Boston v. Fountain

• Decision Date: 29 May 1929
• Citation: 267 Mass. 196,166 N.E. 736
• Parties: BOSTON v. FOUNTAIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

267 Mass. 196

166 N.E. 736

BOSTON

v.FOUNTAIN.

Supreme Judicial Court of Massachusetts, Essex.

May 29, 1929.

Exceptions from Superior Court, Essex County; D. F. Dillion, Judge.

Action by Stephen A. Boston against Oliver R. Fountain. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

R. L. Sisk and G. F. Hogan, both of Lynn, for plaintiff.

R. H. Wiswall, of Salem, and Haven Parker, of South Lancaster, for defendant.

PIERCE, J.

This is an action of tort to recover damages for personal injuries alleged to have been suffered by the plaintiff in consequence of alleged negligent treatment, by a physician, of a fracture of the plaintiff's left leg which resulted in amputation. The jury returned a verdict for the plaintiff, and the case is here on the defendant's exceptions to the refusal of the trial judge to give a certain ruling requested by the defendant, and to certain additional instructions given by the judge at the request of the plaintiff after the main charge.

On November 3, 1925, the plaintiff was struck by an automobile while he was stepping off the running board of his automobile truck, and sustained a fracture of his leg. The defendant responded to an emergency call, and the plaintiff was taken to the Cable Memorial Hospital in Ipswich, where the leg was set in a plaster cast by Doctor Curtis, a surgeon called in by the defendant. The defendant and the surgeon testified that the fracture was a closed fracture in the first instance as distinguished from a compound fracture, that is, there was no laceration in the skin or any bone protruding through the skin. After the plaintiff came out of ether, he complained that something was pressing on his leg, that the cast was too tight, that he could not bear it; and on November 5, 1925, the defendant cut the cast the whole length on both sides from the heel to the calf of the leg to relieve the pain. The plaintiff testified that when the cast was taken off he saw a bone sticking out, a sliver of bone similar to a little wooden sliver ‘and dry-like’; that the defendant pressed it back with his finger, said that it was nothing, that it would pad over, that it had slipped a little bit but there was nothing to be alarmed about, that it would be all right and that if it bothered him in a year or two they could chisel it off. The defendant denied this testimony of the plaintiff, and he and his witnesses asserted that such an occurrence was an impossibility. Thereafter the defendant treated the injury as a closed fracture. The plaintiff testified that the cast was replaced and he suffered severe pain until November 9, complaining to the nurse and to the defendant; that additional X-rays were taken on the ninth; that the cast was not removed and that he went home on November 10.

Without being called, the defendant went to see the plaintiff on November 14, took off the top of the cast and looked at the plaintiff's leg, which was wet and black and blue, swollen like a bladder and shiny. The plaintiff did not notice any pus coming from his leg. His wife testified that on November 14 the defendant came to Lynn of his own accord, took off the plaster cast, looked at the leg, and told her the leg looked good and was knitting; that she drew the defendant's notice to a bone protruding and the pus coming out a little, and the defendant said it was nothing and would flesh over, and that the fact that the leg was black and blue did not mean anything; that the blood did not circulate very well; and he further said, as the plaintiff testified, that it would heal over and form a pad.

The plaintiff and his wife testified that on November 26, he was suffering great pain in his leg; that he telephoned the defendant who came and took off the top of the cast, looked at the leg and said, ‘It was getting along all right, that it was fine, as well as could be expected’; that the wife brought to the defendant's notice that the bone showed a little more; that she said it looked terrible, and the defendant replied that she must expect it to look bad, that it would heal over, and if the bone bothered the plaintiff it would have to be chisled off; that she directed the defendant's attention to pus running down the leg; that the defendant wiped it off as well as the pus that was running into the bottom of the cast, placed a piece of cotton over the protruding bone, and replaced the cast without applying any antiseptic to the leg. The defendant denied that there was any laceration or pus at that time. On December 21, the defendant again called on the plaintiff, took off the cast, and examined the leg. It was admitted by the defendant that the leg was then almost beyond repair, and that pus was exuding from it. There was a foul odor from it, and the defendant admitted it was septic. At the defendant's suggestion a Dr. McAusland, of Lynn, was called. He looked at it after removing the top of the cast, and at once took the plaintiff to a hospital where the leg was amputated on December 24.

On November 14, the plaintiff had an attack of pleurisy or pneumonia and was treated therefor every few days until he went to the hospital. He suffered tremendous pain from the pleurisy, which is an inflammation of the covering of the lung and an ‘infectious disease caused by a germ causing a good deal of pain through the chest and back.’ The physician treating the plaintiff for pleurisy only gave him a pneumonia jacket which has a heavy lining both back and front of cotton batting to counteract sudden changes in temperature. It would not be unusual for ‘a man who had been through a broken leg and was somewhat run down to be in a condition which might light up a pleurisy.’ There was evidence that when a fracture is closed it is possible for infection to reach the seat of the fracture by travelling through the blood or lymph stream; that in a closed fracture there is danger of infection from germs getting into the system from within but not from without, and if there is such an infection it breaks out at the point where there has been a local injury; there was further evidence that if there was an open wound in the leg with the bone sticking through,...