, however, about the claimed contributory negligence of the plaintiff.

The only evidence of contributory negligence on plaintiff's part is the testimony of the hand specialist that because of a lack of tolerance for pain plaintiff was reluctant to exercise the injured hand. One of the orthopedic specialists also said that the patient had an extremely low tolerence to pain and manifested a lack of willingness to try and help himself. If it be conceded that this evidence was sufficient to inject the issue of contributory negligence into the case for jury determination, it must also be conceded that this conduct of plaintiff occurred after his hand had been permanently injured, part of it amputated, and the defendant's treatment of it had ceased.

Negligence on the part of the patient, which occurs wholly subsequently to the physician's malpractice which caused the original injuries sued for, is not a complete defense to any recovery against the physician, but serves to mitigate the damages, preventing recovery to the extent the patient's injury was aggravated or increased by his own negligence, although he is entitled to recover for the injuries sustained prior to his contributory negligence. Leadingham v. Hillman, 224 Ky. 177, 5 S.W.2d 1044 (1928); also see 50 A.L.R.2d, Anno: Malpractice--Contributory Negligence, section 6, pp. 1055--1060.

Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697 (1934) relied on by the defendant is not applicable here because that case presented the situation where the patient's disobedience of the physician's instructions concurred with the physician's malpractice as the cause of the injury complained of. Cf. Flynn v. Stearns, 52 N.J.Super. 115, 145 A.2d 33 (1958). It is impossible to say whether the jury found the defendant nonnegligent or whether the jury believed that the plaintiff's failure to exercise his hand in its amputated condition barred his right to any recovery notwithstanding negligence on the defendant's part. The contributory negligence instruction was therefore prejudicially erroneous and this necessitates a reversal for another trial.

The plaintiff complains about the language of the instruction which defined the standard of care applicable to the defendant. The trial court instructed the jury that the defendant was obligated to use such reasonable and ordinary knowledge, skill and care as is exercised by physicians in similar communities. Plaintiff argues that instead of 'similar communities' the locale should be expressed as 'the state of Kentucky.' Plaintiff further...