Grubbs v. Mcshane

• Decision Date: 15 October 1940
• Citation: Grubbs v. Mcshane, 144 Fla. 585, 198 So. 208 (Fla. 1940)
• Parties: GRUBBS v. McSHANE.
• Court: Florida Supreme Court

198 So. 208

144 Fla. 585

GRUBBS v. McSHANE.

Florida Supreme Court, Division A.

October 15, 1940

Rehearing Denied Nov. 6, 1940.

Error to Circuit Court, Dade County; Paul D. Barns, Judge.

Personal injury action by E. M. Grubbs against James K. McShane.To review an adverse judgment, plaintiff brings error.

Affirmed.

COUNSEL

Hendricks & Hendricks, of Miami, for plaintiff in error.

McKay Dixon & DeJarnette, of Miami, for defendant in error.

OPINION

THOMAS Justice.

In this casethe plaintiff-in-error insists that the evidence established the negligence of the defendant-in-error defendant in the trial court, and that the judge usurped the prerogatives of the jury when he instructed a verdict in favor of the defendant at the close of all the testimony after having denied a similar motion when the plaintiff had rested.

We will dispose of the controverted points in that order.

The alleged injury for which the plaintiff attempted to prove the defendant responsible grew out of the treatment by the latter of a condition described as phlebitis, or commonly known, in the vernacular, as 'milkleg'.

As a preface to our summary of the facts developed by the plaintiff and the law applicable to them, we detail the negative statements of the plaintiff-in-error, by his counsel, that the issues may be narrowed to the ones necessary to be answered to determine this litigation.

It is said by him that no criticism is offered of the use of heat in the treatment of phlebitis; that there was no error in the diagnosis; that no negligence because of unsuccessful treatment is claimed.Further, no contention is made that liability is predicated on the 'skill that he[defendant] possesses' but did not use.

The positive position of the plaintiff-in-error is that the manner of applying the treatment was negligent, or to quote his brief 'it is simply a question of fact from the evidence * * * to determine whether or not such treatment is the usual and customary treatment by physicians and surgeons in the same locality treating the same kind of disease'.

The plaintiff was stricken with appendicitis and an appendectomy was performed on him, which required his remaining abed for fifteen days.Soon afterward he suffered a very severe pain in the lower part of the left leg, and in an effort to alleviate it, a liniment was applied.The defendant, a practicing physician, was summoned and when he arrived, was told of the use of the liniment.He diagnosed the cause of the pain as phlebitis, and advised the application of heat to the affected area.Following out his instructions, a cradle was constructed from barrel staves sawed in half, to which two forty-and one fifty-watt electric light bulbs were attached, and the cradle was placed over the injured leg, and covered with a blanket to retain the heat of the lighted bulbs, which were distant from the leg six or seven inches.The physician directed that an icepack be fixed over the groin, and that the foot should be elevated and the patient kept quiet.From time to time hypodermic injections were given to relieve the pain.Before the cradle was constructed, the doctor left the patient and did not call upon him again until the following day.Meanwhile, the heat was continuously applied.On the physician's return he approved the apparatus, and discovered that a water blister of considerable size had formed on the leg between the ankle and thigh.The patient complained of discomfort and asked that the cradle be removed, which he was told could not be done because it was necessary to a proper treatment of the disease, and he was also informed that the water could not be drained from the blister.In accordance with the instructions, the lights remained burning continuously for about three days, and then three bulbs of fifteen watts each were substituted for the original ones.The cradle then remained for eighteen days and was removed.At the expiration of that time, the blister burst.Subsequently, ulcers formed in the affected area of the leg.

Phlebitis is a condition which not infrequently results from operations, and in spite of the care taken by the surgeon, it is unpredictable and unpreventable, and simply means that a blood vessel has become obstructed or 'occluded by virtue of a...