Harris v. Smith

• Decision Date: 24 March 1967
• Docket Number: No. 18378.,18378.
• Citation: 372 F.2d 806
• Parties: Theodore A. HARRIS, Father and Next Friend of Patrick Harris, a Minor, Appellant, v. Richard D. SMITH, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

372 F.2d 806 (1967)

Theodore A. HARRIS, Father and Next Friend of Patrick Harris, a Minor, Appellant, v. Richard D. SMITH, Appellee.

No. 18378.

United States Court of Appeals Eighth Circuit.

January 11, 1967.

Rehearing Denied March 24, 1967.

Alfred A. Fiedler and Stephen E. Sturek, Jr., Omaha, Neb., for appellant.

L. J. Tierney, of Cassem, Tierney, Adams & Henatsch, and Martin A. Cannon, Omaha, Neb., for appellee.

Before VOGEL, Chief Judge, MATTHES, Circuit Judge, and DUNCAN, Senior District Judge.

VOGEL, Chief Judge.

Dr. Theodore Harris, appellant herein, instituted this action as father and next friend of Patrick Harris, a minor, alleging that medical treatment and malpractice by Dr. Richard D. Smith, defendant-appellee, was responsible for the amputation of his son Patrick's right arm. Negligence and malpractice were alleged in the following particulars:

"(a) In failing to administer any antibiotics, or tetanous sic toxoid or antitoxin.

"(b) In enclosing the compound fracture in plaster initially in a long arm cast from the elbow into the hand.

"(c) In failing to apply only a half-cast with traction on the distal fragments and the wound allowed to drain for several days until all danger of infection was under control and then doing a secondary closure.

"(d) In failing to properly clean the wound of fragments of gravel, bits of leaves, pine needles and dirt.

"(e) In failing to recognize the appearance of gas gangrene symptoms such as apprehension, swelling of the fingers and pain, fever and toxicity and to properly treat the same when he did recognize said symptoms on July 10, 1962.

"(f) In failing to x-ray the arm with the cast on, or to check on early stages of infection."

Damages were claimed for (1) pain, suffering and permanent disability in the amount of $300,000 and (2) hospital and medical expenses of $2,126.80. The case was tried to a jury, which found in favor of the defendant and judgment was entered accordingly. Motion for a new trial was denied by the District Court. This appeal followed.

On July 7, 1962, Patrick Harris, at that time fifteen years of age, fell from a tree while caddying at the Happy Hollow Country Club in Omaha, Nebraska. As a result of this fall he sustained a compound fracture of the right ulna and radius near his wrist and a dislocation of the elbow of his right arm. The record indicates that the force with which he hit the ground and the manner in which the bones of his arm were driven into the earth resulted in a particularly dirty wound which necessitated the exercise of special precaution. No attempt was made to treat the wound or set the broken arm at the country club but his arm was immobilized for transportation to Methodist Hospital in Omaha by ambulance.

Dr. Harris, learning of his son's injury, asked a colleague to recommend an orthopedic surgeon and upon this recommendation he contacted Dr. Smith. Dr. Smith first saw Patrick in the emergency room of Methodist Hospital where he was admitted on Saturday, July 7, 1962, at 10:50 a. m. Dr. Smith diagnosed Patrick's injury as a compound fracture of the right forearm with a one-inch laceration wound at the place of fracture, and a dislocated elbow. At the time of admission Patrick's temperature was 98, his pulse 88 and his respiration 20. Morphine was at that time administered for pain and arrangements were made for surgery in the early afternoon. No antitoxins or antibiotics were at this time administered to prevent infection in the wound.

Dr. Smith prepared for the surgery in the normal manner by "scrubbing" and cloaking himself in mask and gown. Patrick was prepared for the operation by nurses who shaved the hair from his arm, washed the arm with a sterilization soap and placed him under anesthetics. When Dr. Smith again saw the boy in the operating room the bones were not protruding and the wound was closed. At the operation the wound was reopened and enlarged to approximately three inches. All tissue that appeared to be damaged was removed. The bones were re-extended through the wound, scrubbed with a brush and the wound was continually irrigated to remove waste particles. The cleansing of the wound took an estimated hour and a half. Betadine was then placed in the wound. The broken bones were reduced and the dislocated elbow was set. The wound was closed and a full circular plaster cast was applied. No provision was made for drainage from the wound by an opening in the cast, elevation of the arm, or treatment with antibiotics or antitoxins for, Dr. Smith testified, he did not believe that the use of these constituted good medical practice at this stage. Following the operation on the afternoon of July 7, 1962, Patrick's temperature was 97, his pulse 100 and his respiration 20.

