Jines v. Young

• Decision Date: 01 July 1987
• Docket Number: No. 14618,14618
• Citation: 732 S.W.2d 938
• Parties: Mary JINES and Joe Jines, Plaintiffs-Respondents, v. William C. YOUNG, M.D., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 938

732 S.W.2d 938

Mary JINES and Joe Jines, Plaintiffs-Respondents, v. William C. YOUNG, M.D., Defendant-Appellant.

No. 14618.

Missouri Court of Appeals,

Southern District,

Division Two.

July 1, 1987.

Manuel Drumm, Drumm & Winchester, Sikeston, for defendant-appellant.

C.H. Parsons, Jr., Dennis P. Wilson, Parsons, Mitchell & Wilson, Dexter, James R. Robison, Sikeston, for plaintiffs-respondents.

HOGAN, Judge.

Mary Jines and her husband, Joe Jines, instituted this action against defendant William C. Young, a practicing physician, alleging medical malpractice. The plaintiffs sought money damages for negligent treatment of a fracture. The injury complained of, allegedly caused by the defendant's negligence, was effective loss of use of plaintiff Mary Jines' left arm. Mary is left oriented, or "left-handed." Plaintiffs have had a verdict in the aggregate amount of $375,000. The defendant now appeals. Four assignments of error have been briefed. The defendant contends: (1) that the answers to hypothetical questions addressed by plaintiff to her expert witnesses Conrad and Rehm were erroneously received because those questions did not fairly hypothesize the facts material and relevant to the issue of causation; (2) that the trial court erred in failing to grant defendant's motion for a directed verdict or motion for judgment notwithstanding the verdict because the plaintiffs failed to establish a direct causal connection between the defendant's negligence and the plaintiff's injury; (3) that Instructions No. 8 and 12 erroneously hypothesized the element of causation; (4) that the verdict-directors given--Instructions No. 8 and 12--failed to hypothesize a fact essential to defendant's liability.

A synoptic review of the evidence is required. Plaintiff Mary Jines fell at her home on February 3, 1979, and broke her arm. Mary sustained a fracture which is called a "Monteggia's fracture." This injury is a fracture of the ulna, which is the bone on the little finger side of the forearm. If the ulna is displaced, the result is a dislocation or fracture of the radius, which is the bone on the thumb side of the forearm. The defendant described this fracture as "a fracture which is, probably has more difficulties and general failure than any other injury to the skeletal system."

On Sunday, February 4, the defendant performed an open reduction of the fracture by affixing a compression plate. ¹ The defendant also reduced the head of the radius, which was dislocated. He applied a long-arm cast to Mary's arm. She was discharged on Wednesday, at which time she was given a 5-day prescription for Keflex, an antibiotic. On February 13, Mary had her first postoperative visit. X-rays of her arm were taken; the fracture appeared to be in good alignment. There was no indication of any infection. Mary was told to return in about 1 month.

About a week after the February 13 visit, Mary developed a burning sensation and a good deal of pain in her arm. She noticed a foul odor coming from her cast and a spot appeared on the outside of the cast. On March 1, Mary returned to see the defendant because of these disturbing symptoms. The defendant removed the cast and observed a foul odor and a pussy discharge coming from the suture site on Mary's left arm. The defendant probed the area, but did not find the infection confined to one area. He removed the sutures and applied a new long-arm cast. In a pretrial deposition, defendant stated he knew his patient had an infection on March 1. The defendant gave Mary a 10-day prescription for Keflex and made another appointment for March 20. According to Mary, her arm was red "and it was pus everywhere" but the defendant assured her "[d]on't be concerned about it, it'll be all right."

Mary's arm did not improve at that time; it got worse. She continued to have pain, drainage of pus, and emission of a foul odor from the cast. On March 15, Mary returned to see the defendant before her scheduled appointment. When the defendant "windowed" Mary's cast, he found that the "sheet wadding" or material directly under the cast was saturated with pus. The defendant removed the cast. The defendant's notes at this point state that the old infected site was healing, but that upon probing further down the arm, he found more pus. Defendant applied a new long-arm cast, not windowed, and told Mary to return in 2 weeks. Mary testified that the defendant again told her the infection was nothing to be concerned about. Her arm continued to get worse.

