Lolli v. Gray

• Decision Date: 16 March 1925
• Docket Number: No. 52.,52.
• Citation: 128 A. 256
• Parties: LOLLI v. GRAY.
• Court: New Jersey Supreme Court

128 A. 256

LOLLI

v. GRAY.

No. 52.

Court of Errors and Appeals of New Jersey.

March 16, 1925.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Guiseppi Lolli, as next friend of Alga Lolli and in his own behalf, against Charles M. Gray. From a judgment for plaintiff, defendant appeals. Reversed, for an award of venire de novo.

Carr & Carroll, of Camden, for appellant.

Cole & Cole, of Atlantic City, for respondent.

WALKER, Ch. This was a suit by Alga Lolli, an infant 12 years old, by Guiseppi Lolli, her father and next friend, to recover damages from the defendant, Dr. Gray, for alleged improper diagnosis, and because he did not exercise the knowledge and skill which he possessed as a physician in treating her, but was careless and negligent in the attention and treatment which he gave her, whereby she was permanently injured. The father, as usual, sued for his expenditures in endeavoring to have his daughter cured of her ailment. She recovered a verdict for $5,000, and her father and next friend one for $360, and from the judgment entered thereon, the defendant appeals to this court

Alga fell over a stump' and injured her left leg near the hip; her injury being known as a fractured femur. She was taken to the Vineland Hospital, and Dr. Gray was called to attend her. He diagnosed the case as a fractured femur and treated her accordingly. During her stay at the hospital her father suggested to Dr. Gray the calling of a specialist in consultation, but after being informed that he would have to pay for the specialist, the father said he had decided to take Alga to a hospital in Philadelphia; whereupon Dr. Gray informed him that if he took her out of the Vineland Hospital he would do so on his (the father's) responsibility. Dr. Gray prepared her for transference to the Philadelphia hospital. Instead of taking her there her father took her to his own home, a distance of five or six miles, in a small automobile over a gravel road which was poor and rough, and, consequently, injurious to the invalid. While in the hospital under his care, Dr. Gray performed an operation on the child; put her under ether and made an incision in her leg, drawing the bones together with a silver wire and placing a drainage tube in the wound. A few days after the operation, the patient involuntarily urinated one night and wet the bandage. Immediately thereafter he redressed the wound, taking off the soiled bandages, putting on clean sterilized ones and using antiseptics. The child had never wot herself before, although she had been in the hospital 12 or 14 days, and did not wet herself after that. She remained at home and out of the hospital for a week, and then, instead of being taken to a Philadelphia hospital, was returned to the one at Vineland. She had no medical attention at all for the first few days she was at home; after which Dr. Giacalone was called in and ordered her to be returned to the Vineland Hospital the next day, but it was a few days later before she was actually returned. When she was removed from the hospital to her home her bones were in straight position and in apposition, but when Dr. Giacalone first saw her they were dislocated.

Passing over the details of the treatment, it is sufficient to say that the diagnosis proved to be correct, and that all the medical testimony, and that of the nurses, was, that the treatment of Dr. Gray was in accordance with standard medical and surgical practice.

The case on the argument seemed to narrow down to the question of whether Dr. Gray was negligent in not protecting the bandages on the injury with a rubber cloth to prevent infection from urination. It is true that Dr. Gray testified, "I should have used a rubber cloth over the dressings," but this answer must be read in connection with the question which elicited it, which was "What would have been the means of guarding against such a thing if it had been anticipated?" The answer,...