McGulpin v. Bessmer, 47594

• Decision Date: 13 June 1950
• Docket Number: No. 47594,47594
• Parties: McGULPIN v. BESSMER et al.
• Court: Iowa Supreme Court

Page 121

43 N.W.2d 121

241 Iowa 1119

McGULPIN v. BESSMER et al.

No. 47594.

Supreme Court of Iowa.

June 13, 1950.

Rehearing Denied Oct. 23, 1950.

Bach & Arnett, of Hazard, Kentucky, for appellant.

Lane & Waterman, and Cook, Blair & Balluff, all of Davenport, for appellees.

GARFIELD, Justice.

The first count of plaintiff's amended petition charges defendants, Drs. Bessmer and Middleton, and their employee Dr. Spang with want of due care, skill and knowledge in treating varicose veins in plaintiff's leg, resulting in gangrene and amputation of the leg. The second count alleges defendants and Dr. Spang, following an operation on plaintiff's leg, abandoned and without cause failed to treat him so amputation of the leg was necessary.

A separate count in a supplemental petition alleges Dr. Spang, without due care and skill and by a gross technical error, mistakenly ligated and cut the artery in plaintiff's leg instead of the vein; this cut the blood supply to the leg, resulted in gangrene and subsequent amputation.

Defendants' answer admits Dr. Spang was their employee and that he performed a ligation operation on the vein of plaintiff's leg but denies other allegations of plaintiff.

At the conclusion of plaintiff's evidence a verdict for defendants was directed on the grounds 'the record fails to show any standard of skill or diligence customarily used in Davenport or similar localities or that defendants did not exercise that degree of skill and diligence that was standard in this community and fails to show any negligence.' The court ruled there might be a question whether defendants abandoned plaintiff but such abandonment was not the proximate cause of amputation since the necessity of amputation had been determined on June 22d and since it was ten days after plaintiff was removed to Iowa City before the doctors there deemed amputation proper. The court also ruled the doctrine res ipsa loquitur did not apply to the facts under consideration.

Of course plaintiff is entitled to the most favorable construction of which the evidence is fairly susceptible. Wilson v. Corbin, Iowa, 41 N.W.2d 702, 704, and citations.

On May 25, 1939, plaintiff, a machinist then 55, went to the office of defendants in Davenport and asked for injections for varicose veins in his legs. He went to defendants because he had been told they were the big industrial doctors there and were specialists. On plaintiff's second visit Dr. Bessmer, whom plaintiff wanted to see, turned him over to Dr. Spang, a young assistant in defendants' office, with the assurance Dr. Spang was an expert on treatment of varicose veins.

Dr. Spang told plaintiff the injection method was obsolete, futile and endless and the modern method was ligation by which an incision was made in each groin, the veins were tied at the knees and taken out. To plaintiff's inquiry whether such an operation was dangerous Dr. Spang assured him, 'Hell no, we can do it in 15 minutes in the office.' Plaintiff asked if he would lose time from work and was told he would not.

As directed, plaintiff returned to defendants' office the next day and was then instructed to report the following morning to Mercy hospital. Plaintiff objected to going to a hospital but Dr. Spang said, 'Don't be foolish. You wont have to stay there over a half hour and can go home and about your business.' Actually, the operation on June 9, 1939, on only one leg 'started about 9 or 9:30 and it was after 12 when completed.' When the outer vein had been removed from plaintiff's right leg Dr. Spang announced, 'we had better let the other leg go until we see how this turns out.' He said 'he didn't know how it was going to turn out. Maybe I am in an awful fix.' This prophesy proved more accurate than Dr. Spang's previous assurances.

Dr. Spang then told plaintiff he could not go home till midafternoon. A few minutes later the doctor said, 'Now that we have you here we are going to keep you.' Plaintiff was kept in the hospital four days and then taken home on a stretcher. 'Before I got home my leg was a little blue and swelling. * * * After I got home the whole foot turned black. I was in such misery I couldn't stand it and my wife called the doctor.' Dr. Spang then called on plaintiff almost daily and after a week at home on June 20 ordered plaintiff's return to the hospital in an ambulance.

On June 22 Dr. Bessmer told plaintiff 'we are going to have to take that foot off right away.' When plaintiff went 'up in the air' and accused Dr. Bessmer of making him a cripple the doctor made no denial of the charge but assured plaintiff he (Bessmer) would see that plaintiff got steady work at French & Hecht's. 'At that time he also promised me an artificial foot.' After June 23d neither defendants nor Dr. Spang saw plaintiff again. There is no explanation of this.

