Johnson v. Van Werden

• Decision Date: 14 January 1964
• Docket Number: No. 51118,51118
• Citation: 125 N.W.2d 782,255 Iowa 1285
• Parties: James M. JOHNSON and Marjorie Johnson, Husband and wife, Appellants, v. Benjamin D. VAN WERDEN, M.D., L. C. Pumphrey, M.D., Robert P. Lichtenberg, M.D., Madeline Jones, R.N., and the Graham Hospital, Inc., Appellees.
• Court: Iowa Supreme Court

Page 782

125 N.W.2d 782

255 Iowa 1285

James M. JOHNSON and Marjorie Johnson, Husband and wife, Appellants, v. Benjamin D. VAN WERDEN, M.D., L. C. Pumphrey, M.D., Robert P. Lichtenberg, M.D., Madeline Jones, R.N., and the Graham Hospital, Inc., Appellees.

No. 51118.

Supreme Court of Iowa.

Jan. 14, 1964.

Joseph L. Phelan, Fort Madison, for appellants.

Johnson & Phelan, Fort Madison, and Boyd, Walker & Concannon, Keokuk, for appellees.

STUART, Justice.

This is a malpractice case which was originally brought against several doctors, a nurse and a hospital. All parties have been eliminated from the case either by dismissal or settlement except Dr. Van Werden. The action against him is based upon alleged negligent diagnosis and treatment. At the close of defendant's case the trial court sustained his motion for directed verdict and refused to allow plaintiff the opportunity to offer rebuttal evidence.

The case presents two questions on appeal: (1) whether the trial court erred in directing a verdict for the defendant, and (2) whether the trial court erred in refusing to permit rebuttal evidence.

In considering the propriety of a directed verdict for defendant we will give plaintiff's evidence the most favorable construction it will reasonably bear. No citation of authority is necessary. See rule 344(f)(2), 58 I.C.A. Plaintiff's case consisted of his testimony and that of his wife, pictures of his leg, the hospital records and a sample of the latex material involved. No expert evidence was offered by plaintiff.

On June 15, 1959 plaintiff was admitted to Graham Hospital by Dr. Van Werden, who was treating him for sciatic rheumatism. On the 16th his right leg was placed in traction to treat this ailment. Plastic latex material was placed along his ankle and leg and an elastic bandage was wrapped around it. The bandage supplied the means by which the rope holding the weights was attached to plaintiff's leg. When traction was applied, he complained of terrible pain and his leg was taken down, rewrapped and lighter weights used.

The next day, June 17, he complained of a burning sensation on his right leg. His leg was again taken down and gauze placed under the latex and rewrapped. Plaintiff testifies he was in traction two days and two nights. Progress reports initialed by defendant and introduced by plaintiff as part of the hospital records show that traction was removed on the 17th. When the bandage was removed there were red streaks running up plaintiff's leg. About two hours later blisters formed. On the 19th the blisters were opened and calamine lotion was applied. He remained in the hospital until June 26 during which time his leg was kept elevated, bathed in boric acid and the lotion applied. Some blisters were still draining when he was discharged on the 26th of June. He continued the same treatment at home in accordance with the doctor's instructions.

From June 27 till July 28, he saw Dr. Van Werden professionally two or three times. Sometime during this period, just when the record is not clear, the achilles tendon became exposed. He told the doctor the leg would not heal by itself and needed some help. He was returned to the hospital July 28 for a 'secondary closure' operation which was not successful. Dr. Lichtenberg was brought in and performed a skin graft which did not take. A flap graft operation was then performed. This required his legs to be crossed and immobilized in a cast for a period of 11 days. The graft was successful and he was discharged from the hospital September 23, 1959. He developed ulcer burns on his legs from having them crossed which required primary closure and further hospitalization from October 14 through the 17.

Defendant introduced testimony creating conflicts in the evidence. He gave his opinion that the blisters were caused by an allergy. Other doctors supported his testimony that traction in the manner described is a usual and common method of treating sciatic rheumatism. They also stated the symptoms indicated an allergic reaction and were not consistent with either too tight a bandage or a traction burn caused by a slipping of the bandage.

At this stage of the trial, defendant again moved for a directed verdict which was sustained by the trial court, who also refused to let plaintiff introduce rebuttal evidence which he claimed would prove the blisters could not have been caused by an allergic reaction.

I. Plaintiff contends the evidence is sufficient (1) because the lack of care was so obvious as to be within the comprehension of a layman and can be understood by common knowledge and experience making expert testimony unnecessary. (Citing Daiker v. Martin, 250 Iowa 75, 91 N.W.2d 747) (2) Expert evidence is not always required when the injury is to a part of the body not under treatment. (Citing Stickleman v. Synhorst, 243 Iowa 872, 52 N.W.2d 504, and cases cited therein.)

The main force of plaintiff's charges of negligence are directed toward the manner in which traction was applied to his right leg. His contention is that the formation of blisters after traction was applied for up to 48 hours is sufficient to show the doctor must have been negligent. We do not believe that such a result indicates such an obvious lack of care that expert testimony is not needed. It is common knowledge that certain treatments necessary to accomplish a major purpose may produce bad side effects. The skin ulcer which formed on plaintiff's leg while he was in a cast is such an example. Adhesive tape is a common source of skin irritation and blistering. The mere fact that blisters appeared after removal of a bandage applied so that traction could be used, is not a result which is so obviously uncalled for a layman could conclude it was the result of negligence.

The cases cited by plaintiff which hold expert evidence is not required when a physician injures a part of the body not under treatment are not applicable to the instant case as the right leg which received the injury was involved in the treatment of the back ailment.

The injury of which plaintiff complains actually resulted from the failure of the blisters to heal properly. It would seem that he would have been on more solid ground if he had directed his charges of negligence toward failure to properly treat the blisters. Plaintiff was released from the hospital when some blisters were still draining. They apparently did not heal because of secondary infection in the open sores. Defendant claimed on the stand the infection did not appear until the...