Maxwell v. Howell
| Decision Date | 27 March 1934 |
| Docket Number | 7866. |
| Citation | 174 S.E. 553,114 W.Va. 771 |
| Parties | MAXWELL v. HOWELL. |
| Court | West Virginia Supreme Court |
Submitted March 7, 1934.
Rehearing Denied June 13, 1934.
Syllabus by the Court.
1. A case in which the trial court properly overruled a motion to strike all of the expert testimony relating to the closed or nonoperative methods of reduction of fractures of the femur.
2. Browning v. Hoffman, 86 W.Va. 468, 103 S.E. 484.
3. The fact that the amputation of a leg became necessary to save a patient's life does not of itself establish negligence in the performance of a former operation in reducing a fracture or the subsequent treatment, but is a circumstance which the jury may take into consideration.
4. In the trial of a malpractice case against a surgeon, the controlling issue is whether he has exercised reasonable and ordinary care, skill, and diligence, such as accords with the usual standards of the profession as practiced by the accredited surgeons in the same or similar localities.
Error to Circuit Court, Monongalia County.
Action by William Maxwell, an infant, etc., against W. H. Howell. Judgment for plaintiff, and defendant brings error.
Affirmed.
Posten Glasscock & Posten and Wm. S. John, all of Morgantown, and Erskine, Palmer & Curl, of Wheeling, for plaintiff in error.
Kermit R. Mason and Chas. T. Herd, both of Morgantown, for defendant in error.
WOODS President.
This is an action for malpractice. Defendant prosecutes error to a judgment entered on a jury verdict against him.
On the night of March 25, 1932, the plaintiff, then sixteen years of age, was struck by a hit and run motorist, thereby suffering a simple comminuted fracture of the middle third of the right femur, with no cut or laceration of the skin. Thirty minutes later he was taken to the Monongalia County Hospital, and placed under the care of the doctor on duty, who rendered such attention as was then necessary. The following morning defendant, the company doctor for the Rosedale Coal Company with which the father of the injured boy was then employed, learned of the injury, and, after discussing insurance payments under group insurance carried by the company for its employees and their dependents, took over the case. An X-ray was taken, and thereafter the injured limb was prepared for reduction. On March 31st the defendant made a ten-inch incision on the right thigh, exposing the ends of the broken femur, and attempted to reduce the fracture by placing the broken ends in juxtaposition and inserting a beef bone peg within the femur at the point of the fracture. The incision was thereafter brought together by stitches, the leg bandaged where incised, and a board about four feet in length running from just above the hip to the ankle on the right side, and which was held by a bandage around the middle of the body and at the ankle, used as a splint.
On the fourth post-operative day, there was an abnormal rise in temperature, indicating infection. However, nothing was done to relieve the high temperature. Five days later, the stitches were removed, and the defendant observed unmistakable signs of infection at the place of the incision. No further action was taken until April 13th, when the splint was removed. And on the 15th the would was incised and a large amount of pus drained therefrom. Drainage was continued, and on April 30th irrigation was resorted to. About May 1st the leg, at the place of the fracture, showed angulation, and that the bones were not in place, and on May 10th an X-ray (the first since the operation) was taken. Apparently nothing was done thereafter, except occasionally to drain and irrigate and dress the wound, until July 18th, when a second incision was made. On July 24th another X-ray was taken for the purpose of determining the amount of bone decay. During all this time the patient was suffering from a very high temperature, except on a few occasions when it was subnormal. From the date of the entry at the hospital to August 7th, the patient's weight had decreased from 150 pounds to 80 pounds. The father, as early as the middle of July, requested to be allowed to furnish another surgeon to assist in the treatment of his son, but defendant refused. On August 7th (defendant having been formally dismissed) Dr. Dorsey Brannon took charge of the case, and, after consultation with several physicians practicing in Monongalia county, amputated the patient's leg just below the hip. And on September 1st the patient was discharged from the hospital.
The declaration and the evidence introduced in support thereof show that the plaintiff bases his cause of action on two theories, first, that it was the duty of the defendant to follow a method established and approved by physicians and surgeons generally in the community in which he performs the operation or gives the treatment, at the time thereof, or like communities, in treating a case of this kind, and not be negligent or careless in its application; second, the defendant was guilty of negligence in the treatment after the operation.
The defendant contends that, in view of the testimony in reference to the open method in reducing a fracture of the shaft of the femur, the trial court erred (1) in not finding such to be an approved method, as a matter of law, and (2) in permitting evidence regarding the closed method or a comparison of the two methods, to go to the jury. The evidence of the experts was to the effect that the adopted and approved practice, at the time, in Monongalia county, and similar localities, in cases of fractured femurs was first to try to reduce the fracture by such well-known and universally used methods as traction, manipulation, or some extension process, and that the open or operative method, due to the great danger...
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