Harvey v. Kellin

• Decision Date: 06 June 1977
• Docket Number: No. 12659,12659
• Citation: 566 P.2d 297,115 Ariz. 496
• Parties: Meldrum HARVEY, M.D., and Jane Doe Harvey, his wife, Appellants, v. Sandy KELLIN and Hillary Kellin, his wife, Appellees.
• Court: Arizona Supreme Court

Page 297

566 P.2d 297

115 Ariz. 496

Meldrum HARVEY, M.D., and Jane Doe Harvey, his wife, Appellants, v. Sandy KELLIN and Hillary Kellin, his wife, Appellees.

No. 12659.

Supreme Court of Arizona, In Division.

June 6, 1977.

Jones, Teilborg, Sanders, Haga & Parks by Frank A. Parks, Phoenix, for appellants.

Stark & Wood by Rod Wood, Phoenix, for appellees.

STRUCKMEYER, Vice Chief Justice.

Meldrum Harvey, M.D., appeals from a judgment entered on a jury's verdict which found him negligent in treating injuries sustained by Sandy Kellin in a boating accident on Lake Havasu. Jurisdiction was assumed pursuant to Rule 47(e), 17A, A.R.S., Rules of the Supreme Court. Judgment of the Superior Court affirmed.

Dr. Harvey first questions the sufficiency of the evidence to support the judgment, contending that Kellin failed to establish a prima facie case of negligence in that there was not sufficient evidence to establish a standard of care and a deviation therefrom. He also contends that Kellin failed to establish the asserted negligence as the proximate cause of Kellin's injuries.

On appeal, the evidence on the issue of negligence is viewed in a light most favorable to the prevailing party at the trial. E. L. Jones Construction Co. v. Noland, 105 Ariz. 446, 452, 466 P.2d 740 (1970). As so viewed, the evidence establishes that on September 7, 1972, Kellin sustained a transverse fracture to the right tibia when the power boat he was testing became airborne and disintegrated. Kellin was taken to a marina dock where an air splint was placed on his leg. He was transported to Dr. Harvey's offices in Lake Havasu City where his leg was initially examined. He was then taken to the Needles Municipal Hospital in Needles, California, where a plaster cast was placed on his leg from the foot to the upper thigh.

Kellin could move all his extremities when first examined by Dr. Harvey at his Lake Havasu City office. He telephoned Harvey four days after the reduction to complain of pain and certain pain pills were prescribed. Kellin testified that he was still under a lot of pain and that he sweated at night and was unable to sleep. He saw Dr. Harvey on September 15, 1972, but was not physically examined by him at this time. On the 20th of September, Kellin again saw Dr. Harvey and told him that he was experiencing a tingling in his toes. Dr. Harvey just told him to keep the foot elevated. Kellin testified he was unable to dorsiflex his foot on the 27th of September when he again saw Harvey, and that he told him on October 4th or 5th about the numbness he was experiencing in his right foot. He testified that by October 18th he was unable to extend his toes. His testimony was to the effect that Dr. Harvey would reassure him on these visits that "it would all work out in therapy."

On October 28th, Dr. Harvey removed and replaced the cast, but did not ask Kellin to dorsiflex or plantarflex his foot. Kellin testified that at this time his foot was dropping severely. He again expressed concern to Dr. Harvey over the numbness in his foot at visits on November 5th and 21st. Finally, on December 5, 1972, Dr. Harvey examined Kellin and determined that he had a definite footdrop.

Dr. Joseph A. Leake, D.O., testified that he visited Kellin a week to ten days after the accident and that Kellin complained then of numbness and pain, and of trouble in moving his toes. He also testified that Kellin was unable to move his toes a month later. Dr. Leake acknowledged that a possible cause of the damage to Kellin's peroneal nerve could have been by injury sustained in the boat accident. He testified, however, that if the peroneal nerve had been damaged in the boat accident, it would have been possible for Kellin to dorsiflex and plantarflex his foot, but that he would have been unable to move his toes as he did.

