Flynn v. Stearns

• Citation: 145 A.2d 33,52 N.J.Super. 115
• Decision Date: 03 October 1958
• Docket Number: No. A--254,A--254
• Parties: Catherine FLYNN, an infant by her parent and guardian ad litem, Arthur J. Flynn, and Arthur J. Flynn, individually, Plaintiffs-Appellants, v. Thornton STEARNS, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 115

52 N.J.Super. 115

145 A.2d 33

Catherine FLYNN, an infant by her parent and guardian ad

litem, Arthur J. Flynn, and Arthur J. Flynn, individually, Plaintiffs-Appellants, v. Thornton STEARNS, Defendant-Respondent.

No. A--254.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 8, 1958.

Decided Oct. 3, 1958.

Herbert E. Greenstone, Newark, for plaintiffs-appellants (Greenstone & Greenstone, Newark, attorneys; Frederick C. Vonhof, Newark, of counsel).

William P. Braun, Newark, for defendant-respondent (Braun & Hoey, Newark, attorneys).

Before Judges PRICE, SCHETTINO and GAULKIN.

The opinion of the court was delivered by

GAULKIN, J.A.D.

This is a medical malpractice case. There was a verdict for defendant, and plaintiff appeals from the resulting judgment.

On June 2, 1950 the plaintiff, then eight years old, broke her arm. She was taken immediately to a hospital and placed under the care of defendant, a specialist in orthopedics. The defendant diagnosed her injury as a 'super condylar fracture, right humerus.' Defendant twice attempted a closed reduction of the fracture, but the result was not satisfactory. Therefore, on June 13, defendant did an 'open reduction'--that is, with surgery under anesthesia, during which the flesh was cut to expose the bone and the ends of the fracture were joined.

The wound became infected and her temperature rose. Consequently, on the day after the operation defendant split the cast and exposed the wound to allow it to drain. That, and antibiotics and other treatment, gradually lowered her temperature but not sufficiently. Defendant testified that therefore on July 7 he 'opened the wound entirely and put some vaseline gauze in it to keep it open and then the drainage could completely drain out and the wound could heal.' The wound thereafter did heal completely, and on July 18 plaintiff was discharged from the hospital. The union of the fracture was good, and plaintiff makes no complaint about the bone condition which resulted. What plaintiff contends is that the infection which set in after the operation affected the tissue in the elbow in a manner which caused her to lose the ability to bend it. One of defendant's own experts testified that he was 'of the positive opinion that if infection had not developed * * * the child would have obtained a good result.'

When she was discharged from the hospital plaintiff could move her elbow 'over a range of only 20 degrees,' according to defendant's note in the hospital record. Consequently, he directed her to come to his office for physiotherapy. There he testified, 'I worked over her to get motion for a period of two months.' On August 14 he noted 'Patient holds a one pound wt. in hand with elbow on table. This stretches scar tissue at elbow & allows extension. Hand can be raised to mouth. Movt. over 50 range. There is definite progress but still limited flexion. Extension to 135 .'

Defendant treated plaintiff for the last time on September 25, 1950. Plaintiff's parents testified that on that date defendant told them he could do nothing further for the plaintiff, except possibly another operation when she was older, and he terminated the treatments at his office. However, he testified that he did instruct plaintiff and her parents to continue the stretching exercises at home. Those exercises consisted principally of carrying and lifting an iron or other weight for some period each day. Plaintiff never came back to defendant for further examination or treatment after September 25, 1950.

Plaintiff did not continue the exercises. Defendant testified that with the exercises he 'expected * * * that she would have a much better range of motion,' but he admitted he never expected the elbow to go back to normal. There was no testimony as to how long the exercises would have to continue to secure maximum benefit, or what that maximum benefit would be. This action was not started until six years later, and the trial was seven years later. During those years the stiffness in the elbow had increased and plaintiff had lost even the motion she had when she last saw Dr. Stearns. The testimony was that her range of motion had, as the court below said, 'diminished to minimal.'

Plaintiff bases her action against defendant mainly upon two grounds. First, she charges that defendant did not take proper precautions against infection in performing the operation for open reduction. Second, she charges that the open reduction was unnecessary, for had defendant used a portable x-ray while attempting the 'closed reduction'--that is, by manipulation--he would have been able to 'set' the fracture without any operation.

