Gunter v. Whitener
| Decision Date | 08 November 1934 |
| Docket Number | 22960 |
| Citation | 75 S.W.2d 588 |
| Parties | ELSIE GUNTER, a Minor, by CARL A. GUNTER, Her Next Friend, (Plaintiff) Respondent, v. PAUL R. WHITENER, (Defendant) Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court, St. Louis County. Hon. Fred E Mueller, Judge.
Reversed and remanded with directions.
This is a malpractice suit, brought by plaintiff, Elsie Gunter, a minor, by her next friend, against Dr. Paul B. Whitener of Overland, Missouri. The verdict of ten jurors was for plaintiff for the sum of $ 5,950; and from the judgment rendered in conformity therewith, defendant has duly appealed.
On September 6, 1930, plaintiff, then nine years of age, fell and sustained a fracture of both the ulna and the radius in her right forearm, the fracture of the ulna being a comminuted one at a point some two and a half or three inches below the elbow joint, and that of the radius a complete oblique fracture in what is known as the neck of the radius about three-fourths of an inch from the joint.
Defendant undertook the treatment of the case on the day of the accident, and continued as the physician in charge until October 10th of the same year, when plaintiff's parents, dissatisfied with the results he had obtained, discontinued his services and took the child to Dr. Archer O'Reilly, an orthopedic specialist of the City of St. Louis. Suffice it to say, however, that the only treatment recommended by Dr. O'Reilly, or given the child by Dr. Charles A. Stone, his associate, consisted of baking and massage; and that both of such doctors, as well as numerous other physicians, testified that the course of treatment followed by defendant in handling the case was a proper and well recognized procedure such as they themselves would have followed, and that considering the nature of the injury and the great difficulty to be encountered in the reduction of all such fractures, the result obtained was good.
There is no dispute about the fact that plaintiff's fractures healed so as to leave a bowing of both the ulna and the radius, and with the head of the radius attached to the side of the shaft rather than with the two ends of the bone in apposition. Due to such imperfect alignment there is a limitation of movement as respects pronation and supination of from fifty to seventy-five percent., accepting plaintiff's version of the case as the correct one, but with flexion and extension practically normal, if not entirely so. The doctors seemed generally to agree also that by reason of plaintiff's youth, some degree of improvement could be expected from natural bone changes and development in the course of her normal growth in the years to come.
Plaintiff's case was founded and submitted to the jury solely upon the idea of defendant's negligence in the treatment of her injuries, the precise theory of the submission being that he negligently and carelessly failed to bring the broken bones into alignment at the point of fracture, and negligently permitted the bones to remain out of their normal and proper relation to each other while uniting, when, by the exercise of due care, he could have placed the bones in their proper alignment and in contact with each other and could have held them in alignment at the point of fracture until healing was accomplished, and that as a proximate result of all of such carelessness and neglect on his part, plaintiff's arm was caused to become lame and disfigured.
The answer was a general denial, coupled with an affirmative averment to the effect that the treatment given plaintiff by defendant was in accordance with accepted medical knowledge, learning, and skill, and that he was not negligent in the manner charged in the petition.
Though defendant unavailingly demurred according to the usual practice, both at the close of plaintiff's case and again at the close of the whole case, there is now no claim made of the insufficiency of the evidence to have made a case for the jury, and consequently our statement of the facts need not go to the length that would otherwise be required.
It will be enough to say that upon undertaking the treatment of the case defendant had X-ray pictures made which disclosed the full nature and extent of the fractures, and that he manipulated the fragments into position as well as he was able, and then placed board splints anterior and posterior on the forearm for purposes of immobilization. Some four days later, after the swelling had subsided somewhat, he changed the dressings and put on a posterior, wire, right-angle splint made of quarter-inch mesh, extending from slightly above the elbow down to the wrist, with padding used so as to force the radius into position by putting mild pressure upon it.
This type of treatment continued until September 17th, when the arm was taken out of the basket splint, and after being extended was put into a straight board splint, with pressure over the area of the fractured radius. On September 22nd, another X-ray picture was made which disclosed an imperfect alignment of the radius, and at defendant's suggestion, and with the consent of plaintiff's parents, plaintiff was placed under an anaesthetic, and, by manipulation, a part of the fibrous tissue around the radius was broken down and the two ends of the bone placed more nearly in apposition. A splint was thereupon placed upon the arm in extension, with pressure applied over the area of the fracture in an effort to hold the two ends of the bone in alignment; and save for occasional readjustments of the splint and padding, and later, after the splint was removed, for the suggestion that plaintiff begin making some slight use of her arm, defendant did nothing further towards the reduction of the fractures, his connection with the case being terminated on October 10th, as we have already pointed out, when he was discharged, and the child taken to Dr. O'Reilly.
Plaintiff put two doctors upon the stand, one a Dr. C. A. Meredith, who had closed his office and given up most of his practice in 1913, and the other Dr. Charles R. Ozias of 2101 South Jefferson Avenue, in the City of St. Louis.
Dr. Meredith testified that the proper treatment would have been by traction on the arm, that is, to have straightened the ulna so as to have permitted the radius to come into apposition with the detached head, and that such procedure should have been employed as soon as possible after the injury, before swelling had taken place. At the end of a two-weeks period, after it had been determined that the bones were not in alignment, he thought that an open operation would have been a proper procedure, by which is meant the making of an incision, and the wiring or tacking of the bones together.
Dr. Ozias for his part recommended the manipulation of the bones into position and the use of splints and pressure as proper procedure, this being the identical course that defendant had followed, but thought that an open operation should have been performed during the time that defendant had the child in his care, and while the union of the bones was still in a fibrous state.
Defendant and his witnesses took the position that wiring or tacking could not have been successfully employed because of the smallness of the head of the radius, and that an open operation at any time near the injury would not have been good practice because of the serious damage that might likely have followed, such as the stiffening of the joint, and impairment, not only of pronation and supination, but of flexion and extension as well. Rather they thought that nature should have been given the opportunity to correct the condition, especially in the case of a child of plaintiff's tender years, and more particularly so since an open operation performed later could be done with a far greater degree of safety to plaintiff, and with a much better chance of securing normal function of the arm.
The evidence was further to the effect that while the traction method might have been employed in a hospital, it would have been most impractical in the home, and that the use of splints and pressure was an approved method of procedure properly to be employed by a careful, skillful, and prudent physician and surgeon.
All the doctors agreed that perfect reduction of such fractures as plaintiff had was extremely difficult, and in fact nearly always impossible, regardless of what method of procedure was followed; and also that open operations were attended with certain risks and dangers such as we have already pointed out, including the added risk of infection.
For his first point defendant urges error in the giving of plaintiff's instruction No. 4. This...
To continue reading
Request your trial