Longfellow v. Vernon

• Decision Date: 15 May 1914
• Docket Number: No. 8246.,8246.
• Citation: 57 Ind.App. 611,105 N.E. 178
• Parties: LONGFELLOW et al. v. VERNON.
• Court: Indiana Appellate Court

57 Ind.App. 611

105 N.E. 178

LONGFELLOW et al.

v.VERNON.

No. 8246.

Appellate Court of Indiana, Division No. 1.

May 15, 1914.

Appeal from Circuit Court, Howard County; William C. Purdum, Judge.

Action by Mary L. Vernon by her next friend, Addie Vernon, against Thomas W. Longfellow and another. From a judgment for plaintiff, defendants appeal. Affirmed.Blacklidge, Wolf & Barnes, of Kokomo, for appellants. Bailey & Young, of Indianapolis, for appellee.

FELT, J.

This is a suit for damages brought by appellee against appellants for alleged malpractice. The complaint was in six paragraphs each of which was answered by general denial. The case was tried by a jury, and a verdict of $2,500 was returned against appellants, with answers to certain interrogatories. Appellants' motion for judgment on the answers of the jury to the interrogatories, notwithstanding the general verdict,and their motion for a new trial, were overruled, and judgment was rendered on the verdict. From this judgment appellants appealed, and have assigned as error the overruling of their separate demurrers to each paragraph of the complaint, overruling the motion for judgment on the answers to the interrogatories, and their motion for a new trial.

[1] The gist of the first paragraph of the complaint is: That on the 16th day of October, 1905, and prior thereto, the defendants (appellants) were engaged in the practice of medicine and surgery, as partners, in the town of Tipton, and held themselves out as competent and skillful physicians and surgeons. That on said day plaintiff, Mary L. Vernon, was five years of age, in good health, and free from disease and injuries of any kind. That on said day she slipped and injured her right leg and ankle below the knee. That in the afternoon of October 17, 1905, defendants were called to treat said injured limb, and undertook so to do. That they carelessly, negligently, unskillfully, and ignorantly treated said limb, in this: That they, and each of them, carelessly, negligently, and ignorantly failed and refused to make a proper diagnosis of the injury. That the bone of the leg near the ankle joint was split, which fact could have been easily and readily ascertained by the use of ordinary skill and care. That defendants failed to use ordinary care and skill, and carelessly and negligently failed to learn the true condition of said limb, and diagnosed said injury as a mere sprain, and negligently failed to properly bandage and treat said limb. That defendants saw plaintiff a number of times prior to October 20, 1905, and she was at such times suffering severe pain in said limb, and the same was very sore and greatly swollen, but, notwithstanding said facts, defendants carelessly, negligently, and ignorantly failed to make a careful examination of said limb until October 20, 1905, and failed to use ordinary care to make an ordinary examination of said limb to ascertain the nature of the injury and the cause of plaintiff's suffering, all of which could have been easily done by ordinary diligence, care, and skill in making an ordinary examination of plaintiff's limb and injuries. That by reason of the negligence, carelessness, and ignorance of defendants and their failure to exercise ordinary care and skill in diagnosing said injury and treating said limb, said bone became diseased, blood poison set in, and mortification began, and said limb steadily grew worse, and said condition spread over plaintiff's entire body. That by reason of the negligence and carlessness of defendants aforesaid, plaintiff became so diseased and affected that an operation was necessary to save her life, which operation took place on February 24, 1906. That a part of the bone between the knee and the foot was removed, the bone of her right shoulder had to be scraped, and portions thereof removed. That her entire system was inoculated with septic poison, and she was caused to suffer great pain and anguish of body and mind, and is thereby permanently injured and crippled, and will continue to suffer the remainder of her life, all on account of the aforesaid negligence and want of skill, care, and proper treatment on the part of the defendants, to plaintiff's damage in the sum of $25,000.

The general averments of the second paragraph of complaint are substantially the same as those of the first, but it is especially averred that defendants carelessly, negligently, and ignorantly used ordinary gasoline to remove from plaintiff's limb an adhesive bandage or plaster; that the limb was swollen and badly inflamed, and by the use of said gasoline and the negligent failure of the defendants to properly cleanse the same, the limb became sore, blistered, and irritated to such an extent as to produce blood poison, with the results aforesaid.

