Downer v. Veilleux

• Decision Date: 02 July 1974
• Citation: 322 A.2d 82
• Parties: Genevieve DOWNER, Executrix of the last will and testament of Christie Lajoie v. Dr. Lucien VEILLEUX.
• Court: Maine Supreme Court

Page 82

322 A.2d 82

Genevieve DOWNER, Executrix of the last will and testament of Christie Lajoie v. Dr. Lucien VEILLEUX.

Supreme Judicial Court of Maine.

July 2, 1974.

Daviau & Daviau by Jerome G. Daviau, Robert J. Daviau, Waterville, for plaintiff.

Robert W. O'Connor, Augusta, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

Christie Lajoie appealed from a decision of the trial Court granting the defendant's motion for a directed verdict in a medical malpractice case. She recently died prior to the determination of her appeal and the representative of her estate has been substituted as party plaintiff pursuant to Rule 25(a), M.R.C.P. ¹ The term 'plaintiff', however, will be used throughout this opinion as referring to Christie Lajoie, the plaintiff below and the original appellant to this Court. We deny the appeal.

The plaintiff was involved in an automobile accident on October 24, 1963. She sustained numerous and serious injuries. She was admitted to the hospital in a condition of shock and close to death. Her injuries included a fracture of the left knee, a compound comminuted fracture of the distal portion of the right femur extending into the joint of the knee and across the kneecap, an impacted fracture The defendant, Dr. Veilleux, is a general surgeon and he ministered to the plaintiff upon her admission to the hospital. In his testimony, he elaborated on the plaintiff's injuries and related the order in which he attended to them. He first treated the plaintiff for shock, since this was an immediate 'life-threatening' condition. The next item of priority was to treat the distal fracture of the right femur. The bone was badly shattered and 'the knee joint was wide open.' The kneecap was obviously fractured and there was visible muscle exposed in the open joint. In addition to the obvious and primary danger of infection with such a fracture, the defendant testified that, if the knee joint were to be left open for 'more than a day or so,' the cartilage would be destroyed, resulting in a chronically stiff and useless knee. Accordingly, when the plaintiff's condition stabilized somewhat on the following day, the defendant surgically reduced the fracture to the distal portion, inserted a pin below the knee, and applied traction. The knee eventually healed properly and the plaintiff does not contend that the defendant's treatment in this regard was in any way unsatisfactory.

of the right femoral neck, fractures of the skull, and multiple contusions and abrasions. The plaintiff's only complaint in the instant action is confined to the fracture of the right femoral neck which failed to heal properly, resulting in a permanent partial disability.

For several reasons, the defendant elected not to attempt to reduce the fracture of the right femoral neck. X-Rays of the hip indicated that the broken bones were properly aligned and well impacted at the fracture site. Furthermore, the defendant testified that any manipulation of the bones at the upper end of the femur would have disturbed the fracture at the distal end.

The defendant's testimony that the fracture to the distal portion made it mechanically almost impossible to do anything with the fracture of the femoral neck was supported by the testimony of the only orthopedic specialist who testified, Dr. Stinchfield. The latter also concurred in the defendant's testimony that, with an impacted intracapsular fracture of the femoral neck such as plaintiff's, healing often results even without reduction of the fracture.

In the instant case, however, healing did not result and the plaintiff claims that this failure is attributable to the defendant's negligence. Specifically, the plaintiff contends that the defendant was negligent in failing to reduce the fracture and in applying traction rather than another form of treatment, such as nailing the fractured femoral neck and applying a cast to immobilize the fracture site. Additionally, the plaintiff argues that the defendant was negligent in failing to consult with an orthopedic specialist, in failing to advise her of the fact that the fracture had not been reduced and of alternative courses of treatment, and in allowing premature exercises and weight-bearing.

THE DIRECTED VERDICT

In considering whether the evidence would have been sufficient to sustain any of the plaintiff's tendered issues for jury consideration, we view the evidence in the light most favorable to the plaintiff, but we must bear in mind that the burden is upon the plaintiff to prove both the negligence of the defendant and proximiate causation between the defendant's negligent conduct and the plaintiff's injuries, and, in cases such as this, that expert testimony is essential if that burden is to be met. Cyr v. Giesen, 1954, 150 Me. 248, 108 A.2d 316 (Trans-cervical fracture of femur).

