McElroy v. Frost

• Decision Date: 02 February 1954
• Docket Number: No. 35954,35954
• Citation: McElroy v. Frost, 268 P.2d 273 (Okla. 1954)
• Parties: McELROY v. FROST.
• Court: Oklahoma Supreme Court

Page 273

268 P.2d 273

1954 OK 43

McELROY v. FROST.

No. 35954.

Supreme Court of Oklahoma.

Feb. 2, 1954.

Rehearing Denied March 30, 1954.

Syllabus by the Court.

1. While it is the duty of the trial court, in the exercise of sound discretion, to grant a new trial if, in its judgment, the verdict is not supported by competent testimony, or if upon the whole record, it is convinced that justice has not been done, yet this does not prevent the trial judge from yielding his impression or opinion upon the testimony and adopting that of the jury if, upon consideration of the whole record, he is convinced that no prejudicial error has been committed by the court and that the verdict is sustained by sufficient competent proof which the jury has accepted and believed.

2. Where the instructions, when considered as a whole, fairly instruct the jury as to the law applicable to the issues made, the verdict and judgment rendered thereon will not be disturbed on appeal.

3. If there is any competent evidence reasonably tending to support the verdict and judgment rendered thereon the same will not be disturbed on appeal.

Draper Grigsby, Grigsby, Foliart & Hunt, J. H. Hewett, Mosteller, Fellers, Andrews & Loving, Oklahoma City, for plaintiff in error.

Elder & Francis, Tulsa, Allen, Crampton, Johnson & Purcell, Wichita Falls, Tex., Cox & Buhrman, Blackwell, for defendant in error.

CORN, Justice.

Plaintiff filed this action September 26, 1951, to recover damages for personal injuries allegedly resulting from defendant's acts of malpractice. The petition alleged plaintiff had received X-ray treatments from defendant for a skin disorder; because of negligent and careless manner in which these treatments were administered plaintiff was burned severely about the groin, scrotum, and genitals, and as a result was rendered impotent and sterile, suffered from radiodermatitis, potential cancer, and constant pain and discomfort; plaintiff would be required to undergo extensive and expensive medical treatment, including castration and skin grafting in an effort to prevent development of cancer. Defendant was charged with negligence in failing to use other accepted methods of treatment, using a defective and outmoded machine; giving treatments that were too long; that rays produced by the machine were too strong and with ordinary care defendant should have known plaintiff would be burned; the machine was placed too close to plaintiff's body and an excessive amount of current was used, and treatments were given at too frequent intervals; defendant would leave room while treatments were being given and depended upon an old alarm clock to warn that treatment period had ended; failing to have the machine calibrated at frequent intervals and failing to use a proper filter on the machine during treatments.

Defendant's answer denied all material allegations of the petition, and affirmatively alleged that he used average care and skill in treating plaintiff. Further, that plaintiff's action was barred by the applicable statute of limitations 12 O.S.1951 § 95(3), since the alleged cause of action accrued more than two years prior to commencement of this action.

The nature of the questions presented on appeal require the following resume of the evidence. Plaintiff testified that beginning about June, 1947, defendant administered X-ray treatments twice weekly for three or four weeks for a skin irritation in the region of the scrotum, and the condition cleared up. About a year later the condition re-appeared and defendant once again treated plaintiff and brought the condition under control. During treatments defendant used a yardstick to measure distance of the machine from plaintiff's body, and an alarm clock for a timing device, and several times during the course of the treatments would absent himself from the treatment room. At the conclusion of these treatments plaintiff's condition again improved, but in 1949 the condition once again appeared.

Plaintiff returned to defendant for further attention, and according to his testimony, during November, 1949, underwent a three weeks course of X-ray treatments, administered daily except Saturday and Sunday. During this series of treatments defendant was out of the X-ray room upon at least three different occasions and during this series the defendant made the time of the treatment periods slightly greater than before. Following the end of this period the skin in the affected areas became red and leathery, was subject to swelling and had a burning sensation. Upon this condition being called to his attention defendant declined to use X-ray further and prescribed an ointment to be applied locally.

