Daiker v. Martin

• Citation: 250 Iowa 75,91 N.W.2d 747
• Decision Date: 28 July 1958
• Docket Number: No. 49278,49278
• Parties: Paul DAIKER, Appellant, v. Dr. Joseph MARTIN, Appellee.
• Court: United States State Supreme Court of Iowa

Page 747

91 N.W.2d 747

250 Iowa 75

Paul DAIKER, Appellant, v. Dr. Joseph MARTIN, Appellee.

No. 49278.

Supreme Court of Iowa.

July 28, 1958.

Rehearing Denied Oct. 17, 1958.

Welch & Welch, Logan, and Leighton A. Wederath, Carroll, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, and Meyers & Tan Creti, Carroll, for appellee.

OLIVER, Justice.

This is an appeal by plaintiff from a judgment on a verdict directed for defendant physician in a malpractice action for damages allegedly caused by placing and keeping plaintiff's broken leg in a cast which was too tight, after defendant had done a closed reduction on fractured bones of the lower leg.

Friday evening, November 3, 1950, plaintiff, then aged eighteen years, was injured in a high school football game at Carroll, Iowa. His injury was a comminuted fracture of both bones of the left leg about nine inches above the ankle. It was a simple fracture, that is, one which did not break through the tissues to the air. Plaintiff was taken to St. Anthony Hospital in Carroll, where defendant, plaintiff's family physician, promptly set the broken bones and placed plaintiff's leg in a plaster cast extending from his groin to his toes, which were the only part of the foot not covered.

Plaintiff's complaint is not that the fractured bones were improperly set but that the plaster cast was so tight it prevented the circulation of the blood in the lower leg and foot, resulting in infections and subsequently in the amputation of the foot and nine inches of the leg. At the conclusion of the evidence for plaintiff the trial court directed a verdict for defendant on the grounds the evidence failed to establish defendant's negligence, or that his conduct was the proximate cause of the damage suffered by plaintiff and also that plaintiff had failed to show his freedom from contributory negligence. From the judgment rendered on the verdict plaintiff prosecutes this appeal. In determining its sufficiency to warrant submitting the case to the jury, the rule requires that the evidence be considered in the light most favorable to plaintiff. For that purpose only, the portions of the record herein set out or referred to are usually worded as though we found them true and correct. Actually, however, we express no opinion concerning the weight of the evidence or any part of it. We merely find there is such evidence, the weight to be given any part or all thereof being for the determination of the jury.

It is our conclusion that the evidence, thus considered, was sufficient to require submission of the case to the jury and that the court erred in directing the verdict.

Plaintiff remained in the hospital under defendant's care for fifteen days after the fractures were reduced. He suffered pain most of this time and until the last day or two was given morphine and other drugs to relieve the pain and enable him to sleep. At 1 a. m., November 4, three hours after plaintiff's leg was placed in the cast, the nurse's record recited: 'Circulation appears good. Leg elevated.' The morning following his hospitalization the toes of his left foot were warm and he had some feeling in them and movement of them. Before noon his cast felt too tight below the knee and defendant relieved this pressure and pain, for a short time, by splitting the cast down from the knee about five inches. At 3 p. m. plaintiff again felt pressure and pain under the cast, this time at the place where the leg was broken.

'It was more painful and it felt like it wasn't just no room in there and everything was just pounding, pumping, pounding in my leg * * *.' About 6 p. m. defendant gave plaintiff a hypo, split the cast down four or five inches farther and spread the split about a quarter of an inch. The pain and the pounding stopped. By that time plaintiff's toes were swollen and noticeably red and he had less movement in them. That evening the burning and pounding in his leg returned, this time below the break. He was given sleeping pills and 'shots', to relieve the pain.

Sunday morning, November 5, his toes were more swollen and were starting to turn blue. Sunday afternoon the burning and pounding in theleg was renewed and there was also pain in the ankle and foot. There was loss of feeling in the toes. That evening the toes were darker and the fifth (little) toe was almost black. Plaintiff was given morphine at 4:10 and 9 p. m. His foot was becoming painful. The nurse's record, at 3:45 a. m., November 6, recites: 'Morphine gr. 1/6 given for pain. Toes becoming more cyanotic and mottled. Becoming cold. Dr. J. Martin notified. Sling applied by Dr. Martin. More comfortable. Sleeping at intervals.' During this 3:45 a. m. call defendant also split the cast for the third and last time, down over the ankle to an inch or two from the lower end. This relieved the pressure temporarily. Monday morning there was pain around the arch and ball of plaintiff's foot and it was burning and pounding and felt too tightly confined and under pressure. Monday night 'the pain came right up to the toes' which no longer had a sense of feeling. The nurse's record at midnight states: 'Left foot still appears blotchy.'

