Largess v. Tatem, No. 27-71

• Docket Nº: No. 27-71
• Citation: 130 Vt. 271, 291 A.2d 398
• Case Date: May 08, 1972
• Court: United States State Supreme Court of Vermont

Page 398

291 A.2d 398 130 Vt. 271 Rachel LARGESS
v.
William TATEM et al. No. 27-71. Supreme Court of Vermont. May 8, 1972.

[130 Vt. 273]

Page 399

Harry Goldman, Brattleboro, for plaintiff.

Wilson, Curtis, Bryan, Quinn & Jenkins, Burlington, for defendant.

Before [130 Vt. 271] SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

[130 Vt. 273] DALEY, Justice.

This is a civil action sounding in negligence. Plaintiff originally sought damages against Dr. William Tatem, Dr. Chard and the Rockingham Memorial Hospital Association for alleged negligent treatment of a hip fracture sustained by her, and against Zimmer Company for alleged defects in a so-called 'Jewett nail'. This is a hip fixation device manufactured by Zimmer Company and was used in the fixation of the fracture in question.

The action was tried by court without jury. During the course of the trial, the defendants, Chard, Rockingham Hospital and Zimmer Company negotiated a settlement

Page 400

with the plaintiff, and in the action as to these defendants the following entry was made-'Discontinued with Prejudice.' The trial continued upon plaintiffs claim of negligence against Dr. William Tatem only. Defendant Tatem answered plaintiff's complaint by plea of general denial. Findings of fact were made by the court which resulted in judgment being entered for the plaintiff. From this judgment, defendant Dr. Tatem appeals to this Court claiming that the judgment is not supported by the findings of fact and certain findings are not supported by the evidence.

[130 Vt. 274] The findings of fact to which the defendant has not objection relevant to the issues raised by appeal may be summarized as follows: The plaintiff, a 77 year old woman, weighing 85 pounds, fell in her kitchen, in Bellows Falls, Vermont, and fractured her left hip on or about November 14, 1966. The defendant, a doctor of medicine, engaged in the general practice of medicine in Walpole, New Hampshire, and the general vicinity of Bellows Falls, Vermont, was called and caused her to be admitted to the Rockingham Memorial Hospital for treatment. X-rays were taken, and the injury was diagnosed as a comminuted intertrochanteric fracture of the left hip. Dr. Tatem concluded that the reduction of such fracture was beyond his training and experience and called Dr. William Chard into the case. Dr. Chard is an acknowledged specialist in orthopedic surgery with unquestioned qualifications in the field and extensive experience in intertrochanteric hip fractures. Dr. Chard recommended open reduction had internal fixation of the fracture fragments by an internal fixation device known as the 'Jewett nail'. With Dr. Tatem's concurrence and with Dr. Tatem assisting, Dr. Chard performed this procedure on November 15, 1966. The installation of the 'Jewett nail' and the operating procedures connected therewith were skillfully and successfully performed with good result.

The plaintiff's only claim of liability on the part of Dr. Tatem lies in the post-operative care and treatment following the successful surgical procedures above set forth.

The fixation device, the 'Jewett nail', was not designed to permit full early weight bearing nor was it so recommended; it was in fact packaged with a printed admonition to the effect that 'no implant can be expected to withstand the unsupported stresses of full weight bearing' (Finding 7). Dr. Chard was generally familiar with this admonition, but Dr. Tatem was not (Finding 7). This admonition (contained in plaintiff's Exhibit #22) was also accompanied by a printed instruction as follows:

'4. POST OPERATIVE CARE IS IMPORTANT. The patient should be instructed in the limitations of his metallic implant and should be cautioned regarding weight bearing and body stresses on the appliance prior to secure bone healing.'

[130 Vt. 275] The court found that Dr. Chard was familiar with the limitations as to weight bearing. There is no evidence that such knowledge was within Dr. Tatem's field of general practice.

Dr. Chard for some time following the operation directed the course of plaintiff's treatment. All post-operative orders were written on the doctor's order sheet on the plaintiff's hospital chart. On November 22, Dr. Chard wrote the following order on the doctor's order sheet: 'To P.T. (Physical Therapy) for ambulation with no wt. (weight) bearing. J. Chard.'

On November 23, Dr. Chard entered the following on the plaintiff's progress notes: '23 Nov. Doing well. Will give P.T. a chance to ambulate her on non-wt. bearing . . .. J. Chard.' He later made an entry on the progress notes on November 28: 'Doing fairly well with walker . . . J. Chard.'

The last entry made by Dr. Chard on the plaintiff's progress notes was as following: '1 Dec. Ambulating very well. Check X-rays look good. Wound healing

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well-not red or tender. Cause of temp, on 27 and 30 Nov. is not clear. May go home if Dr. Tatem feels general condition permits. J. Chard.'

After the above entry, Dr. Chard took no further action in plaintiff's behalf except to call upon her once while visiting another patient. Plaintiff remained in the hospital until December 23, 1966, when she was discharged by Dr. Tatem. At the time of her discharge, she walked out of the hospital unassisted by any person or weight supporting device. On January 18, 1967, plaintiff was readmitted to the hospital. X-rays revealed that the 'Jewett nail' had fractured along with the bone at the fracture site, necessitating a second operation to remove the broken appliance and insert a new one.

In Finding 18, the court found:

'. . . (T)he failure would not have occurred without the prolonged and frequent course of full weight bearing to which it was subjected by the plaintiff, so that the...