Between January and March, 1950, plaintiff was treated by another doctor (Yeary). He also received X-ray treatments for an irritation on other parts of his body but not the area involved herein, from a specialist (Dr. Chont) in Winfield, Kansas. Later in the year a skin specialist in Fort Worth, Texas, prescribed an ointment for plaintiff's condition, plaintiff having moved to the state of Texas. He was also treated by a skin specialist (Dr. Maner) in Wichita Falls, Texas, and at that time another specialist (Dr. Allen) in radiology was called in to examine plaintiff and to make certain pictures, introduced in evidence at the trial, graphically depicting plaintiff's condition. Plaintiff was under Dr. Allen's care at the time of this trial.

Parts of defendant's deposition were admitted in evidence as admissions against interest. Defendant's office records showed each treatment administered was with a machine setting of 80 kilovolts, 5 milles, 15 inch distance, two minutes time. Defendant admitted that he might have left the treatment room at times.

A doctor (Barry) qualified as an expert in treatment of cancer testified for plaintiff. His examination of plaintiff's condition revealed a marked inflammation of the skin, atrophy of the testicles and extensive radiodermatitis, an inflammation of the skin resulting from use of X-ray or radium; the effect of the treatment on plaintiff would be to render him sterile, and his condition ultimately would develop in cancer of a fatal type. The witness testified X-ray treatment was too dangerous for a general practitioner, and was not justified as the first form of treatment for skin disorder; it was especially dangerous in the bodily area defendant treated because of danger of sterility; use of a yardstick for measuring distance from the machine was too inaccurate, and a proper type machine would have a built in timer for cutting off the machine, rather than to rely upon an alarm clock. Proper treatment of plaintiff's condition would require castration and extensive skin grafting. A proper course of treatment for plaintiff's skin condition would have been no more than 75 roentgen units per week; if plaintiff received the number of treatments testified to this was sufficient to produce the condition which plaintiff was in.

Another witness (Dr. Allen) qualified as an expert in the field of radiology. He had examined plaintiff about a year and a half prior to the trial, and had been given a history of plaintiff's having received a daily series of X-ray treatments extending over a three weeks period, except Saturday and Sunday. Examination revealed plaintiff to be suffering from a pre-cancerous condition of the skin, raised areas of hyperkeratosis, bleeding from the scrotum and atrophy of the testicles. In his opinion such condition resulted from X-ray exposure, and he corroborated the other witnesses' testimony as to obvious irregularities in defendant's mode of treatment of plaintiff. He further testified defendant was negligent in giving more than 100 roentgen units per day, and that no skin disease justified such daily doses. And, his testimony also pointed out three different phases in defendant's course of treatment which in his opinion were wrong, as well as pointing out several particulars wherein defendant displayed lack of knowledge of correct X-ray technique and treatment, indicating defendant did not meet the standards of a doctor of medicine.

Another doctor (Rossito) qualified as an expert in the field of radiology. This witness had examined plaintiff just before called upon to testify, and his diagnosis of plaintiff's condition was in agreement with that of the other expert witnesses. Any examination of plaintiff would reveal his condition resulted from over-exposure to X-ray, which should not be given daily, and it was not the practice to give daily X-ray treatment for minor skin conditions such as plaintiff had; the dosage (80 kilovolts, 5 milles, 15 inches, 2 minutes) defendant claimed to have given meant nothing, and was not a proper expression of dosage in the absence of other factors. The witness likewise corroborated the other medical testimony that defendant was guilty of poor practice in timing X-ray treatments by an alarm clock and in leaving a patient alone while exposed to X-ray. Further, the only means to be used in attempting to remedy plaintiff's condition would be by extensive plastic surgery, and he definitely was suffering from pre-cancerous lesions.

Defendant testified in his own behalf that he last treated plaintiff with X-ray in April, 1949, and his skin was not in the severe condition described by plaintiff. He testified positively that he had not treated plaintiff during November, 1949, because he was in another state from November 9 to the 24th. He was corroborated in this by several other witnesses. Further, in February, 1949, the settings '80 kilovolts, 5 milles, 15 inch distance, 2 minutes time' were on his machine when he treated plaintiff; on each treatment the patient received 100 roentgen units.

There was testimony by a doctor (Yeary) that he had treated plaintiff for ringworm between January and June, 1950, and that plaintiff showed no symptoms of X-ray burns during that time.

Another witness for defendant was a...