Melville v. Southward
| Decision Date | 14 May 1990 |
| Docket Number | No. 89SC39,89SC39 |
| Citation | 791 P.2d 383 |
| Parties | Lulu I. MELVILLE, Petitioner, v. Stanton C. SOUTHWARD, Respondent. |
| Court | Colorado Supreme Court |
Robert A. Millman, P.C., Robert A. Millman, Colorado Springs, for petitioner.
Hall & Evans, Duncan W. Cameron, Denver, for respondent.
The question in this case is whether a plaintiff in a medical malpractice action against a podiatrist, who performed foot surgery and rendered post-operative care and treatment to the plaintiff, may elicit expert opinion testimony from a practitioner of another school of medicine, namely orthopedic surgery, on the standard of care applicable to podiatric surgery and post-operative care and treatment. The trial court permitted the plaintiff, over the defendant's objection, to elicit an expert opinion from an orthopedic surgeon that the podiatric surgery performed on the plaintiff's foot and the post-operative treatment rendered to the plaintiff fell below the standard of care applicable to the surgery in question and also fell below the standard of care applicable to the post-operative care and treatment of the patient. The court of appeals, in an unpublished opinion, reversed the judgment entered on the jury verdict for the plaintiff and ordered the dismissal of the plaintiff's complaint with prejudice, reasoning that the testimony of the orthopedic surgeon was insufficient as a matter of law to establish a prima facie case of negligence against the podiatrist. Melville v. Southward, No. 86CA1029 (Colo.App. Nov. 25, 1988). We agree with the court of appeals that the lack of any foundation for the orthopedic surgeon's familiarity with the podiatric standard of care for the surgery in question and the post-operative care and treatment of the patient rendered the orthopedic surgeon's opinion testimony inadmissible. However, contrary to the court of appeals' decision, we believe that the proper disposition of this matter is to return the case to the trial court for a new trial.
The plaintiff-petitioner, Lulu Melville (plaintiff), filed a negligence action in the district court of Fremont County against the defendant-respondent, Dr. Stanton C. Southward (defendant), a licensed podiatrist. The complaint, as pertinent here, alleged that on or about August 14, 1980, the defendant performed a surgical procedure in his office on the plaintiff's right foot, that the surgical procedure fell below the standard of reasonably careful podiatric surgery, that defendant failed to provide adequate post-operative care and treatment, and that the plaintiff sustained a serious infection and developed osteomyelitis as a result of defendant's negligence. The defendant denied the allegations of negligence and asserted that any injury suffered by the plaintiff was a result of her own negligence.
The case proceeded to a jury trial on May 27, 1986, at which the defendant represented himself. The evidence at trial established the following sequence of events. The plaintiff first consulted the defendant in July 1980 for an ingrown toenail. The defendant removed the ingrown toenail and subsequently, on August 14, 1980, recommended that plaintiff undergo a surgical procedure known as a metatarsal osteotomy in order to relieve the discomfort that the plaintiff had been experiencing. The recommended surgery consisted of the cutting and shortening of the metatarsal shaft of the second toe in the right foot.
The plaintiff agreed to the surgery, and it was performed on August 14 in the defendant's office. The defendant applied a local anesthesia to the plaintiff's foot and made a minimal incision, about a quarter-inch wide, through the top of the foot and then used a drill to fracture the metatarsal shaft and a dental burr to remove any bone fragments. After completing the surgery, he instructed the plaintiff to soak her foot in vinegar and water. The defendant wrapped the foot in a Unna boot, which basically is an ace bandage soaked in an antibiotic, placed plaintiff's foot in a half shoe, and provided the plaintiff with a pamphlet containing post-operative instructions.
The plaintiff returned home after the surgery and resumed her usual activities, which consisted primarily of gardening. She wore the half shoe, soaked her foot daily as directed, and returned to the defendant's office approximately one week later for a check-up. Upon examining the foot the defendant commented, "I don't like the looks of this," and then medicated and rewrapped the foot and provided the plaintiff with an antibiotic medication.