In Cyr, we recognized an exception to the general rule under circumstances where the negligence and harmful results are so glaringly apparent as to lie within the common knowledge of laymen. But, as stated in Cyr, this case

'concerns such technical and involved medical procedure that it rules out any The medical aspect of this case was developed through the testimony of the medical witnesses consisting of Doctor England, an internist and neurologist, the defendant, Doctor Veilleux, both of whom were called by the plaintiff, and Doctor Stinchfield, who testified for the defense.

possibility of understanding on the part of a layman as to its medical nature and it is therefore self evident that this is not a case falling within the exception of the general rule relating to expert medical testimony in malpractice cases.'

Dr. England's testimony was obviously presented for the purpose of proving plaintiff's claims in her complaint that Dr. Veilleux was negligent in his treatment of the impacted fracture of the right femoral neck, in his failure to bring in an orthopedic specialist for the purpose of repairing and treating said fracture, and in his failure to inform the plaintiff respecting several alleged courses of treatment available and obtaining her consent for the particular treatment chosen.

His testimony may be summarized as follows: He could not say what a physician should do first in treating a patient in plaintiff's condition, because the patient had more than one fracture. A fracture should be reduced, but this is not necessarily true in all cases. He could not say that the plaintiff's hip fracture should have been reduced upon her admission to the hospital. As far as the witness knew, this may not have been possible in view of the plaintiff's other complications.

When asked whether union of the broken bones could be expected from a four-to-six-months period of traction, he answered that this would depend on 'the situation of the fragments.' He did not elaborate on what was meant by this phrase. He further testified that some fractures have been completely healed by traction alone.

According to the witness, the plaintiff's symptoms indicated a need for reduction of the fracture, but he could not say whether traction alone would have been sufficient to effect that reduction. The failure to reduce could have been one of the causes for the ultimate non-union. Had it been possible, he would like to have seen the fracture 'pinned.' A pin would have provided more stable immobilization, if it could have been satisfactorily placed. However, the several complications which the patient originally experienced rendered pinning impossible at that time.

Dr. England did not know whether pinning the fracture could have been accomplished at any subsequent time, although he would like to have had it done 'as soon as possible.'

The witness was asked whether a failure to 'take care of the hip' would be detrimental to the patient's health. He answered that this was a matter for the judgment of the doctor in charge. He personally did not know how he would have felt about it.

He further testified that the patient in this case did in fact experience a 'poor result.' However, he was not sure of the reason for this result. He testified that the presence of the fracture line in an x-ray dated January 31, 1964 would indicate that the fracture had not yet healed. He could not say that the fracture could have been pinned at that time although he 'would think' that it would have been timely.

A spica cast would have given more secure immobilization than traction, but the witness could not say whether it was good or bad practice simply to use traction here in view of the patient's other complications. The witness answered unresponsively when asked for his opinion as to whether the actual treatment administered was 'adequate.' The method employed (traction) was not necessarily bad; in fact, he testified, traction might have handled both fractures very well. One of the reasons why traction is not always effective is that the alternating muscle contractions would have some tendency to vary the Dr. England did testify that it was 'bad practice' not to have consulted an orthopedic specialist. He would have expected 'better handling' of the patient's hip. The only explanation given for the phrase 'better handling' was that an orthopedic specialist might have been able to give more direct attention to the fractured hip.

traction on the fracture line. Given the same conditions of healing, all fractures would have healed at their 'usual rate;' there was some reason why the fractured femoral neck did not heal. One of the reasons for non-union of fractures may be improper reduction. Another possible cause could be premature weight-bearing. Dr. England did not testify that these were the exclusive or even probable causes of non-union in general or with respect to this patient.

Finally, Dr. England testified that he would say it was 'bad practice' to proceed with the treatment without advising the patient as to...