Gallagher v. Kermott

• Decision Date: 12 December 1927
• Docket Number: No. 5392.,5392.
• Citation: 56 N.D. 176,216 N.W. 569
• Parties: GALLAGHER v. KERMOTT et al.
• Court: North Dakota Supreme Court

56 N.D. 176

216 N.W. 569

GALLAGHER

v.KERMOTT et al.

No. 5392.

Supreme Court of North Dakota.

Dec. 12, 1927.

Syllabus by the Court.

In an action for damages for malpractice, where the plaintiff claimed to have lost his leg as a result of negligence of the defendant in treating an injured foot, it is held that, where the defendant's acts or omissions may be either consistent or inconsistent with proper practice, the burden is on the plaintiff to establish by competent expert testimony the negligence alleged.

The doctrine of res ipsa loquitur has no application in a malpractice case, and an unfortunate or bad result does not supply proof of negligence.

Where the evidence is such that the inference of negligence is purely a matter of speculation, it is insufficient to support a verdict.

The evidence is examined, and, for reasons stated in the opinion, held to be insufficient.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by Stanley Gallagher, a minor, by Harry Gallagher, his guardian ad litem, against L. H. Kermott and another, dismissed as to the unnamed defendant. From a judgment for plaintiff and an order denying a motion for judgment non obstante, the named defendant appeals. Reversed, and a new trial granted.L. J. Palda, Jr., C. E. Brace, Robert W. Palda, and E. R. Sinkler, all of Minot, for appellant.

H. L. Halvorson, of Minot, for respondent.

BIRDZELL, C. J.

Plaintiff sued for alleged negligence in the care of and treatment for an injury to his foot. The action was dismissed as to the defendant St. Joseph's Hospital Association and judgment was rendered in favor of the plaintiff against the defendant Kermott, a physician, upon a verdict of a jury. A motion was made for judgment non obstante. The appeal is from the judgment and from the order denying the defendant's motion. Ignoring allegations of negligence against the hospital as a defendant, the amended complaint charges the remaining defendant with inducing the father of the plaintiff to consent to the removal of the plaintiff from Trinity Hospital in Minot to St. Joseph's Hospital, the defendant agreeing that he would immediately repair to the hospital and give the plaintiff care and attention, “but that contrary thereto, he failed and neglected to appear at said hospital or to give said plaintiff any care or attention, or to examine his said injury or to give any orders with respect thereto, except that he ordered and directed the said St. Joseph's Hospital, by and through his agents and employees, to place a tourniquet upon the plaintiff's leg at the knee or about at the knee in order to stop the flow of blood of said injury; that in truth and in fact at that time the said injury was bleeding only slightly, and no tourniquet, according to this plaintiff's best knowledge, information, and belief, was necessary or expedient or required”; that pursuant to the orders of the defendant, the hospital, through its employees and agents, caused a tourniquet to be adjusted upon the leg of the plaintiff from 12 o'clock midnight until the next forenoon; that frequently during the night the hospital, through its agents and employees, was advised that the plaintiff was in severe pain by reason of the tourniquet but that the same was not removed, and that “by the said tourniquet, the blood supply to that portion of the boy's (plaintiff's) limb below the said tourniquet had been shut off to such an extent that that portion of said leg was, in common parlance, and as a matter of fact, dead”; that by reason of the shutting off of the blood supply through the failure of the defendant to care for or protect the foot against infection a septic condition arose; that the defendant did not advise the plaintiff or his father of the fact that the blood supply had been shut off, nor of the septic condition which had arisen, but that he did proceed to amputate the great toe, which operation he advised as necessary; that he thereafter advised that there was infection present which necessitated the amputation of the foot, which operation the defendant proceeded to perform; that some time thereafter while the plaintiff was under the care of the defendant, “the said plaintiff's leg being gangrenous, the said leg amputated itself and broke or dropped off just below the knee; * * * that thereupon the plaintiff was advised through his said father, by the said defendant L. H. Kermott, that another operation would have to take place immediately or that otherwise the plaintiff would surely die”; that while the plaintiff was being cared for by the defendant he was “so negligent and careless, and did carelessly and negligently and through want of due care, permit infection to develop in said injury and through the tourniquet placed on said leg by order of the defendant L. H. Kermott by the defendant St. Joseph's Hospital, and which said tourniquet was left upon said leg for an unreasonable length of time, and for such length of time as caused said member to become dead, and in consequence thereof a septic condition ensued and gangrene set in, resulting and necessitating the amputation of said leg and the disease of the thigh bone, which is still in a diseased condition, and the said diseased thigh bone and the necessity of amputation of said leg, at or near the thigh, was caused by the negligent and careless acts of these defendants.”

