Boyd v. Andrae

• Decision Date: 05 January 1932
• Docket Number: No. 21677.,21677.
• Citation: 44 S.W.2d 891
• Parties: BOYD et ux. v. ANDRAE.
• Court: Missouri Court of Appeals

44 S.W.2d 891

BOYD et ux. v. ANDRAE.

No. 21677.

St. Louis Court of Appeals. Missouri.

January 5, 1932.

Rehearing Denied January 22, 1932.

Appeal from Circuit Court, Pike County; Edgar G. Woolfolk, Judge.

"Not to be officially published."

Action by John J. Boyd and wife against Robert L. Andrae. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Woodward & Evans, of St. Louis, for appellant.

May & May, of Louisiana, Mo., for respondents.

SUTTON, C.

This is an action to recover damages for negligence on the part of defendant, who is a physician and surgeon, in the treatment of plaintiffs' daughter, Margaret, aged nine years, for injuries sustained by her in a fall. The accident in which Margaret was injured occurred on June 15, 1929. She suffered a broken hip and a slight injury to her knee. Defendant was immediately called to treat her. His diagnosis resulted in a finding of an injury to the knee, but he did not discover any injury to the hip. He visited her again on June 16, 17, 18, and 23d, and did not see her again until July 12th. He next saw her on July 29th. Up to July 29th he had not discovered any hip injury. On July 28th, Mrs. Boyd called Dr. Jesse A. West, an osteopath, who found a transverse fracture of the neck of the femur. Mrs. Boyd then called the defendant and informed him of the diagnosis made by Dr. West. Defendant examined the patient, and discovered the broken femur, and advised that the child be taken to Barnes Hospital for surgical treatment. On the following day he called again to see the child, and was told by the mother that his services were no longer desired. Another physician was called in, and the child was taken to St. Johns Hospital, in St. Louis, where an operation was performed to reduce the fracture. That the evidence shows negligence on the part of defendant in failing to diagnose the fractured hip is not questioned. The trial, with a jury, resulted in a verdict and judgment in favor of the plaintiffs for $3,500, and defendant appeals.

Defendant testified that on his last visit in June he told the child's mother that he felt that the knee was progressing nicely, and that he would not return unless called. Concerning this last visit in June, Mrs. Boyd testified: "He carried her from the bedroom to the living room, and took hold of her and walked her from the chair to the davenport, and from the davenport back to the chair. She was crying and begging him not to make her walk. She broke out in a cold sweat, and her suffering was intense. Dr. Andrae told her she was just frightened, and that it didn't hurt her. He then told me I should make her walk every day. I followed his directions about making her walk, but she still had cold sweats."

Dr. Leroy C. Abbott, who operated on the patient's hip at St. Johns Hospital on August 6, 1929, testified concerning the operation, as follows:

"I made an incision on the front of the hip joint to expose the site of the fracture, and at that time found a fibrous tissue uniting the two fragments with some sclerosis of the bone. By sclerosis, I mean that there was a thick, hard, dense bone over the site of the fracture. We tried to pull the fragments into position and found that we could not maintain a good position without internal fastening. Therefore, we applied a nail to join the fragments. There was a definite deformity at the base of the neck which we call coxa vara. In order to obtain union we had to chisel away the fibrous tissue and the sclerotic part of the bone. There were just two fragments involving the fracture, one consisting of the great trochanter with a small portion of bone attached, and the other consisting of the neck and head of the femur. After the operation the child was placed in a plaster cast. She remained in this cast until October 4th, when it was changed and a second one was applied for a period of two weeks. We then placed her in a walking caliper splint. The patient left the hospital about the 10th of November. She was placed in a walking splint for protection of the fractured part and also to stimulate union. I next saw her at my office about the middle of December. There was at that time some deformity of the hip, a shortening of the limb and some limitation of motion. At the present time there is between three-quarters and one inch shortening. At the examination in December we were of the opinion that the neck of the femur was bending at the site of the fracture. We thought that she should be hospitalized again, and she was sent to the Shriners' Hospital for crippled children during the first week of January, 1930, and the nail was removed from the fractured hip. Since that time she has remained at the hospital, staying in bed a part of the time. She will have to stay at the hospital for five or six months longer, and it will be necessary to perform another operation to correct the deformity in the angle of the neck. The fracture which I found was an ununited fracture."

A number of physicians, besides Dr. Abbott, testified. There was some diversity of opinion amongst them as to whether or not the fracture of the hip was originally a green-stick fracture or a transverse fracture. They all agreed that, if the fracture was originally a green-stick, or incomplete, fracture, it could have been converted into a transverse, or complete, fracture by the use of the limb in walking. They also agreed that a green-stick fracture of the hip was difficult to diagnose without the use of the X-ray, but that a transverse fracture, such as was found, as shown by the evidence, in this case, could have been easily diagnosed, even by a layman, from the deformity of the hip; that it required from thirty to fifty days after the happening of the transverse fracture for the fibrous tissue and sclerosis such as was found by the surgeon in his operation fifty-one days after the accident to form; and that, if the fracture had been diagnosed shortly after it occurred, it could have been successfully reduced, probably by a closed operation, that is, by manipulation of the limb, but, if not by this method, then by an open operation.

Defendant complains that error was committed by the court in the giving of plaintiffs' instruction No. 1, which advises the jury that, if they find "that the defendant undertook to examine, diagnose and treat plaintiffs' daughter, and that he negligently overlooked and failed to discover the fracture of her hip, and that by the exercise of reasonable skill and care, he could and would have discovered said fracture, and that as a direct and proximate result of such negligence, said fracture was not discovered, and set, placed or reduced, when it should, and would have been, had defendant exercised reasonable skill and care, and that in consequence of such negligence, plaintiffs have sustained loss or damage," their verdict should be in favor of plaintiffs.

Defendant insists that the instruction is erroneous, in that it assumes that, if defendant had discovered the fracture of the hip, such fracture should and would have been reduced. We are unable to accept this view. The instruction hypothesizes that through the...