Carraway v. Smith

• Decision Date: 22 November 1928
• Docket Number: 6 Div. 171
• Citation: 118 So. 758,218 Ala. 412
• Parties: CARRAWAY v. SMITH.
• Court: Alabama Supreme Court

118 So. 758

218 Ala. 412

CARRAWAY v. SMITH.

6 Div. 171

Supreme Court of Alabama

November 22, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for malpractice by Mae Smith, a minor, suing by her next friend, W.S. Smith, against C.N. Carraway. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

B.F Smith, of Birmingham, for appellee.

BROWN J.

This action is by the patient against the surgeon for alleged malpractice. The count of the complaint on which the case was submitted to the jury avers:

That "defendant held himself out as a surgeon, and as such undertook to operate and did operate upon the plaintiff for a broken or fractured leg, and to render medical treatment thereafter to plaintiff; that it then became and was the duty of defendant to exercise due care, skill and diligence in the setting, repairing and treatment of plaintiff's said broken leg, but notwithstanding said duty, defendant so negligently conducted himself in that regard that as a proximate consequence thereof plaintiff's broken or fractured leg did not heal and plaintiff was caused for a long time to suffer," etc.

The evidence is without dispute that the plaintiff, a child, was injured by being run upon by an automobile driven by one Frank, causing a transverse fracture of the femur of the right leg. Frank picked the child up and carried her to the hospital, where the defendant was called, or voluntarily undertook, at the request of some of the hospital attendants to perform the operation of reducing the fracture--in common parlance setting the bone--and putting the leg in a plaster spica. This operation was performed by the defendant after having the injured leg X-rayed, and before and after the leg was put in the plaster cast it was examined through a fluoroscope, and it was then in proper alignment and position.

The child remained in the hospital until the day following the operation, when she was removed by her parents to their home in Rosedale, and Dr. Parker, the family physician, took charge of the case. After this the defendant was not consulted with reference to the case and had no further connection with it. About three weeks after the child was removed to the home of her parents, the plaster cast was removed by Dr. Parker and he found that the bone was out of alignment, but was firmly knitted together. He testified as a witness in behalf of the plaintiff:

"When I took the cast off of the leg it was short and crooked, and the cast loose on her leg. She was becoming emaciated considerably, losing weight and losing flesh and shrinking. There appeared to be a lap in the bone in the leg called the femur, as best I could tell without an X-ray picture of it, and it indicated a slight angle in the position of about, I would say about that, a very slight lap. *** When I took the cast off, it wasn't tight; it was loose here (indicating the lower leg), any looser than it should have been, but it was loose there where the break was. There could have been something else that caused the slipping out of joint. *** The way that I have indicated the cast was fitted is the ordinary way in which to put casts on. There was nothing unusual about the manner in which they were put on and it was proper so far as I could tell. When I first saw it I didn't notice anything wrong with the cast or the leg either. The first time I saw it, it looked all right and one leg didn't appear shorter than the other. It was impossible to tell whether the cast was tight or not at the point of the fracture. But it was tight around--the portion of the cast that goes around the hips and body to hold to some slips. It was fitting closely. I couldn't see any looseness at the point of the fracture and couldn't tell anything wrong there. *** When I first saw the child I saw nothing wrong with the cast or with the leg that I could tell. *** When I noticed the cast becoming loose, I judged that the swelling was going out of the leg. This was a break of the bone between the thigh (knee) and the hip. *** When you put the cast on, you have to fit the leg as swollen. You can't make it any smaller than the leg is at the time. At the time I noticed the cast was larger than the leg, if there was any swelling when the leg was first broken, it had come down. When I noticed this I advised him (the father of the child) to take the child back to the hospital, and he refused to do it. I first suggested taking it back to the man that put the cast on, and he refused to go back there. I then told him to take her to the Hillman Hospital, and he first refused to do that, but he finally went to the Hillman Hospital, I suppose."

Dr Parker further testified...