On the evening of December 9, 1924, the plaintiff, a boy of 14 years of age, received an injury while crossing a railroad track in Tagus, which was temporarily blocked by a train (see Gallagher v. Great Northern Railway Co. [N. D.] 212 N. W. 839), his right foot being caught between the bumpers of two cars, or between a bumper and a car. After sustaining the injury the plaintiff was taken about 50 yards to a hotel in Tagus, where he received first aid, which consisted in wrapping the foot with medicated cotton and cloth. He was taken to Minot in a Ford sedan and arrived at Trinity Hospital between 10 and 10:30 o'clock p. m. Meanwhile the defendant Kermott had been notified that the plaintiff was coming and had made arrangements to enter him in St. Joseph's Hospital. The defendant, however, was called to Trinity Hospital about 11 o'clock, where he saw the plaintiff, saw the injured member, and gave some instructions for his care. The evidence is in dispute as to any treatment given by the defendant at that time, as will later appear, but the injured member was bandaged at Trinity Hospital. The defendant and the plaintiff's father left the hospital together, and, as a result of discussion of the hospital arrangements in which comparative X-ray facilities of the two hospitals entered to some extent, the plaintiff's father returned to Trinity Hospital and caused the plaintiff to be removed to St. Joseph's Hospital, which institution he entered at about 12:30 o'clock a. m. December 10, 1924. Directions were given by the defendantto the nurse or nurses in charge to apply a tourniquet, if necessary, and a tourniquet was applied. The manner of applying and the length of time it remained tight is involved in serious dispute in the record. It was completely removed, whether from a tightly clamped position or a slackened position, at about 7 or 7:30 o'clock in the morning. X-ray pictures of the injured member were taken that morning (the 10th), and the plaintiff was taken, at about 11 o'clock, from the X-ray room to the operating room, where, after a general anæsthetic was administered, his wounds were examined by the defendant and another physician. After consulting the plaintiff's father, the defendant removed the great toe and otherwise dressed the plaintiff's wounds. The X-ray pictures disclosed no broken bones, but the great toe was dislocated to such an extent that the bones were exposed. The evidence is in conflict as to the extent of the other injuries, but it clearly shows an open wound, whether deep or somewhat superficial is in dispute, on the instep and further abrasions on the under side of the foot. On the following day, unmistakable symptoms of gangrene being present, the defendant notified the plaintiff's mother of the necessity for amputation of the foot, and, after consulting the plaintiff's father, the foot was amputated that afternoon. The gangrenous condition continued and some days afterward the leg was amputated at the knee joint. The plaintiff maintains that the leg below the knee sloughed off as a result of the gangrene, but it is undisputed that surgical attention was given by the defendant at the time of severance. About the 12th of January the plaintiff was placed in the care of another physician and removed to Trinity Hospital. Other operations were performed both there and later at a hospital in Rochester, Minn. The plaintiff has lost his leg, and his health is impaired.

There are numerous assignments of error, many of which it will be unnecessary for us to consider. The assignments that go most directly to the merits of the action are those which are concerned with the sufficiency of the evidence to support the verdict. It is contended that there is not sufficient evidence to establish any negligence on the part of the defendant. Construing the complaint liberally, it would seem to charge negligence, consisting in the failure of the defendant to give prompt treatment to disinfect the wound and in causing a tourniquet to be unnecessarily and so improperly applied as to result in gangrene. These assignments cannot be properly considered, except in the light of a careful survey of the evidence bearing upon them. The transcript of the testimony covers approximately 400 pages, and it is manifestly impossible to abstract all of it in an opinion. Of necessity, therefore, and at the risk of possible omissions of important items of evidence, we shall set forth, in abstract form, the salient testimony.

The defendant Kermott, being called for cross-examination under the statute, testified that he was called...