McCleeary v. Wirtz

• Decision Date: 16 October 1974
• Docket Number: No. 2--56321,2--56321
• Citation: 222 N.W.2d 409
• Parties: Flossie Beverley McCLEEARY, Executor of the Estate of Flossie L. Longstaff, and Flossie Beverley McCleeary, Executor of the Estate of John Longstaff, Appellants, v. Dwight C. WIRTZ, M.D. and Iowa Lutheran Hospital, Appellees.
• Court: Iowa Supreme Court

Page 409

222 N.W.2d 409

Flossie Beverley McCLEEARY, Executor of the Estate of Flossie L. Longstaff, and Flossie Beverley McCleeary, Executor of the Estate of John Longstaff, Appellants, v. Dwight C. WIRTZ, M.D. and Iowa Lutheran Hospital, Appellees.

No. 2--56321.

Supreme Court of Iowa.

Oct. 16, 1974.

Stewart, Wimer, Brennan & Joyce by Joseph B. Joyce, Des Moines, for appellants.

Bradshaw, Fowler, Procter & Fairgrave by Kent M. Forney, Des Moines, for appellee Dwight C. Wirtz, M.D.

Patterson, Lorentzen, Duffield, Timmons, Irish & Becker by James A. Lorentzen, Des Moines, for appellee Iowa Lutheran Hospital.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP, and HARRIS, JJ.

RAWLINGS, Justice.

By action at law plaintiffs, John Longstaff and Flossie Longstaff, husband and wife, sought damages resulting from alleged negligence by defendants, Dr. Dwight C. Wirtz and Iowa Lutheran Hospital in Des Moines. Defendant hospital counterclaimed for value of services and supplies furnished Mrs. Longstaff. Upon the death of both aforesaid plaintiffs the executors of their respective estates, although one and the same party, became substitute plaintiffs. They appeal from judgments on directed verdicts for defendants on plaintiffs' action and from like relief for defendant hospital on its counterclaim. We affirm.

August 18, 1969, Mrs. Longstaff, then 78, was injured as the result of a car-truck collision. She suffered severe external lacerations, internal fracture of the left patella, the right tibia, tibial plateau, knee and clavicle.

Upon admission to hospital the patient was first attended and treated by Dr. Wirtz, an orthopedic surgeon, for the lacerations. At that time defendant doctor determined no further treatment should be administered because the patient was in a state of shock.

August 20 Dr. Wirtz undertook a correction of the bone fractures, specifically the right collarbone, left knee and right leg. In this process the right leg was manipulated into an emendatory position without incision. Casts were then applied to both legs. By reason of the patient's pre-existing arthritic and poor circulatory condition the feet were not encased.

September 18 the left leg cast was removed per schedule. October 1, upon removal of the right leg cast, gangrene was found to have developed in that limb. Dr. Wirtz thereupon solicited the assistance of Dr. Alexander Matthews, a specialist in thoracic and cardiovascular surgery. Following an October 2 examination by Dr. Matthews and his conference with Dr. Wirtz, it was agreed the gangrenous condition, emanating from a blockage of the circulatory system, necessitated amputation of the right limb. October 3 this surgery was performed.

In brief, action against defendants doctor and hospital is based upon alleged failure to effect proper supervision, care and treatment, and failure to keep adequate records which proximately resulted in the amputation of Mrs. Longstaff's right leg.

At close of plaintiffs' evidence trial court sustained a motion for directed verdicts interposed by both defendants. Apparently attendant judgments were not then entered, nor was any motion voiced by hospital as to its counterclaim.

There followed an ineffective appeal by plaintiffs, with cross-appeal by hospital. Hospital then moved for correction and modification of the record regarding its counterclaim. Plaintiffs filed resistance thereto.

Subsequently, upon hospital's application for correction and modification of the record, trial court entered judgment on directed verdicts for both defendants as to plaintiffs' actions, with like relief to hospital on the counterclaim. Plaintiffs again gave notice of appeal, this time from all judgments entered.

In support of a reversal the executors-plaintiffs assert trial court erred in (1) directing a verdict for defendants on plaintiffs' actions, and (2) in directing a verdict for defendant hospital on its counterclaim.

The propriety of directed verdicts for defendants will be considered separately as to Dr. Wirtz and hospital. Also the directed verdict for hospital on its counterclaim will be independently reviewed.

I. First entertained is plaintiffs' assignment regarding entry of a directed verdict for Dr. Wirtz.

In this regard it is inceptionally urged, the patient's right leg was so negligently encased as to obstruct circulation of the blood, proximately resulting in the amputation. This necessitates a prefatory determination regarding the nature of evidence essential to establish a jury question.