Plaintiff's father frequently voiced his concern over the apparent condition of plaintiff's foot and was repeatedly assured by defendant that it would be all right and he should not worry. November 7 defendant told plaintiff the leg was swelling inside the cast. He did not at any time tell plaintiff the break in his leg had done anything to the circulation. Plaintiff continued to suffer burning and pounding pains in the leg and foot, for which he was given morphine and other sedatives. The last few days he was in the hospital the pain was not as distressing as it had been and less medicine was required to keep the pain down. 'My little toe kept getting sore, got a scab, kind of drained a little bit, had pus on the little toe, and I still had pain.' The nurse's record of November 13, recites, 'Small toe of left foot very discolored, able to move entire foot but unable to bend toes.' November 17, 'small toe on--leg bruised and pus oozing from it. Sulfathiazole applied to little toe of left foot by Dr. Joe Martin.'

The following day (November 18) plaintiff was discharged from the hospital. The next week 'the end of the little toe, first joint, which was ulcerated, dropped off.' About November 25 plaintiff's cast was changed. This was done at the hospital. When the old cast was removed an ulcer was found at the back of the heel cord and a yellow liquid was removed from the bottom of the foot. The calf of his leg was raw and scabby and with the ulcer, 'emitted an odor.' The ankle and foot were red and swollen and the toes were blue. The foot was thick and square like a club-foot. The cast was again changed December 7. At that time what remained of the fifth toe appeared to be healing and was a dark color. 'Late in December I got an ulcer beside my little toe and the fifth metatarsal which started to give out odors.' Defendant took out a piece of the cast so he would have access to the base of the toe where the ulcer was.

February 1, 1951, the cast was again removed and a knee length cast substituted for it. Defendant stated he had worried he would have to take that foot off. Shortly thereafter plaintiff developed a high temperature. Defendant examined him, dressed the wounds on the back of his heel, the heel cord, and the fifth metatarsal, and gave plaintiff some fever pills and shots of penicillin. Plaintiff was confined to his bed at home for a week. Defendant told him there was nothing wrong, that he had the flu. He went to defendant's office where the cast, placed on the leg only a few days previously, was removed. As defendant unwrapped plaintiff's foot he said, 'Well, I found it,' an abscess on the bottom of the foot. Plaintiff was taken to the hospital where the foot was lanced, the pus was taken out and antibiotics, etc., were given him. The hole in the heel was treated and § salve was also put on the fifth metatarsal and was changed frequently. On this occasion plaintiff remained in the hospital twenty six days until March 8.

April 6, 1951, plaintiff went to the State University hospital at Iowa City. Dr. Newman who attended him, testified there was a reddish blue discoloration over the top of his foot and over the second, third and fourth toes and the remaining stump of the fifth toe. There was complete anesthesia of the toes and of the foot from the middle forward, also a circular ulceration on the outside of the foot near the midportion of the base, in which there was necrotic material. The bone was not covered and could be contacted with sterile instruments. On the under-surface was a small would from which a gauze pack projected and which exuded thin, yellow pus, on pressure. You could not feel the arteries or any pulse in the foot. Dr. Newman's diagnosis was, fracture, simple, mid shaft left tibia and fibula, united, a fair alignment. Osteomyelitis, left fifth metatarsal head. Abscess, sub-plantar left foot. Amputation, distal phalanx, 5th toe, left. April 9 an operation was performed, dead tissue and infected soft tissue was removed, also the head of the fifth metatarsal bone, from which the fifth toe had projected.

Plaintiff made approximately twenty five trips to the State University Hospital where four operations were performed on his foot and ankle. He also consulted doctors in Omaha and went through the Mayo Clinic at Rochester, Minnesota. Finally it was decided to amputate the leg. This decision was based largely upon evidence of persistent recurring infection in the foot which had become deformed and was painful, and the fact that the ankle had become stiff. The amputation was done July 14, 1953.

Dr. Newman testified organisms are present in the blood from time to time and that perhaps the most important protective mechanism to fight them off is the integrity of the circulatory...