Isgett v. Seaboard Coast Line Railroad Company
| Citation | 332 F. Supp. 1127 |
| Decision Date | 31 August 1971 |
| Docket Number | Civ. A. No. 70-315. |
| Court | U.S. District Court — District of South Carolina |
| Parties | Franklin D. ISGETT, Executor of the Estate of John F. Isgett, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY, Defendant. |
COPYRIGHT MATERIAL OMITTED
Ellis I. Kahn, of Solomon, Solomon & Kahn, Charleston, S. C., James P. Mozingo, III, Darlington, S. C., for plaintiff.
Hugh L. Willcox, of Willcox, Hardee, Houck, Palmer & O'Farrell, Florence, S. C., for defendant.
John F. Isgett, deceased, originally commenced this action for injuries, pain, suffering, etc., allegedly resulting from the negligence of defendant in failing to provide Isgett a safe place to work. The case is prosecuted under provisions of the Federal Employers' Liability Act.1 After the death of original plaintiff on December 6, 1970, his son, by consent, was substituted as fiduciary plaintiff under provisions of Section 10-2092 South Carolina Code of Law, Annotated, 1962, as amended. Included as a part of the negligence relied on for recovery was malpractice3 or dereliction of duty.4 It is admitted that the immediate cause of original plaintiff's death was coronary and not negligence of defendant.
Defendant's answer admits the employment of the late plaintiff, admits knowledge of his diabetic condition, and admits that he was examined by a company physician May 2, 1967 and certified as being able to return to work. As an affirmative defense defendant pleads Isgett's own negligence in failing to use any care or caution for his own well-being, failing to do anything to prevent further foot trouble, and failing to advise defendant he had trouble with his feet.5
After hearing the testimony, and reviewing same as transcribed by the Official Reporter, rereading the depositions, and examining the exhibits, this court, in accordance with Rule 52(a)6, Federal Rules of Civil Procedure, upon the credible evidence revealed by and extracted from the record before it publishes its
1. The late John F. Isgett began employment with the predecessor of the defendant corporation in approximately 1945 as an oiler or helper. He was laid off from this employment in 1949 or 1950 for approximately six to eight months, was later re-employed. At the time he was re-employed, physical examinations were made by physicians under employment and supervision of the railroad, and it was determined or discovered at that time that he was suffering from diabetes mellitus. This man, who had minimal education, was put to work as a car man. From time to time thereafter, over the years, Isgett received other physical examinations at the hands of railroad medical examiners, and it is admitted that the railroad knew and these examinations continued to reveal that he was suffering from diabetes mellitus.
2. On December 16, 1966, Isgett was admitted to Saunders Memorial Hospital in Florence, South Carolina by his private physician, Frank B. Lee, M. D., with a diagnosis of "diabetic arteriosclerosis, right leg, with circulatory insufficiency." The physical examination of his legs at that time revealed: (1) atrophic skin right foot, (2) no pulses right foot, and (3) right foot cool. He was discharged from the hospital on January 5, 1967. At that time he was taking 50 units of insulin daily. There was an ulcer on the bottom of his right foot which was not healed. Isgett was seen and treated by Doctor Lee for several months. There was minimum improvement, the prognosis was considered "fair", but Doctor Lee found him able to return to work 7 March 1966.
3. On March 9th, Isgett applied to return to work with the defendant railroad but he was turned down under directions from the Chief Surgeon because the wound had not healed. He had been examined by E. M. Allen, Jr., M. D., a physician employed and retained by the defendant railroad for purposes of making physical examinations of the railroad's employees and prospective employees. Doctor Allen acknowledged that he knew Isgett's condition, and that he had treated him as a private patient for a number of years for diabetes, high blood pressure and concomitant problems. The doctor noted that he observed a "necrotic ulcer right foot, probably diabetic." He doubted that he had checked the pulses in his legs. The doctor, to whom Isgett had been sent by the defendant to determine "whether he was able to go to work or not", found that he was not able to return to work at that time.