On that subject we have held substantial evidence of negligence must be adduced in order to create a fact issue. By the same token a mere scintilla of evidence will not suffice. Absent the necessary showing, it is error to submit an issue to a jury. See generally Wenndt v. Latare, 200 N.W.2d 862, 870 (Iowa 1972); Dobson v. Jewell, 189 N.W.2d 547, 553 (Iowa 1971); Ellingson v. Kramer, 255 Iowa 1257, 1262, 125 N.W.2d 777 (1964).

Furthermore, evidence regarding requisite skill and care exercised by a physician must ordinarily be given by experts. There are, however, exceptions to this rule when (1) the physician's lack of care is so obvious as to be within the comprehension of a layman's common knowledge or experience, or (2) the physician harms a part of the body not under treatment. See Wiles v. Myerly, 210 N.W.2d 619, 629 (Iowa 1973). But those exceptions are inapplicable to the case at hand. See Sinkey v. Surgical Associates, 186 N.W.2d 658, 660--662 (Iowa 1971).

Turning now to the record it reveals plaintiffs produced not one iota of evidence disclosing the cast affixed to patient's right leg was so tight it obstructed blood circulation. Moreover, no expert evidence was presented disclosing the techniques or procedures employed by Dr. Wirtz in affixing the cast were other than those customarily employed by physicians under like circumstances. See Grosjean v. Spencer, 258 Iowa 685, 691--692, 140 N.W.2d 139 (1966); cf. Johnson v. Van Werden, 255 Iowa 1285, 1290, 125 N.W.2d 782 (1964).

We are satisfied no substantial evidence of negligence was presented by plaintiffs in support of the instant assignment.

II. Next considered is plaintiffs' claim to the effect trial court further erred in directing a verdict for Dr. Wirtz because a jury issue had been generated as to his (1) failure to timely discover the circulatory blockage, and (2) failure, upon discovery thereof, to effect immediate corrective action or procure prompt vascular-surgical advice and assistance for that purpose. Since these issues are interrelated they will be accordingly reviewed.

Without resolving the matter of negligence regarding the foregoing issues, trial court found a fatal absence of adequate evidence as to proximate cause.

We last dealt with that subject in Winter v. Honeggers' & Co., Inc., 215 N.W.2d 316, 320 (Iowa 1974) and there said: "The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm."

It must be prefatorily conceded proximate cause, like negligence, is usually a jury issue. See Iowa R.Civ.P. 344(f)(10).

Here, however, causal connection is essentially a matter which must be foundationed upon expert evidence. See Cronin v. Hagan, 221 N.W.2d 748 (Iowa 1974); Barnes v. Bovenmyer, 255 Iowa 220, 228--229, 122 N.W.2d 312 (1963); Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 382--383, 101 N.W.2d 167 (1960).

More specifically, common knowledge and everyday experience would not suffice to permit a layman's expression of opinion as to whether Dr. Wirtz' failure to timely discover the circulatory blockage, or upon discovery thereof to promptly effect a circulatory correction or secure other expert advice and assistance for such purpose, was a substantial factor in bringing about the complained of result.

Passing over the matter of negligence by Dr. Wirtz in any respect above set forth, the question posed is whether plaintiffs presented essential expert testimony disclosing Dr. Wirtz' conduct was a proximate cause of the right leg excision.

Susan Scharnweber, a registered nurse and hospital employee, testified that a September 28, 1969, record entry by her stated, in part: Femoral pulse felt strong and full in left leg at 100 beats per minute. Could not be counted in right leg as was very weak and thready. Right foot very cold while left foot is warm. All toenails on right foot blue but second toe the darkest.' Miss Scharnweber also related a record entry made September 29, 1969, by a student nurse reading in part: 'Turned two times before noon; toes and bottom of feet appeared purplish.'

Dr. Wirtz was another plaintiff called witness. His testimony reveals, as aforesaid, he first saw Mrs. Longstaff August 18, 1969, when he treated her external lacerations. The morning of September 28, 1969, defendant doctor noted in the patient's progress report: '* * * patient has a cold right foot, left was warm, find no pulse in the right groin. * * * She does have a pulse in the left, that means the left groin.' His next entry, made October 1, was: 'Cast removed from the right leg, there is motion at the site of fracture, patient has developed a gangrene on the right leg with demarcation * * * about three inches above the knee joint, patient should have amputation of the leg but the general condition is not good.'

Dr. Wirtz further testified the aorta runs from the heart to the abdomen ultimately branching off into the thighs, and he had examined the right groin area for pulse but found none. When asked the significance of this finding defendant doctor stated it would indicate a blockage of the aorta somewhere in the abdominal area resulting in a circulatory problem in the right leg. This blockage was attributed to Mrs. Longstaff's...