It is important in this appeal that the post-operative condition of Patrick Harris during the two days preceding the amputation be carefully examined. On July 8, 1962, the hospital records indicate that Patrick experienced a marked variance of temperature in that it climbed from 97 degrees on the previous day following the operation up to a recorded 102.6 and then back to 99.2 degrees. His pulse on that day varied between a high of 110 and a low of 96. His respiration varied between a high of 24 and a low of 20. It should also be noted that during the course of the day he complained extensively of pain, that there was considerable swelling of the arm within the cast, that the fingers were warm, swollen and difficult to move, and that there was a fairly large amount of red drainage on the cast at the place of the wound. Further, the arm, which had not previously been suspended, was at this time suspended on order of Dr. Smith.

On July 9, 1962, Patrick again experienced marked variations in temperature, pulse and respiration similar to, yet more extreme than those of the prior day. His temperature varied from 99.6 degrees up to a recorded 103.4 degrees, back down to 100.6 degrees and again up to 102.6 degrees. His pulse count moved from 100 up to 160 and back to a recorded 112. Respiration count moved from a low of 20 to a high of 32. Throughout the course of the day he complained of severe pain. The hand remained swollen, warm and somewhat blue, although there was apparently still some circulation within the hand. His arm remained elevated throughout the course of the day.

At no time during these two days were antitoxins administered to prevent the spread of infection in the wound.

On July 10, 1962, prior to the amputation, Patrick's temperature fluctuated from 100.6 degrees to 99 degrees and up to 103.6 degrees; his pulse moved from a minimum of 80 to a maximum of 130; his respiration fluctuated between 20 and 24. Through the night the patient complained of extreme pain. His fingers were swollen, warm and blue. Sometime between 7:30 and 8:00 o'clock on the morning of July 10th a diagnosis of gas gangrene was made. That afternoon about 2:00 o'clock he was taken into surgery and the lower arm and hand were amputated. The following day at his father's request Patrick was transferred to the Mayo Clinic in Rochester, Minnesota, where further amputation was found necessary. As a result the elbow and part of the upper arm were amputated.

This extended recital of evidentiary facts is deemed necessary because all of the alleged errors herein have to do with the admission or exclusion of evidence and testimony relating to Patrick's infirmity. Seven doctors testified during the course of the trial, four of whom — Dr. Harris, Dr. Smith, Dr. O'Rourke and Dr. Henderson — had actual knowledge of the aforementioned facts or were personally involved in the treatment of Patrick. The three remaining physicians, Dr. Gaenslen, Dr. Gross and Dr. Burney, testified as expert witnesses, obtaining their knowledge of the instant case from the hospital records, Exhibit 5, and the testimony of other witnesses.

I.

The first alleged error arises from the admission of opinion evidence given in response to hypothetical questions asked by the defense of Dr. Gross and Dr. Burney. The hypothetical questions and the responses thereto are somewhat different and hence each will be considered independently.

The first hypothetical question to be examined is that asked of Dr. Gross. The relevant portions and interrelated testimony appear in the record as follows:

"Q. Dr. Smith tells us that as he saw the young man that day, which is Sunday morning, that the swelling seemed to be normal, the color of the hand seemed to be normal, he had some temperature but not too excessive, the respiration was all right, the pulse was not too excessive, the boy had some anxiety.

"Would there be anything in that situation which you would believe would indicate to anyone that there was anything wrong?

"A. No.

* * * * * *

"Q. I am trying to get this, Doctor, that Monday evening when Dr. Smith saw Patrick his temperature was fairly normal for the condition that he had, his pulse was not excessive, the color of his fingers was the same for that type of an injury that he had; that he checked to see if he was in any way toxic, and it was his opinion that he was about the same as he had been in that respect and that he had some movement, normal movement of the hand for that type of injury, and he concluded that everything was normal, there was no infection, and that outside of being a boy with fractured arm that had been reduced and a dislocated elbow that had been set, that everything was going along normally.

"Under those circumstances would you think that would be a normal conclusion to come to with that type of situation before you?

"Mr. Fiedler: Your Honor, I object to that as attempting to ask a hypothetical question that does not include all of the facts in evidence.

"By the Court: Overruled. He may answer. You may go into it on cross-examination." (Emphasis supplied.)

An examination of the above-quoted testimony clearly reveals that the hypothetical questions asked of Dr....