4. Doctor Allen rejected him again on April 20, 1967.7 When he presented himself for the examination he had a letter from Doctor Lee which concluded that "I believe that Mr. Isgett is now able to return to work." Doctor Allen testified:
Well, the railroad requires that their representative okay a man who has been operated on to make sure that he is thoroughly recovered before they will permit him to come back to work. So he came by my office for me to inspect his incision. That was on April 20, 1967. I did not check him for diabetes. He was another doctor's patient. He was in good hands. I just looked at his incision and it hadn't completely healed. I suggested to Mr. Isgett that he wait a few more days before he returned to work. He came back on May 1. I re-examined the site of operation, his incision, and it had finished healing and I okayed him to return to work.
Q. Sir, would you read for the court for our benefit the April note that you have with regard to Mr. Isgett. Just sort of quote exactly from your notes.
A. The April note?
Q. Yes, sir.
A. I can read it. Podiatrist, I believe it is. (R. 16).
5. On May 1, 1967 John F. Isgett returned to Doctor Allen's office. Inquiry directed toward the physician revealed:
Q. Did you have occasion to examine him again, sir?
A. May 1. He came back again.
Q. What do your notes say with regard to that examination?
A. Now, that applied only to the surgery. I did no other examination.
Q. You didn't check his leg pulses?
A. I just checked his site of operation.
Q. Let me ask you this, sir: If the man had come in with one of his arms in a cast, would you have approved him to go back to work, and just simply looked at the site of that other injury?
A. Well, that is all I was asked to do as to whether he had healed. His personal physician had okayed him for work, and they asked me to check the site of surgery to see if the operation had healed. That is all I was asked.
Q. Who asked you to do that?
A. I guess the Coast Line. They require that he come by to get a Med 4. That is a form that okays for work. Asking had he recovered from surgery, and he hadn't, and a few days later he had completed healing. That is all that I was asked to do.
Q. Isn't it your function as an examining physician for the railroad to determine if he is fit to go back to work, or any employee is fit to go back to work?
A. That is a hard question to answer. I wouldn't know how to answer that.
Q. Just answer it as best you can.
A. Well, the best I can, if hypothetical Dr. Jones' patient comes to me, Dr. Jones says that the patient has recovered from pneumonia, and he has a slip from Dr. Jones, then I just see whether he has recovered from pneumonia. I don't just do a routine physical examination on him.
Q. Would you listen to his chest?
A. If I were checking on pneumonia, yes. But if the man was sent to me with a statement from his attending physician saying that he was able to go back to work and the railroad asked me to check the site of surgery that is all I would do.
Q. But you wouldn't feel the legs to see if they were cool or look at the legs?
A. Well, I didn't.
Q. You were aware of the type work generally that a car man does in terms of being on his feet a lot, and heavy work. Is that correct?
A. Yes.
Q. Do you give him any instructions with regard to limitation on what he should do in his work?
A. Well, I rejected him because he hadn't completed healing. He had almost healed, but he was still not quite. When he came back his incision had completely healed, and I okayed him for the work that a car man is required to do.
Q. You gave him no instructions that you recollect?
A. No instructions that I recollect. I have no record of giving him any instructions.
Q. Let me ask you this: Can physical stress and more specifically the type of work this man had to do, aggravate circulatory problems of diabetes?
A. In my opinion you — you are talking about this case?
Q. Yes sir.
A. Well, I hate to — I will just have to guess at it.
Q. Indulge me one moment. A couple of more questions, and I will be through. Was it of any significance to you, sir, in passing on this ulcer that he had on his leg the fact that he had been out of work from December until the first of May solely because an ulcer had not healed as a result of a diabetes considering this in terms of whether or not he had severe diabetes or severe complications of the disorder?
A. No. I agree with you fully on that thought, but the only thing that concerned me was whether he had recovered or whether h...
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