Iterman v. Baker

• Decision Date: 09 June 1938
• Docket Number: 27093.
• Parties: ITERMAN et al. v. BAKER.
• Court: Indiana Supreme Court

15 N.E.2d 365

214 Ind. 308

ITERMAN et al. v. BAKER.

No. 27093.

Supreme Court of Indiana

June 9, 1938

[Copyrighted Material Omitted]

Appeal from Madison Circuit Court; John W. Craig Special judge.

Paul Brown, of New Castle, Pence, O'Neill &amp Diven, of Anderson, and Owen Boling, of Indianapolis, for appellants.

Will W. Reller, of Richmond, and Bagot, Free & Morrow, of Anderson, for appellee.

FANSLER Judge.

The appellee brought this action against the appellant corporation and the appellant George E. Iterman, and W. C. Heilman and W. M. Stout, who were practicing physicians and surgeons, to recover damages for injuries alleged to have been suffered because of a negligent failure to properly diagnose and treat a broken and dislocated hip. There was judgment against the appellants for $8,000.

The complaint alleges that the doctors who were defendants were practicing physicians and surgeons, actively engaged in the practice of their profession in the city of New Castle, and that they held themselves out as competent, practicing physicians and surgeons; that the appellant corporation was organized for the purpose of operating, and that it operated, a hospital for the treatment of sick and injured persons, and that the other defendants were the employees and agents of the corporation; that the corporation owned and operated a private hospital for gain, and suitable equipment for the treatment of the sick and injured; and that it 'held itself out to the public and represented that it and its employes' (the doctors) 'were qualified and competent to properly diagnose and treat sick and injured persons, and it agreed with said plaintiff, for a consideration, to properly diagnose and treat his injuries.' It is alleged that the plaintiff suffered a dislocation and fracture of the hip; that he was taken to the hospital where the doctors, 'at such time being agents and employes of said New Castle Clinic, attempted to diagnose and treat the injury and fractures sustained by said plaintiff, and to advise him as to the course of treatment to be followed by him; * * * that said defendants, and each of them, carelessly and negligently failed to properly diagnose the condition of said plaintiff then and there existing, and instead of diagnosing the same correctly and as the same then existed, carelessly and negligently found that said plaintiff was suffering from a dislocation of his left hip, and said defendants wholly failed to ascertain that said plaintiff was likewise suffering from a number of extensive fractures to certain bones of the left side of his pelvis; * * * that a physician or surgeon of ordinary skill and qualifications, by a proper physical examination and by use of an X-ray machine, could have found all of the injuries and fractures from which said plaintiff was then suffering, and that if ordinary care and skill had been used by said defendants they could have correctly diagnosed the condition of said plaintiff'; that, after X-ray and other examination, and an operation to reduce the dislocation, the defendant doctors informed the plaintiff that they had 'fixed it all right,' and that there were no fractures; that no further operation would be necessary, and that the proper treatment would be for him to go home and rest; 'that said defendants wholly failed to use the proper and recognized method for reducing and treating the injuries and fractures from which he was then suffering'; that they dismissed him from their hospital within a few hours and sent him home; that, in fact, there were fractures and a condition which permitted the hip joint to be re-dislocated; and that, because of the advice given to him by the defendant doctors, he did not procure further treatment until it was too late to relieve the condition, and he became permanently crippled.

Dr. Iterman testified that the New Castle Clinic is 'an operating force for a hospital,' located in a building owned by the Clinic Realty Company; that it is a corporation, and that the doctors are directors; that it employed the help in the building, and collected all fees and charges for services, but that it was not operated for gain, but simply for the convenience of the physicians who had their offices in the building, and that it had operated at a loss to them; that it was not a charitable organization.

The appellee and his wife testified that they were in an automobile accident at night. They were taken to the New Castle Clinic. Dr. Iterman talked to them. He told them that they could go to the County Hospital, a charitable institution, but they told him they could pay their bill. The appellee was taken into the clinic. He told Dr. Iterman that he thought his leg was broken. He was placed on a table and examined by Dr. Iterman, who felt his hip. He was then put on an X-ray table. Dr. Heilman was present. An X-ray picture was taken. Dr. Iterman said he found a dislocation. Drs. Iterman and Heilman discussed the anaesthetic to be used, and administered one. Afterward Dr. Iterman told him he was lucky that there were no fractures; that there was a dislocation, which had been reduced; that there was no danger of a re-dislocation, as it would take as much of a blow the second time as the first to cause a re-dislocation. Dr. Iterman asked them whether they wanted to stay in the hospital or go home. He said that it was not necessary for them to remain; that the dislocation was all right; that appellee would suffer a lot of pain, but lying quietly in bed was about all of the treatment he needed. He advised going home that night, and arranged for an ambulance to take appellee and his wife home. Dr. Iterman told appellee that his family doctor could take care of relieving his pain, and that if he would have his family physician telephone him in the morning he would tell him what to do. When the appellee got home he sent for Dr. Smullen, his family physician, and reported to him what had been said by Dr. Iterman. Dr. Smullen gave him a hypodermic to relieve pain. Appellee had a 'crunching' feeling just below his abdomen. He was in bed for four weeks, mostly on his back. On the first afternoon he was at home, Dr. Green was called in with Dr. Smullen. Dr. Green measured his legs and examined his feet, and testified that there was no shortening in the legs and that the feet were normal. About the fourth week the appellee noticed a difference in the length of his legs, when he put his feet on the floor, and went back to the clinic five or six weeks after the original treatment. He talked with Dr. Iterman, and told him about the pain he was suffering. Dr. Iterman took an X-ray picture of his foot and measured his legs, and said he thought one leg was a little short, but that it was due to 'lying in a twist.' The doctor said he had destroyed the X-ray picture which he took on the night of the accident, because he had spoiled it and it was no good. The doctor told him that he might have a nerve injury, and that the best thing to do was to attempt to walk. Later he went to other doctors, and finally to specialists, who discovered by X-ray that the hip was dislocated and that there had been a fracture of the pelvis and hip socket; that the dislocation had continued for such length of time that, although various surgical treatments were tried, the condition could not be corrected, and he was permanently lame and partially disabled. He said that he had had no other accident or sickness.

Dr Iterman testified that the appellee told him he thought he had a broken leg; that he told the appellee there was a County Hospital, where he would be taken care of if he was unable to pay, but that appellee said he did not want to go to the County Hospital, and that he wanted to be taken care of immediately; that he was taken into the clinic. Dr. Iterman discovered a few cuts and bruises, and the greater trochanter of the left side out of normal position. Appellee was taken into the X-ray room and placed on a table, where he lay on his right side. He was unable to lie on his back on account of the position of the head of the femur. There was no fracture of the thigh bone, and the X-ray picture showed the head of the femur to be out of the hip socket upward and backward one and one-half to two inches. The picture did not show any fractures of the pelvis. Dr. Stout was called in and gave an anaesthetic, and, by manipulation, the bone was pulled down and rotated out and slipped into the cavity with the 'characteristic snap.' The leg was then moved about and it had all normal movements, and the patient was able to lie on his back, both feet extended, with toes upward. Both legs were measured and found to be of exactly equal length, and the left leg assumed a normal position. The appellee was then placed under a fluoroscope and observed by Dr. Iterman and Dr. Stout. The left leg was moved, and the fluoroscope picture showed the movements to be unimpaired and the outline of the...