Buckroyd v. Bunten, 2--57228

• Decision Date: 21 January 1976
• Docket Number: No. 2--57228,2--57228
• Parties: John P. BUCKROYD, by his next friend and mother, Mary Buckroyd, and Mary Buckroyd, Individually, Appellants, v. Ronald K. BUNTEN and John H. Kelley, Appellees.
• Court: Iowa Supreme Court

Page 808

237 N.W.2d 808

John P. BUCKROYD, by his next friend and mother, Mary Buckroyd, and Mary Buckroyd, Individually, Appellants, v. Ronald K. BUNTEN and John H. Kelley, Appellees.

No. 2--57228.

Supreme Court of Iowa.

Jan. 21, 1976.

Robert W. Brennan, of Stewart, Wimer, Brennan & Joyce, Des Moines, for appellants.

Michael Figenshaw, of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellees.

Heard by MOORE, C.J., and MASON, LeGRAND, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

Plaintiff John Buckroyd appeals judgment entered for defendants after trial to the court of his medical malpractice action. The determinative question is whether the trial court erred in holding defendant Bunten's negligence could not be established without expert testimony. We affirm the trial court.

John was a minor when this action was commenced. He sued by his mother as next friend and she added her individual claim. When his mother died in 1972 John continued the action in his own right. He was 20 at the time of trial.

The chronology of events and essential facts are uncontroverted. John suffered a blow to his thigh while playing football during a game at Hoover High School in Des Moines on October 22, 1969, when he was 16. After some time on the sideline, he re-entered the game. For the next few days the thigh was swollen and painful, but he waited until October 27 to see a doctor about it.

On October 27, he saw defendant Ronald K. Bunten, a Des Moines orthopedic surgeon, in the emergency room at Iowa Methodist Hospital. John had seen Dr. Bunten in September regarding problems he was having with his knees. After taking his history and examining the thigh, including measuring the swelling and reading X-rays, Dr. Bunten concluded John had suffered a contusion of the thigh causing a hematoma, a collection of blood within the tissues. He prescribed medications and bedrest, with crutches to take the weight off the leg when walking.

John returned two days later with the same complaints. After examination, Dr. Bunten told John to continue to rest the leg and to see him in his office November 4. On that date, Dr. Bunten found less tenderness and swelling. He told John to continue to be cautious in use of the leg, and to continue use of crutches. He also told him to return November 14 for repeat X-rays of the thigh.

On November 13 John appeared at Broadlawns Hospital and reported he had been walking without crutches, had twisted his right knee, and experienced severe pain in the thigh. A telephone call was placed to defendant John H. Kelley, an orthopedic surgeon and partner of Dr. Bunten, relating to whether John should be hospitalized for observation. John was hospitalized at Broadlawns and seen there the next evening by Dr. Bunten. On this occasion Dr. Bunten aspirated the right knee, which had been troubling John since before his thigh injury, and applied an ace bandage to it. John was then transferred to Iowa Methodist Hospital where he remained until November 22. At Dr. Bunten's direction he was treated with bedrest, heat, whirlpool therapy, and elevation of the leg. Dr. Kelley may have visited John while he was hospitalized but did not examine or treat him.

After his discharge from the hospital on November 22, John next saw Dr. Bunten on November 24. He complained of intermittent cramping of the thigh muscle. Dr. Bunten recommended that he continue with his crutches, muscle relaxants, and pain medication. Dr. Bunten testified that the swelling had been reduced and was more localized. His diagnosis never changed. John and his mother were dissatisfied with Dr. Bunten and decided to change doctors.

On Thanksgiving Day, November 27, John went to the Mercy Hospital emergency room where he was seen by Dr. Marvin Dubansky, also an orthopedic surgeon. Dr. Dubansky took John's history and noted the swelling and tenderness of the thigh. He diagnosed the condition as chronic hematoma. He applied a walking cylinder cast to immobilize the leg and sent John home. John experienced great pain during the night and at Dr. Dubansky's direction was taken to Mercy Hospital where the cast was removed 12 hours after it had been put on. John again went home.

On December 2, John was brought to the emergency room of Northwest Hospital where he was seen by Dr. Sidney H. Robinow, a partner of Dr. Dubansky. The thigh was still swollen and painful. The swelling could not be reduced by aspiration. Dr. Dubansky operated on the thigh the next day and evacuated 400 cc's of clotted blood from the swollen area. Considerable bleeding occurred during surgery. John was given multiple transfusions of blood, 12 pints in all. The amount of bleeding led Dr. Dubansky to believe some cause other than the original trauma might be responsible. John was discharged from Northwest Hospital on December 15.

The thigh continued to be swollen and painful. On December 21 John went to Mercy Hospital where he was seen by Dr. Dubansky the next day. Dr. Dubansky diagnosed the condition as recurrent hematoma. He called in Dr. Alexander Matthews, a thoracic and vascular surgeon, for consultation. Dr. Matthews examined John and recommended an arteriogram which was done. The arteriogram showed an aneurysm at the level of the third branch of the profunda femoris artery, possibly caused by an abnormal direct communication called an arteriovenous fistula between the artery and a vein at that site. On December 26 Dr. Matthews surgically removed such an arteriovenous malformation and a large arterial aneurysm and repaired the affected blood vessels.

He testified an arteriovenous fistula could be caused by a penetrating injury but not a blunt injury like that suffered by John. He said the aneurysm was associated with the arteriovenous fistula which was probably congenital. He thought the malformation could have contributed to the bleeding in the thigh prior to the Dubansky surgery, and he said it did cause the excessive bleeding during and following that surgery.

Dr. Dubansky testified he had not seen a similar problem in 25 years of medical practice.

After the Matthews surgery, John experienced a complete recovery without disability. The only defect was residual scarring in the fascia of the thigh.

At the conclusion of all the evidence, the trial court sustained a motion to dismiss the action as to Dr. Kelley. Although this ruling is not assigned as error, plaintiff does not distinguish between Dr. Kelley and Dr. Bunten with regard to the errors which are assigned. Even if those errors were established, they could not help plaintiff's claim against Dr. Kelley. As Dr. Kelley's sole material contact with the case was in taking a telephone call regarding John's admission to Broadlawns Hospital on November 13, and no charge of malpractice is predicated on that event, the trial court's ruling dismissing the claim against him was manifestly correct.

After submission of the case, the trial court held the action should have been dismissed as to Dr. Bunten at the conclusion of the evidence, but also found in Dr. Bunten's favor as trier of the facts.

Plaintiff offered no...