On March 20, Mary returned to see the defendant. Defendant found Mary's arm was still infected and draining. Again the sheet wadding was saturated with pus. The defendant "windowed" Mary's cast and probed two small openings, one of which was deep to the compression plate. A bacterial culture taken on March 15 had indicated the presence of bacteria known as "staphylococcus epidermidis" and the defendant gave Mary erythromycin, another antibiotic, because he believed her body might be building up a resistance to Keflex. He left a window in the cast and instructed Mary and her husband how to change bandages over the wound. Mary was told to return in 1 week and was reassured.

On March 27, the defendant's progress notes state: "[p]atient is much better today. One small area at the proximal portion of the incision was ... probed.... The hemostat does go down to the [compression] plate. There [w]as a minimal amount of drainage today, however, patient states that she has had a large amount of drainage and it is necessary to change the dressing three times a day." Mary was to continue her antibiotics and return on April 6.

On April 5, Mary went again to see the defendant and he probed a small area in the incision. It seemed to the defendant the surgical wound was healing from the bottom. Mary said there had been less drainage for 1 or 2 days following the March 27 visit, but thereafter there was a copious amount of drainage. Mary was told to return in 2 weeks or sooner if necessary.

On April 19, Mary returned to see the defendant. She stated there was somewhat less drainage. She was still on antibiotics. The area of infection was cauterized with silver nitrate. An x-ray--the first taken since February 13--showed that two of the screws in the compression plate were beginning to pull out. The progress note states:

"This is highly suggestive of infection in the bone.... We will plan to bring patient in the hospital, take to operating room, open the area, and insert a catherer [sic] for continous [sic] antibiotic irrigation for 1 week.... If, however, the fracture site is unstable at the time of surgery, we will remove the plate and infected bone and later plan a bone graft. The details of this were explained to the patient and she fully understands...."

Mary was extremely disturbed by the information that further surgery would be necessary and she decided to consult Dr. Ralph Rehm, her family physician, about her medical problems. On April 20, she saw Dr. Rehm, who concluded she had a serious infection. Dr. Rehm believed that Mary had probably developed osteomyelitis, a bone infection, and decided to refer her to a group of orthopedic specialists in Memphis known as the Campbell Clinic.

Mary did go to the Campbell Clinic, where she was seen and evaluated by Dr. Robert E. Tooms, a member of the orthopedic group. On May 11, 1979, Dr. Tooms wrote to Dr. Rehm, stating in pertinent part:

"I believe Mrs. Jines has an infected fracture in the proximal ulna. In my opinion, the appropriate treatment for her at this point would be to remove the plate and screws together with any infected material at the fracture site and continue her on a systemic antibiotic program. I do not believe any definitive treatment for the fracture should be attempted until she has been completely healed and clear of all drainage for a minimum period of six months. This opinion was communicated to Mrs. Jines. She will consider whether or not she wishes to pursue treatment for this in Poplar Bluff or should she elect to continue the treatment here, I certainly will be pleased to see her."

Mary did elect to continue her treatment at the Campbell Clinic, rather than at Poplar Bluff. Dr. Thomas David Sisk, an orthopedic surgeon who practices at the Campbell Clinic, undertook to treat Mary's arm. Mary was admitted to the Baptist Memorial Hospital on May 27, 1979. Under general anesthesia, an incision was made in line with the old incision, and a sinus was excised. The compression plate was exposed, found to be loose, and was removed. Granulation tissue in the area of the old fracture was removed. The surgical wound was irrigated but left open. Dr. Sisk testified that the wound was left open to "allow dressings, [and to] allow ... any accumulating blood or pus to be readily removed from the wound." Apparently, Mary's arm was placed in a cast. She was given an antibiotic called Keflin, and was later switched to a tablet form of the same drug called Keflex. The medical records introduced in evidence indicate that she progressed fairly well from April 1979 to January 9, 1980, but without any healing of the original fracture. On January 9, 1980, the progress note reads as follows:

"Patient returns today. X-ray shows her nonunion of her proximal ulnar [sic] with a dislocation of her radial head. She has had no sign of infection now for over six months and desires to have an open reduction internal fixation with bone grafting. We will probably have to remove the radial head. Arrangements are made for this in the next few days."

On January 14, 1980, Dr. Sisk again operated on Mary at the Baptist Memorial Hospital. Dr. Sisk's shorthand description of his procedure was that "We again opened a large extent of her upper arm through the previous incision, or the previous scar, and exposed the bone, put the bone back together with a metal plate and screws, and put a bone graft in the site that had not healed, to...