Browning v. Hoffman

• Decision Date: 21 March 1922
• Docket Number: (No. 4418.)
• Citation: 111 S.E. 492
• Parties: BROWNING. v. HOFFMAN et al.
• Court: West Virginia Supreme Court

111 S.E. 492

BROWNING.

v.HOFFMAN et al.

(No. 4418.)

Supreme Court of Appeals of West Virginia.

March 21, 1922.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Mineral County.

Action by George P. Browning, infant etc., against C. S. Hoffman and others. Verdict and judgment for the plaintiff and the defendants bring error. Reversed, verdict set aside, and case remanded for new trial.

See also, 86 W. Va. 468, 103 S. E. 484.

C. O. Strieby, of Elkins, Chas. N. Finnell, of Keyser, H. P. Whitworth, of Westernport, Md., and Harry G. Fisher, of Keyser, for plaintiffs in error.

R. A. V. Welch and Taylor Morrison, both of Keyser, for defendant in error.

POFFENBARGER, P. By reference to 86 W. Va. 468, 103 S. E. 484, the nature of this case, the history of the transaction out of which it arose, and the general character of the evidence, will be found in the report of the disposition of a former writ of error in it. This writ has brought up for review a judgment for $5,000, rendered upon a verdict found in a second trial in which the evidence was substantially the same as that adduced in the first. In some relatively unimportant respects it differs, and some, if not all, of the variations therein will be incidentally noted in this opinion.

Exceptions were taken to the giving of each one of the twelve instructions given to the jury at the instance of the plaintiff, and each one of these exceptions is made the subject of a special assignment of error in the brief. Having set the broken limb and properly dressed the wound, late in the evening of November 11, 1918, Dr. Hoffman, the surgeon in charge of the plaintiff left Keyser in the evening of the next day, and went to the city of Huntington, W. Va., on an important public mission. He was absent during the night of the 12th and the day of the 13th, and returned to Keyser, after midnight of the 13th, namely, at 2 o'clock a. m. of the 14th. During his absence a crisis arose. He had left the patient in the hands of admittedly competent nurses, with such instructions as he deemed necessary. The hospital in which the patient was, belonging to the defendants, Drs. Hoffman and Kalbaugh, was attended in his absence, by Dr. Maxwell, an admittedly competent physician and surgeon. At 7 o'clock, on the morning of the 13th, the head nurse discovered a coldness and whiteness of the toes and possibly some swelling, but she did not cut the plaster of paris cast until an hour later. At 10:30 o'clock, a. m. Dr. Maxwell, in making his usual tour of the hospital and visiting the patients, came into the room and was advised of the unfavorable indications. He swears that, at that time, it was impossible to tell what ultimate exigency or condition the unfavorable symptoms betokened. Before his arrival, the head nurse had adopted measures for increase or restoration of circulation, and he supplemented this work by some additional measures. The nurse had cut the plaster of paris cast, but not the bandages that held the cotton in place within the cast. He cut the bandages also and partially exposed the leg to the knee or above. As to the extent of his observation of the patient from 8 o'clock a. m. until 2:30 o'clock p. m., there is some conflict in the evidence. He and the nurses say he visited the patient between those hours, but some of the relatives of the injured boy, who claim to have been there all the time, deny that he did so. It seems not to be denied, however, that he was there at 2:30 or earlier. He and the nurses all swear that, at that time, and not earlier, the developments of the case made it certain that amputation would be necessary. What transpired after that time is substantially set forth in the former opinion.

By instruction No. 1, given at the instance of the plaintiff, the jury were told that hewas entitled to recover if they should find that Dr. Hoffman had reason to anticipate before leaving, that the boy's condition might so develop as to make amputation of the leg necessary, before his expected return; that he had not advised the patient's parents or grandparents of the gravity of his condition; that, by the exercise of reasonable diligence, those in charge of him would have known, on the morning of November 13, that amputation was immediately necessary; that one of his parents or grandparents was in the hospital, throughout practically all of November 13th; that nothing was said to any of them about the change in the patient's condition earlier than 5:30 p. m., and that, from the morning of November 13th, until 5:30 p. m. of that day, gangrene extended from below the knee to a point above the knee.