Before defendants last saw their patient and thereafter his leg had turned purple and in places black with white strings through it. It 'was swollen quite a bit' and felt like it was on fire. Plaintiff could scarely exdure the pain and frequent 'hypos' were necessary. On June 27 the county doctor, whom plaintiff did not know, evidently felt sorry for plaintiff and arranged for him to be taken to the state university hospital at Iowa City where his leg was amputated on July 7 below the knee and on July 27 at mid-thigh. He was released from the University hospital August 13.

Amputation of the leg was necessary because of gangrene caused by occlusion (blocking) of the femoral artery which carries blood to the leg. The evidence shows there are four possible causes of such occlusion:

1) Ligation (tying) of the artery (not the vein) 2) Injury to the artery (Dr. Fowler refers to this as spasm due to injury);

3) Embolism (a floating clot) in the artery; and

4) Thrombosis (stationary clot) in the artery.

Dr. Dorner (Who performed both amputations) and Dr. Fowler testify embolism probably did not cause this occlusion. There is no contrary testimony. Dr. Fowler says, 'As to how a thrombus would occur in an artery when you are operating on the vein, I would say if the artery was damaged at the time the patient was operated on a thrombus might be formed. As to any other way it could be caused I would say ver rarely--once or twice in three or four thousand operations. * * * There is usually a history of trauma in connection with thrombus because * * *. A blood clot in an artery in this kind of case is rare. A clot in the vein is rather common.'

It is true Dr. Fowler would not say for a certainty that if a thrombus caused the occlusion it was traumatic in origin.

Dr. Dorner testified, 'I would say the probability of thrombosis occurring in a femoral artery after saphenous vein ligation is quite rare.' This evidently refers to thrombosis as a coincidence, unaccompanied by prior injury to the artery.

The jury could properly find the occlusion of the artery which produced gangrene in plaintiff's leg was caused either by ligation of the artery as a result of mistake or injury thereto during the operation by Dr. Spang when 'there were black and blue finger marks up and down my thigh and it felt like he was tearing the whole inside of the let out.'

Dr. Dorner says 'There is a distinct difference between the artery and the vein so that one should be able to identify the difference.' As stated, the artery carries blood to the leg. The veins return blood from the leg to the heart. Dr. Dorner also testified 'Gangrene does not normally follow from such an operation.' It is true Dr. Dorner was unwilling to say for certain what caused the occlusion of plaintiff's artery.

I. Plaintiff argues the trial court erred in not applying the doctrine of res ipsa loquitur. Paragraph 7 of Count I of plaintiff's amended petition contains specific charges of negligence. We have held res ipsa loquitur may not be invoked in aid of such charges. Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 770, 11 A.L.R.2d 1164, and citations.

As stated, a separate count in a supplemental petition alleges the gangrene in plaintiff's leg resulted from Dr. Spang's negligent and unskillful act in ligating the artery rather than the vein. As eminent counsel for defendants seem to concede in Division I of their argument, this is a general charge of negligence and if there is evidence Dr. Spang mistakenly ligated the artery rather than the vein plaintiff would be entitled to the benefit of res ipsa loquitur in support of this charge. See Whetstine v. Moravec, 228 Iowa 352, 374-382, 291 N.W. 425, and citations. Defendants concede these decisions are in point if the artery were ligated: 'These cases would be in point only if it had been established Dr. Spang had severed the artery while working on the vein. * * * Given proof the artery was severed the want of care and skill can be inferred, * * *.'

II. Since there should be a reversal because of failure to submit the charge of abandonment and since the evidence upon a retrial may be different, it is perhaps unnecessary to pass on the sufficiency of the evidence to warrant submission to the jury of plaintiff's claim aside from abandonment. It may be conceded the evidence is not strong. But it seems sufficient, in the absence of explanation from defendants, for submission to the jury.

As stated, a finding would be warranted that the cause of the gangrene was either mistaken ligation of the artery, or injury thereto, by Dr. Spang. One of these causes, both chargeable to Dr. Spang, seems probable, not merely possible, and more probable than any other cause based on the evidence. It is not necessary the proof be conclusive or exclude every other suggested or possible cause. Bartholomew v. Butts, 232 Iowa 776, 783, 5 N.W.2d 7, 11, and citations; Woronka v. Sewall 320 Mass. 362, 69 N.E.2d 581, 582, 583, and citations.

It is clear that if the artery rather than the vein was ligated a finding of negligence in so doing would be proper. Defendants do...