Largess v. Tatem, 27-71

• Decision Date: 08 May 1972
• Docket Number: No. 27-71,27-71
• Court: Vermont Supreme Court
• Parties: Rachel LARGESS v. William TATEM et al.

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.

Harry Goldman, Brattleboro, for plaintiff.

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

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

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 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.

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.'

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 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 failure of the device was proximately caused by the negligence of the defendant Tatem as found in Findings 15, supra. The second fracture of the hip was also so caused.'

The proximate cause of plaintiff's injury having been found to be as above stated, we now turn to the question of whether or not such cause was due to negligence on the part of the defendant. The specific finding of negligence objected to by the defendant is contained in Finding 15:

'Dr. Tatem knew of the instructions given by Dr. Chard. He was aware that they had not been revised or countermanded. He made no attempt to advise or consult with Dr. Chard as to the advisability of the full weight bearing which he knew was occurring. In light of his admitted unfamiliarity with the type of fixation device here employed, and his admitted reliance upon Dr. Chard as an expert in the field, we find that permitting such weight bearing without Dr. Chard's advice or consent, and his failure to so consult with Dr. Chard, was negligence on his part.'

A finding of negligence will stand only if the person who is held responsible for an injury from an act or omission on his part had knowledge or reasonably was chargeable with the knowledge that his act or omission involved danger to another. LaFaso v. LaFaso, 126 Vt. 90, 93, 223 A.2d 814 (1966). The opportunity for this knowledge of danger, when available by the exercise of reasonable care, is equivalent of knowledge itself, and when such knowledge of danger is required for careful conduct, voluntary ignorance affords no protection from legal liability. Lane Construction Corp. v. State, 128 Vt. 421, 428, 265 A.2d 441 (1970).

At the time the plaintiff was recuperating in the hospital following the initial hip fracture, the defendant's knowledge concerning the treatment of fractures, in particular the one sustained by the plaintiff, was of a general nature as was his knowledge concerning the healing of fractured bones and due limitations on weight bearing during healing. His experience was limited to non-complicated fractures in which the healing period for a bone such as the femur is from two to three months, during which period it is very essential to avoid motion. The bone must be kept quiet to obtain proper healing and X-rays are usually taken to check the healing prior to the allowance of weight bearing. The defendant admitted that the bone in question had not healed with full bony union at the time he discharged the plaintiff from the hospital, thirty-eight days after her admission.

The treatment of intertrochanteric fractures was not within his field of expertise; he had never attempted to personally handle such type of fracture.

He knew by his assistance in the surgical process that the Jewett nail had been inserted, a device with which he was not professionally familiar; the defendant admitted that at the time he had not had any occasion or opportunity for specialized knowledge as to the limitation of such device or other...