Whether this instruction erroneously assumes the existence of evidence to prove that Dr. Maxwell, the nurses, or any of them could have known on the morning of November 13, 1918, that amputation was immediately necessary, depends upon a partial analysis of the evidence. There is no proof that, at that time, there was any gangrene or any indication thereof, unless it is found in the testimony of Dr. Bell, the family physician, whom Dr. Maxwell called at about 1 o'clock p. m. of the 13th, and who says he saw the boy's leg about an hour later, at which time it was gangrenous up to the knee and discolored two or three inches above the knee. Upon his knowledge and experience with gangrene and its progress, he expressed an opinion that, if the leg had been in good condition and doing well at 10 o'clock, it could not have been in the condition in which he found it in the afternoon. He accompanied the boy from the Hoffman hospital, to a hospital at Cumberland, Md., in which the amputation took place, at 4 o'clock on the morning of November 14th, and saw the condition of the leg at that time, and expressed the further opinion that, in view of its condition then, it could not have been doing well at 10 o'clock a. m. of the 13th. In this there is no assertion either in terms or by Implication, that amputation was immediately necessary in the morning of November 13th, or that anybody had reason to know it would become necessary. Dr. Maxwell and the nurses admit unsatisfactoriness of the condition of the patient at that time, but they deny the possibility of determination of the exact cause of the unfavorable symptoms. Between their evidence on this point and that of Dr. Bell, there is no conflict. The latter did not express an opinion that amputation was then necessary, nor that those in charge should have known it would become necessary. From 10:30 a. m. until 2:30 p. m. Dr. Maxwell was endeavoring to ascertain what the outcome would be, if his statements are true, and did not become convinced until about 2:30, when he discovered crepitation signifying the presence of gas bacillus. He claims he saw the boy four or five times in the forenoon, left at 1 o'clock p. m. and, returning at 2:30, made his discovery, called Dr. Bell and ordered preparation of the operating room. His evidence cannot be interpreted as saying the appearance of the leg then disclosed gangrene to the knee or at all, but he admits he may have told Dr. Bell the patient had developed gas. gangrene. Dr. Bell says he told him the leg was gangrenous and would have to come off. The head nurse denies there was any marked discoloration at 1:45 p. m., saying the only change in appearance from earlier examinations was a slight increase of the swelling. The discovery of gas bacillus infection, if made, meant inevitable gangrene, wherefore Dr. Maxwell's message to Dr. Bell may have signified no more than that gangrene was incipiently, but ineradicably, present. His evidence is irreconcilable with the theory of obvious gangrene prior to 3 o'clock. As to the obvious condition of the leg at that time, there may be conflict between the evidence of Dr. Bell, on the one hand, and Dr. Maxwell and the nurse, on the other, but this affords no evidence of necessity of amputation on the morning of November 13th nor any duty respecting it earlier than noon. Dr. Bell may not have seen the leg before 3 o'clock. As to the time, he and Dr. Maxwell are both indefinite. Considerable discoloration may have occurred in the space of three hours, or even in the one hour which he admits intervened between the call for him and his arrival. The experts all agree that gas bacillus works with unusual rapidity, and it may have existed. If it did not, there was no proof of obvious gangrene before noon. If nothing more was discovered at 10:30 o'clock than Dr. Maxwell admits, he pursued the course approved by the experts who testified in the case. He endeavored to restore circulation, and awaited such development as would enable him to determine the cause of the trouble. We are of the opinion that there is no evidence upon which the hypothesis of knowledge, actual, or constructive, of necessity of amputation in the morning of November 13th, can stand.

And there is a total lack of evidence to sustain the hypothesis that Dr. Hoffman had reason to anticipate before leaving, that any situation would arise, making amputation necessary in his absence. The only two physicians put on the witness stand by the plaintiff, were Dr. Bell, the family physician, and Dr. Johnson of Cumberland, who performed the operation. Neither of them, nor any other expert witness, expressed an opinion that the nature of the wound or cir-cumstances of the case were such as should have generated belief in the mind of Dr. Hoffman, that amputation would become necessary before the time of his expected return. All of the physicians agreed that careful watching was necessary, under the circumstances, and that was provided for in the nurses and Dr. Maxwell. The need of that was the danger of constriction, the result of swelling of the leg. That was anticipated by Dr. Hoffman, in his direction to the nurse to cut the cast on discovery of any swelling. According to the testimony of all the expert witnesses, a sudden development of gangrene, such as took place in the...