In support of the proposition that the infection was due to defendant's negligence plaintiff adduced testimony that after she entered the hospital and before the open reduction she developed an infection, skin or systemic, which caused purulent blisters on her injured arm, including the area about her elbow; that at such a time an open reduction should not be done except in a great emergency, which admittedly did not exist in the case at bar; that defendant nevertheless did operate in the area of the blisters; and that in addition he took insufficient steps, and allowed insufficient time, to prepare the blistered area for the operation. As a result, said plaintiff's expert, the infection entered the wound, causing the injury.

Defendant denies these charges. He testified that he did use a portable X-ray on the occasions when he attempted the closed reduction; that the blisters or 'blebs' had dried up and healed sufficiently before he operated, to justify the operation; and that he took all the time and the precautions that competent orthopedic specialists took in 1950 to prepare such an arm for the operation.

Plaintiff contends that in that posture of the evidence it was error for the trial judge to charge the jury as he did (emphasis ours):

'* * * If you find that * * * There is no contributory negligence upon this young lady's part, then you would find a verdict for the plaintiff and you would turn then to the question of money damages.

'There is a Defense in this case. The defendant charges that this young lady was guilty of contributory negligence. In other words, they say, assuming but not admitting that the doctor is negligent, nevertheless this young lady was guilty of contributory negligence. The burden of proving contributory negligence is upon the person who asserts it; Dr. Stearns asserts it. I think the theory of that negligence is that this young lady failed to follow the directions which Dr. Stearns ordered at the time he discharged her, which I think was in the month of October.

'You will recall that on that date, when Dr. Stearns discharged her, there was a considerable loss of motion in the elbow. My recollection is that Dr. Stearns said she then had 50 degrees of motion, which has since diminished to 'minimal' which was the phrase they used, and I Suggest to you that the failure to follow Dr. Stearns' instructions--you will remember what they were, something about carrying an iron to stretch those tendons and muscles--Goes perhaps not to the question of contributory negligence of this child but goes rather to the question of whether or not or the extent to which her failure to follow those instructions may have resulted in a greater disability than she would have if she had followed those instructions. * * *'

Later in the charge he said:

'I have Suggested to you that while the defense of contributory negligence by the child is raised, and that while It must be considered by you as to whether her failure to carry out Dr. Stearns' instructions at the time of his separation from the case in October, contributed in any degree to the happening of this accident. If you find that it did, in other words that the child herself, and remember she was then a child of tender years, eight years of age, and could not be held to the standards of a grownup, If she contributed to this happening then she cannot recover in this case, and again your verdict would be no cause for action.

'I further suggested to you, and Suggest again that Perhaps her failure to carry out instructions may go, rather than to her negligence, but to whether or not it aggravated or whether she felt she should take reasonable steps to minimize the injury. * * *'

Appellant contends that this charge was erroneous because 'Negligence of the patient, to constitute a bar to the suit, must have been an active and efficient contributing cause of the injury; it must have been simultaneous and cooperating with the fault of the defendant, must have entered into the creation of the cause of action, and have been an element in the transaction which constituted it. Where the fault of the patient was subsequent to the fault of the physician and merely aggravated the injury inflicted by the physician, it only affects the amount of the damages recoverable by the patient.' This is a correct general statement of the law. 41 Am.Jur., Physicians & Surgeons, sec. 80, p. 199; Annotations: 50 A.L.R.2d 1043 and 17 L.R.A.,N.S., 1242. Appellant says that since here the fault, if any, of the plaintiff was subsequent to the fault of the defendant it was not a proximate contributing cause of the injury, and it should have been submitted to the jury, if at all, only as bearing on the issue of damages, and not as a basis for a finding of contributory negligence.

Although it is frequently said that the 'general rules with respect to the effect of contributory negligence on the right to recover for personal injuries apply in actions for injuries alleged to have arisen from the negligence or malpractice of a physician.' (70 C.J.S., Physicians and Surgeons, § 51, p. 973), it is much more difficult to apply those rules in such cases than in the usual accident case. The reasons for this are obvious, chief among them being that in an accident case we deal ordinarily with...