Dr. Robert S. Barbosa, D.O., examined Kellin on December 6, 1972, and placed his leg in a cast the following day. He testified that at this time Kellin had peroneal neuropathy of the right peroneal nerve. Dr. Barbosa was of the opinion that no neuro-vascular deficit was present immediately after the injury. He stated that if a person has tingling and pain, a physician should not hesitate to open the cast immediately. He testified that after a fracture is reduced, the possibility of swelling and a snug cast exists, which can cause irritation to a nerve, most commonly the peroneal nerve. For this reason, he felt that a physician should always check for any neurological injury on a follow-up examination.

Hillary Kellin, Kellin's wife, testified that she had a telephone conversation with Dr. Harvey on December 7, 1972. At that time she told him that her husband had gone to Phoenix for other medical opinions concerning his problems. She said she told Dr. Harvey about the trouble her husband was having with numbness and tingling in his toes and that he replied by saying that it would all work out in therapy and that he was not worried. Dr. Harvey's opinion expressed at the trial was that Kellin suffered a stretch injury to the peroneal nerve in the boat accident which did not reveal itself until after October 28, 1972.

In Arizona, a general practitioner in treating a patient must use the degree of skill and learning exercised by general practitioners in the same or a similar community. Kronke v. Danielson, 108 Ariz. 400, 403, 499 P.2d 156 (1972). This standard must be shown by affirmative evidence, and a deviation from it must be established by expert medical testimony unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Boyce v. Brown, 51 Ariz. 416, 421, 77 P.2d 455 (1938); Riedisser v. Nelson, 111 Ariz. 542, 544, 534 P.2d 1052 (1975). The standard of care and deviation therefrom can be shown by the testimony of the defendant. Vigil v. Herman, 102 Ariz. 31, 34, 424 P.2d 159 (1967); Stallcup v. Coscarart, 79 Ariz. 42, 46, 282 P.2d 791 (1955).

The standard of care in Lake Havasu City at the time of appellant's treatment of appellee was testified to by Dr. Arthur A. Arnold, M.D. Dr. Arnold testified that he was a general practitioner in Kingman, Arizona for 26 years; that Kingman and Lake Havasu City are similar communities, both located in Mohave County; that two and a half years prior to the trial, the only hospital in Mohave County was located in Kingman; and that he had treated thousands of long bone fractures. In response to a question as to his opinion of the standard of care in Mohave County in a situation where the tibia is fractured and a long leg cast from the upper thigh region to the bottom of the foot is applied, Dr. Arnold testified:

"The standard would require first of all, I would like to say the case (sic) should be applied properly.

From then on the advice to the patient is extremely important and probably more important is the observation of the doctor as to the progress of such fracture, which would include the looks of the foot or toes, the part that was left visible, whether it was cyanotic, whether it was high cyanotic, I mean bluish in coloration, whether it was swelling, whether it was white and blanched.

I will explain in a minute why these are important. Whether the sensation is missing, both by pin pricking and by the individual sensation, and other vasomotor, for instance, sweating of the extremity. These are factors that must be watched for, and perhaps I missed the most important of all, pain, excruciating pain after a cast is put on is by far the most important one thing a patient must be warned of, and usually they will tell you about that."

Dr. Arnold testified as to what a general practitioner in Mohave County would do when clinically examining positive reduction after the reduction has been made:

"Yes, I think I understand the question. From the standard of the people in Mohave County, I can't vouch for all that. I will say the standard probably maintained by most of them. Those I have watched and those I have seen, and it's been quite a number. I think we all neglect at times very careful observation of a fracture as I mentioned before. When an individual comes in we casually look at it and probably not accurately enough assess it both from the standpoint of the temperature of the toes, sensitivity of them, the ability to move them, all these things, factors, but this should be done, and the patient warned that even if two days hence, there is no numbness at the time, please notify me.

This is an important thing. I think this is standard; is that what you mean?"

Dr. Harvey testified that he knew when he treated Kellin that a casted extremity had to be watched carefully and that a physician should be careful about problems of circulation, excessive swelling, numbness, tingling, pain, and loss of motor function in any casted extremity. He agreed that this knowledge was basic and fundamental. In referring to a medical treatise, ...