On August 26, 1980, the plaintiff telephoned the defendant and complained that her foot was swollen, red, and quite painful. The defendant advised her to increase the amount of vinegar in the prescribed solution and to soak the foot more frequently, and stated that he would check the foot again in two days at the plaintiff's scheduled office appointment. The defendant, at the scheduled office visit, told the plaintiff that her foot was healing, and he rewrapped the foot with clean bandages. The next day, August 29, the plaintiff noticed a sore spot near the surgical site and a fluid exuding from that area when it was touched. The plaintiff telephoned her family physician, Joseph R. McGarry, for an appointment.
Doctor McGarry, a medical doctor, saw the plaintiff on September 3, 1980. The plaintiff told Doctor McGarry that she had undergone surgery on the foot two weeks previously and that the foot had become swollen and red and had been draining at the surgical site. Upon examination of the foot, McGarry saw that the surgical site was badly infected. McGarry instructed the plaintiff to keep her foot elevated, prescribed an antibiotic, and told her that her infection was quite serious and to return to his office for a check-up. When the plaintiff experienced more drainage from the surgical site, McGarry admitted her to a hospital for X-rays and for the administration of antibiotics intravenously. McGarry diagnosed the plaintiff's condition as a compound fracture of the second metatarsal on the right foot, with concomitant infection resulting from the surgery, and recommended that plaintiff see Doctor Michael Barnard, an orthopedic surgeon practicing in the area.
Doctor Barnard first saw the plaintiff on October 17, 1980, and noted that the plaintiff's foot was swollen and slightly red. X-rays revealed an erosion of the bone in the area of the second metatarsal. Such bone erosion, according to Barnard, was consistent with osteomyelitis which, in his view, had been caused by the osteotomy performed by the defendant.
Plaintiff's counsel asked Doctor Barnard whether he had an opinion to a reasonable medical probability on whether the osteotomy was performed below the standard of care for such a surgical procedure. The defendant objected to this line of questioning on the basis that no foundation had been laid regarding Barnard's knowledge of the standard of care applicable to podiatry. The trial court overruled the objection and permitted Barnard to testify. Barnard testified that the osteotomy performed by the defendant was below the standard of care for two reasons: first, the surgery was unnecessary because none of the pre-surgical X-rays indicated a deformity in the metatarsal; and second, even assuming the surgery was necessary, the osteotomy was performed in an unsterile office environment and thereby subjected the bone to a high risk of infection. Barnard acknowledged in his testimony that he was unfamiliar with the standards applicable to podiatric foot surgery, was not familiar with podiatric literature, had never received any instruction on podiatry, and had never performed the surgical procedure involved in this case.
Doctor Barnard also testified, again over the defendant's objection, that the defendant's post-operative treatment of the plaintiff fell below the proper standard of care for treating an osteotomy. Barnard testified that there is a uniform physiological bone healing process for all types of bone surgeries and that proper post-operative treatment of foot surgery requires that the foot be elevated for 24 to 48 hours without weight-bearing as a means of reducing inflammation. Inflammation, according to Barnard, can cause infection. Barnard further testified that a review of the plaintiff's medical history and the defendant's notes, as well as an examination of the plaintiff's foot, revealed that the plaintiff had received inadequate post-operative treatment. Barnard based his opinion on the fact that the plaintiff's right foot had not been adequately immobilized and on the further fact that the soaking treatment provided only semi-antibiotic surface treatment of the wound and not the type of internal treatment necessary for the healing of a post-operative infection.
Doctor Barnard also testified that he performed a surgical procedure on the plaintiff's right foot on July 30, 1981, for the purpose of removing some degenerative osteophytes that had formed around the second metatarsal. It was Barnard's opinion that the plaintiff had sustained a permanent disability as a result of the defendant's surgery and would have difficulty walking and balancing herself.
At the close of the plaintiff's case, the defendant moved for a directed verdict, claiming that the plaintiff had failed to establish a prima facie case of negligence due to the lack of any expert testimony on the applicable standard of care for podiatric surgery and post-operative care and treatment. The trial court denied the motion, ruling that an orthopedic surgeon has more training and expertise than a podiatrist and thus is competent to provide an opinion on the standard of care applicable to the podiatric surgery performed by the defendant.
The defendant testified on his own behalf. He stated that the plaintiff had failed to follow some of his post-operative instructions...
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