Johnson v. St. Patrick's Hospital

• Decision Date: 20 December 1968
• Docket Number: No. 11470,11470
• Citation: 152 Mont. 300,25 St.Rep. 887,448 P.2d 729
• Parties: Bror V. JOHNSON, Plaintiff and Respondent, v. ST. PATRICK'S HOSPITAL and Stephen L. Odgers, Defendants and Appellants.
• Court: Montana Supreme Court

Page 729

448 P.2d 729

152 Mont. 300

Bror V. JOHNSON, Plaintiff and Respondent, v. ST. PATRICK'S HOSPITAL and Stephen L. Odgers, Defendants and Appellants.

No. 11470.

Supreme Court of Montana.

Submitted Nov. 19, 1968.

Decided Dec. 20, 1968.

Garlington, Lohn & Robinson, C. P. Brooke, Sherman V. Lohn, (argued), William Evan Jones, (appeared), Missoula, for defendants and appellants.

Landoe & Gary, Anderson & Brown, H. B. Landoe and Gene I. Brown, (argued) Bozeman, for plaintiff and respondent.

VICTOR H. FALL, ^* District Judge.

This is an appeal by the defendants from an adverse judgment rendered by the court below. The complaint was based upon a charge of negligence against the defendants and was tried to the court sitting without a jury. Essentially the factual situation as presented was as follows:

The plaintiff, Bror Johnson, when doing construction work for the Northern Pacific Railway in 1940 fell some 55 feet from a trestle and sustained, among other injuries, a severe hurt to his right hip. He was treated at the Northern Pacific Hospital in Missoula, Montana and as a part of the over all procedures had what is called a Smith-Peterson nail driven through the head of the femur and into the ball of the hip to stabilize and correct injuries to that area. No question is presented here with regard to the correctness of this type of procedure as such. The record reflects that he was hospitalized from September of 1940 until some time about 1941 and that despite the many serious injuries sustained, in addition to that to the hip, he seems to have made a quite remarkable recovery. He stated on his direct examination that after he left the hospital 'The only thing that was causing me any discomfort at all was my hip, and that was just rather slight actually.' Thereafter he worked at several different occupations such as a welder in the shipyards at Portland, for about 18 months, a short time as a fireman for the Northern Pacific Railway and then about the first of March, 1945, he started what appears to have been his longest steady occupation and that was as a city bus driver in Missoula, Montana. He followed this occupation until about March of 1955 and gave as his reason for doing this type of work that his hip '* * * was a, on the painful side so I took a job driving a city bus * * *.'

Sometime in the spring of 1955 he consulted with the defendant, Dr. Odgers, regarding the increasing pain to his hip with the end result that the Doctor performed an operation upon the plaintiff at St. Patrick's Hospital, (the other defendant herein) the latter part of March of 1955. The operation, as this Court understands it, amounted to this-the Doctor removed the Smith-Peterson nail referred to above, opened up the front part of the thigh exposing the hip joint, removed the original hip ball as it had deteriorated and installed a prosthesis called a Roger Anderson type of appliance. This is a ball and pin made of stainless steel which is fastened onto the head of the femur and it takes the place of the hip ball that nature had provided. No question whatever is presented as to the correct diagnosis by Dr. Odgers of the propriety of this type of operation as a means toward correcting the difficulty of plaintiff at that time. The operation was completed and the plaintiff left the hospital in April, following. Subsequently Dr. Odgers moved from Missoula to California and Johnson never saw him after he left the hospital.

The operation was not a success. The plaintiff, according to the record, was considerable more disabled after the operation than before. Prior to that time he got around with difficulty but thereafter his hip was 'so terribly painful' and we learn that he got around only with the use of crutches. As might be expected, he consulted with other doctors regarding his continuing problem and went to a Dr. Wallace of Spokane in the spring of 1956, who advised further surgery. This was not done for the reason, as plaintiff stated, he 'didn't have any money'. Thereafter and in 1959 he and his family moved to Bozeman and in the first part of December of 1962 he there consulted with a Dr. Cole. At that time he had a 'severe swelling in my, in my incision on the right side of my leg, a short incision there made by the operation in 1955. It was, oh, like a large boil coming up with no head on it, I would say, very tender'. Dr. Cole lanced this and pus drained from it. A few days later he consulted with Dr. Alan Iddels of Bozeman, regarding the constant drainage from his hip, who probed the wound and gave it conservative treatment consisting of medication and packs. The wound continued to drain and the plaintiff's testimony is 'there was something plugging the wound there that stopped the drainage, and it started to swell again' whereupon he states that his wife, after sterilizing a pair of tweezers, reached into the wound to unplug it, and did so. Thereafter it plugged up again and upon his third visit to Dr. Iddels in December of 1962, he states that the doctor 'opened the wound or drainage hole a little bit more and unplugged it' and that he took from it a piece of gauze about an inch long which he described in some detail. Thereafter the drainage stopped for quite an appreciable period of time but a new and more severe pain appeared in July of 1965 at which time the wound puffed out, reopened and started draining again. Dr. Iddels again used conservative treatment but after a time and in March of 1966, and after further consultation with a Dr. Losee, an orthopedist practicing at Ennis, Montana, another operation was performed by Dr. Losee, assisted by Dr. Iddels with, as far as can be determined from the record, a fairly reasonable degree of success.

It is appropriate at this time to make some comment about the qualification of the several doctors involved in this litigation.

Dr. Stephen L. Odgers, who performed the operation in 1955, completed his undergraduate work at the University of Montana, took a Master of Arts there and then completed medicine at the University of Kansas Medical School. He stated, upon direct examination '* * * orthopedic training qualified me for the Board of the University of Illinois, research, educational hospital in Chicago'. From that time on he has been engaged in the general practice of orthopedics and is admitted to practice medicine in Kansas, Montana, California and Mississippi. At the time of the trial he was a member of the Los Angeles County Society of California Medical Association, the American Medical Society, the Western Orthopedic Association, the American Academy of Orthopedics, Society of Orthopedic and Traumatology and a fellow of the American College of Surgeons. At the time of the trial he was living in Claremont, California and apparently moved to that state in 1955.

Dr. Alan Iddels was graduated from Cornell University Medical College in 1948 following which he took a rotating internship for one year at New Britain General Hospital, New Britain, Connecticut; that was followed by a residency in Obstetrics and Gynecology at Bryn Mawr Hospital, Bryn Mawr, Pennsylvania for one year; thereafter he had four years of residency training in general surgery at the Memorial Hospital in Wilmington, Delaware and was certified as a specialist in general surgery by the American Board of Surgery in 1956. At the time of the trial he had been in Bozeman, Montana for a period of 8 years, and had practiced surgery for 13 years. He is not an orthopod.

Dr. Gerald A. Diettert, who testified for the defense was graduated from the medical school at Washington University at St. Louis, in 1954; he interned in residency in medicine, 1954 to 1958; has practiced in Missoula since that time and is certified as a member of the American Board of Internal Medicine.

Dr. Losee who performed the final operation on the plaintiff was not called as a witness. He is referred to and is a well known and highly qualified orthopod, practicing his specialty at Ennis, Montana.

Dr. Eugene J. P. Drouillard was graduated from Wayne State University College of Medicine, Detroit, in 1947; completed a fellowship in radiology and was Chief of Radiology at Fort Sill, Oklahoma Hospital for two years; he is a diplomat of the American Board of Radiology.

No question is, or was, raised by either side at any time as...