Lawrence v. Nutter

• Decision Date: 07 April 1953
• Docket Number: No. 6539.,6539.
• Citation: Lawrence v. Nutter, 203 F.2d 540 (4th Cir. 1953)
• Parties: LAWRENCE v. NUTTER.
• Court: U.S. Court of Appeals — Fourth Circuit

203 F.2d 540 (1953)

LAWRENCE v. NUTTER.

No. 6539.

United States Court of Appeals Fourth Circuit.

Argued March 17, 1953.

Decided April 7, 1953.

George E. Allen, Richmond, Va. and W. R. Broaddus, Jr., Martinsville, Va. (John D. Epperly, Jr., Martinsville, Va., George E. Allen, Jr. and Allen, Allen, Allen & Allen, Richmond, Va., on the brief), for appellant.

Robert G. Butcher, Richmond, Va. and C. O'Conor Goolrick, Fredericksburg, Va. (Richard L. Williams, Richmond, Va., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

As the result of an automobile collision, Henry Clay Lawrence, a young man of 22 years of age, was admitted to the Mary Washington Hospital at Fredericksburg, Virginia, on the afternoon of August 29, 1950, suffering from cerebral concussion and a severe compound comminuted fracture of the left elbow which involved the bones of both the lower and upper arm. He was placed under the care of Dr. Paul J. Nutter, an experienced surgeon, and received treatment which included cleansing the wound, removing unattached fragments of bone, straightening out the arm, applying a loose cast and administering antitetanus serum and doses of penicillin. On September 2 the plaintiff left the hospital and was taken by his brothers in an automobile to Martinsville, Virginia, where he was placed in the Martinsville General Hospital under the care of Dr. Joseph A. Ravenal, a general surgeon experienced in the treatment of fractures of the kind described. An examination of the arm by him led to a diagnosis of gas gangrene infection and accordingly X-ray therapy was administered and large doses of penicillin and gas gangrene antitoxin were given. Despite these and other treatments the condition of the patient deteriorated so seriously that the arm was amputated by Dr. Ravenal on September 5 leaving only a stump of two and a half to three inches.

The present suit was brought by Lawrence against Dr. Nutter on the charge that the doctor was negligent in his diagnosis and treatment of the wound during the plaintiff's stay at the Fredericksburg Hospital, and as the result the plaintiff lost his arm. The specific issues of negligence developed by the evidence related to the failure to administer gas gangrene antitoxin in the treatment of the patient at the Fredericksburg Hospital, and his early release from that hospital on September 2. Certain evidence on behalf of the plaintiff tended to show that the defendant was negligent in these respects but it was met by weighty factual and medical testimony in support of Dr. Nutter's treatment of the case, and the verdict of the jury was in his favor.

The questions of law to be decided on this appeal are whether there was error on the part of the District Court (1) in refusing to direct the defendant to produce the records of other similar cases treated by him; (2) in refusing to submit to the jury the question whether the defendant was negligent in permitting the plaintiff to leave the Fredericksburg Hospital on September 2; and (3) in refusing to allow the plaintiff's attorney to cross examine the defendant in regard to statements in certain medical books bearing on the treatment of similar cases.

At a pretrial conference between court and counsel it was agreed that the original or photostatic copies of the records of the two hospitals relating to the plaintiff's case might be used in evidence at the trial; but a motion of plaintiff's attorney to require the production of the records of other cases of a similar nature treated by Dr. Nutter was overruled. The record on this appeal does not show that plaintiff's attorney was in possession of any information that the medical records in other cases contained any material that was relevant to the case at bar. Moreover, the plaintiff had full opportunity to take the deposition of the defendant prior to the trial and to cross examine him when he testified as a witness in his own behalf. Under these circumstances we find no error or abuse of discretion in this ruling of the District Court.

There was evidence from which the jury might have found that the defendant permitted the plaintiff to leave the Fredericksburg Hospital on September 2, when it was dangerous for him to do so, and that his early release may have contributed to the loss of his arm. On the other hand, there was direct and positive testimony on the part of the defendant and other witnesses that the plaintiff left the hospital of his own accord and without the physician's consent. Consequently an issue of fact was raised and it was error on the part of the judge to refuse to submit the issue to the jury, as requested by the attorney for the plaintiff.

We come then to the third and most important question in the case. During the cross examination of the defendant and another physician who testified on his behalf it was suggested that the condition of the plaintiff's injury was such that a qualified surgeon would have perceived, when the patient was brought to the Fredericksburg Hospital, that the administration of gas gangrene antitoxin was necessary to prevent infection of the wound, and that it was negligence on the part of the defendant to fail to administer it. The defendant and his corroborating witness testified that this remedy was no longer used in such cases. The attorney for the plaintiff then attempted to question them on cross examination in regard to statements in certain medical books in which the use of the antitoxin in cases of compound fractures was recommended, and it was brought out that these books were used in medical centers in Virginia and elsewhere, and were considered authorities by the witnesses. Objections to these questions were sustained on the ground that they were inadmissible. In our opinion this ruling was incorrect.

Wigmore has shown in §§ 1690 to 1700 of Vol. 6 of the 3d Edition of his work on Evidence that the exception to the hearsay rule respecting the admissibility in evidence of learned treatises has been recognized to a limited extent in this country when it is shown that the writer of the work...