The third paragraph contains the same general allegations as the first paragraph, and specially charges that on October 20, 1905, defendants carelessly, ignorantly, negligently, and unskillfully placed said limb, which was then sore, swollen, tender, and inflamed, in a plaster of paris cast, and negligently made the same so tight as to greatly impede and stop circulation; that because of said treatment mortification set in, and a septic condition and blood poisoning resulted, extending throughout her whole body; that plaintiff was thereby thrown into spasms, her temperature reached 106 degrees, and on October 21, 1905 said cast had to be removed; that thereafter, as a result of said treatment, in order to save her life, plaintiff underwent a dangerous and painful operation, which is described as in the other paragraphs.

The fourth paragraph charges negligence in failing to properly diagnose the case, and combines the specific averments of the second and third paragraphs as to the use of gasoline and the tight bandage.

The fifth paragraph contains the same general averments as the first. It charges a negligent failure to properly diagnose the case, and also alleges a dislocation of the right hip which caused pain in the lower limb, and alleges substantially the same general conditions and results as are charged in the other paragraphs.

The sixth paragraph charges a negligent failure to diagnose the injury, which is alleged to have been a dislocation of the right hip. It also makes substantially the same averments as to the tight bandage and the use of gasoline as other paragraphs, and charges that appellant scraped the blistered limb with finger nails and unclean and poisonous instruments, which produced blood poison.

Each of the paragraphs states a cause of action.

The substance of the answers of the jury to the interrogatories, as far as material to the questions presented, is as follows: That appellee, a girl five years of age was injured on the afternoon of Monday, October 16, 1905, and the following night and day complained of severe pain in her right ankle and foot; that appellant McKee was called to see her about 5 p. m. the next day, and was informed by the mother of appellee that the child had fallen or had been struck on the ankle the day before, and had been suffering severe pain in her limb; that she wanted to know whether there was a sprain or some other injury to the bone or joint; that said MeKee did not make an examination of the foot and ankle at that time, but advised the mother to continue to make hot applications to the limb as she had been doing; that the mother called appellant McKee again on Wednesday evening the 18th, and he found appellee still suffering severe pain; that later, on the same evening, both appellants called to see appellee, and made some examination of her foot and ankle and put on some adhesive strips; that appellant MeKee called the next morning, and learned that appellee had continued to suffer greatly, and was still restless and suffering intensely; that her suffering continued through Thursday and Thursday night, and appellant Longfellow was again called in on Friday morning; that about 9 a. m. of the same day both appellants saw appellee; that it was at that time the usual practice among physicians and surgeons to apply adhesive strips in order to place a joint or limb at rest; that on Friday appellants removed said adhesive strips from appellee's limb by applying gasoline, and it was then the usual and customary practice of physicians and surgeons to use gasoline to loosen and remove such strips, and it was considered proper practice among physicians and surgeons so to do; that after removing said strips water was used on the limb where the strips had been, and appellee then was chloroformed and a plaster paris dressing was placed on her ankle and limb over a layer of medicated surgeon's cotton, held in place by a strip of gauze; that it was the usual and customary practice among physicians and surgeons to so incase an injured limb, and in so doing appellants used the method ordinarily used by physicians and surgeons at that time; that though such dressing is properly applied to the ankle and foot, the toes and heel frequently become discolored; that if such dressing is placed too tight, the fact is indicated by the heels and toes becoming cold; that appellee continued to suffer intensely after said plaster paris cast was placed on her limb, and at 11 o'clock Friday night, she went into convulsions; that appellant McKee saw appellee Friday afternoon and at 11 o'clock that night, remained with her until Saturday morning, and gave her some treatment to ease her pain; that appellant McKee and Dr. Newcomer saw appellee on Saturday about 24 hours after said plaster paris cast was put on, and Dr. Newcomer cut open said cast; that if a tight dressing is continued too long around the ankle and foot and entirely stops circulation, it will produce gangrene, which will first appear in the toes; that gangrene did not exist in appellee's toes prior to the operation in February, 1906; that gangrene may be produced without blood poison accompanying the same;...