Foose v. Haymond, 17794

• Decision Date: 22 April 1957
• Docket Number: No. 17794,17794
• Citation: 135 Colo. 275,310 P.2d 722
• Parties: Helen Louise FOOSE and Rhiney H. Foose, Plaintiffs in Error, v. H. E. HAYMOND, Defendant in Error.
• Court: Colorado Supreme Court

Page 722

310 P.2d 722

135 Colo. 275

Helen Louise FOOSE and Rhiney H. Foose, Plaintiffs in Error, v. H. E. HAYMOND, Defendant in Error.

No. 17794.

Supreme Court of Colorado, En Banc.

April 22, 1957.

Rehearing Denied May 20, 1957.

Max D. Melville, Fred M. Winner, William G. Berge, Denver, for plaintiffs in error.

Paul M. Clark, Lawrence M. Wood, Denver, Robert G. Smith, Greeley, for defendant in error.

KNAUSS, Justice.

The parties appear here in the same order they appeared in the court below, where a motion for a directed verdict was granted and judgment entered dismissing plaintiffs' complaint. To review this judgment plaintiffs are here on writ of error. We shall refer to the parties as they appeared in the trial court, or by name.

Plaintiffs are husband and wife. Defendant is a physician and surgeon practicing his profession in Greeley, Colorado. On March 27, 1953 plaintiff, Helen Louise Foose, fell from a chair in her home and suffered an injury to her left foot. She consulted Dr. Haymond on the date of the accident, and again some two weeks later when she went to him for her periodic checkup, she then being some eight months along in pregnancy. She was delivered on April 20, 1953, defendant being the attending physician. Her complaint alleged that on these three occasions she called defendant's attention to the fact that she was suffering severe pain in her left heel; alleged that defendant was negligent in his care and treatment of her foot in that at no time did he have an x-ray picture taken of said foot or heel and that he 'at no time prescribed proper care or treatment of plaintiff's said injury.' In a second claim, the husband, Rhiney H. Foose, made similar allegations and demanded judgment for medical and hospital expenses incurred, together with damages for loss of consortium occasioned by the disability of his wife.

In his answer defendant admitted that he was the attending physician of plaintiff Helen Louise Foose on March 27, 1953, and in connection with her pregnancy. He put in issue the other allegations of plaintiffs' complaint.

Trial was to a jury. At the conclusion of plaintiffs' evidence counsel for defendant moved for a directed verdict in favor of Dr. Haymond, which motion was not then ruled on by the court, ruling being reserved until the conclusion of all the evidence. When all the testimony was in, the court directed a verdict for defendant and the plaintiffs' complaint was dismissed.

The trial judge gave no reason for granting defendant's motion for a directed verdict. We surmise that he was misled in so doing because from the entire record the jury might conclude that the full measure of damages claimed by plaintiffs could not be recovered; there being some evidence in the case that a subsequent operation performed by Dr. Jacobs might have been necessary even if the fracture had been discovered when Dr. Haymond first examined the injured foot.

Counsel for plaintiffs contend that the evidence submitted was sufficient to require submission to the jury of the question of whether Dr. Haymond was negligent in not advising an x-ray, and in not properly diagnosing the condition of the foot or heel, and, as they claim, failing 'to counsel Mrs. Foose not to walk upon her injured foot for some period of time'. That had the injured member been immobilized the operation subsequently performed by another physician and surgeon would have been unnecessary. That failure to advise Mrs. Foose not to walk on the injured foot increased the 'severity of the fracture' and made 'it impossible for it to heal naturally.'

Counsel further contend that there was a direct conflict in the evidence as to whether there was negligence on the part of defendant, and that there was ample evidence brought forward to create issues of fact to be decided exclusively by the jury.

It appears from the evidence that when Dr. Haymond first saw Mrs. Foose's injured foot he diagnosed the injury as a sprain. Mrs. Foose testified that she told Dr. Haymond that when she fell from the chair she landed on her left heel. This was corroborated by her husband who was present when she claims to have so advised the doctor.

Mrs. Foose was injured in Friday. Following her fall she was found in a prostrate position unable to rise, and was literally carried to defendant's office by her husband. Both plaintiffs testified that she was carried into the defendant's office. Defendant denied this and said she hobbled in on the arm of her husband. Plaintiffs also testified, as did the neighbor who first found Mrs. Foose after the accident, that her foot was visibly displaced. After her visit to defendant's office she was taken home, remained in bed until the following Sunday when her husband procured a pair of crutches which she used thereafter in her efforts to get around until the time of her confinement. About a week following her return from the hospital, Mrs. Foose commenced bearing weight on her injured foot. She decided not to visit defendant again, and around May 14th visited another Greeley physician, Dr. Arford, who, after examination, advised an operation on the injured foot. He also suggested that she not use the foot.

Dr. Arford testified that if 'the patient informs one that she had landed directly upon the heel, falling with the direct force coming upon the heel itself, I think one should at least suspect a fracture of the os calcis. However, I believe again it would depend an awful lot upon the examination and the history given, and the judgment of the physician.' He further testified: 'I would say, upon further examination, if there was any question at all in the mind of the physician, and particularly of [if] the swelling and discoloration was still quite pronounced at this time [28 days after the accident when Mrs. Foose was delivered] that x-ray would be advisable.'

We quote from the testimony of Dr. Arford:

'Q. Doctor, if you had seen the patient immediately after she sustained the fall, and if you did not operate at that very time, how would you have treated the fracture at that time? A. Assuming a fracture had been diagnosed at that time, I would have treated it by immobilization--at least as a temporary measure until pregnancy had terminated.

'Q. What do you mean by immobilization, Doctor? A. The use of a cast.

'Q. Does this type of fracture ever heal from the cast alone? A. They do.

'Q. In your opinion Doctor, could this fracture have healed without the necessity of surgery, if a cast had been applied immediately after the fracture was sustained? A. I am sure the fracture itself, could have healed, Yes.

'Q. All right--counsel asked you if you gave Mrs. Foose any instructions at the time you examined her foot, and I believe, as counsel says, you stated No. Could you tell us why you did not give her any particular instructions at that time? A. I did not feel that any further changes would occur, if she were to continue to use the foot over a period of another week or so. I did not feel any further changes would then occur. What changes had taken place, were then present, and I felt they were permanent there.'

The defendant testified that 'if the patient had told me she landed on her heel, I would suspect a fracture, but she did not tell me that'. He further said that if he had suspected a fracture, 'I certainly would advise an X-ray at once.' No X-ray was taken.

For the purpose of determining the validity of a motion for a directed verdict in favor of defendant, the evidence must be considered in the light most favorable to the plaintiff. Hence we must assume that Mrs. Foose did tell the defendant that in falling she landed on her heel and that a displacement thereof was visible upon the occasion of her first visit to him. The testimony of the defendant as to the applicable standards of diagnosis and treatment in cases of this kind might lead the jury to conclude that the defendant was negligent in not having an x-ray taken; in not putting the foot in a cast, and in not instructing Mrs. Foose to bear no weight on the foot.

There is also competent evidence that a displacement such as plaintiffs claimed was evident, is a danger signal indicative of a fracture. This is admitted by the defendant. Dr. Arford, who performed...