Merryman v. Bunch

• Decision Date: 12 October 1940
• Citation: 145 S.W.2d 559,24 Tenn.App. 408
• Parties: MERRYMAN v. BUNCH.
• Court: Tennessee Court of Appeals

145 S.W.2d 559

24 Tenn.App. 408

MERRYMAN v. BUNCH.

Court of Appeals of Tennessee, Middle Section.

October 12, 1940

Certiorari Denied by Supreme Court December 14, 1940.

Appeal in Error from Circuit Court, Davidson County; Richard P Dews, Judge.

Suit by Harris D. Merryman against Dr. Ray C. Bunch for malpractice. From a judgment for defendant, plaintiff appeals in error.

Affirmed.

Rutherford & Rutherford, of Nashville, for plaintiff in error.

Seay Stockell & Edwards, of Nashville, for defendant in error.

FELTS Judge.

Harris D. Merryman brought this suit against Dr. Bunch for malpractice in treating his broken leg. The gist of the negligence charged is that Dr. Bunch failed to set and keep the bones in apposition so they could properly unite; that he concealed this condition from plaintiff by giving him opiates and morphine; that after treating plaintiff for about a month he entered into a written contract to furnish plaintiff additional medical attention and hospitalization, which he failed to furnish; and that as a result plaintiff suffered much pain, his leg had to be rebroken and reset by other surgeons, and has failed to get well, leaving plaintiff permanently disabled. Defendant pleaded not guilty.

At the close of plaintiff's evidence the trial court directed a verdict for defendant and entered judgment dismissing the suit. Plaintiff appealed in error and insists the evidence made a case for the jury.

On January 14, 1938 plaintiff was in an automobile accident both bones in his right leg being broken between the knee and ankle. He was taken to Dr. Bunch's Clinic for treatment. Dr. Reese administered the ether and Dr. Bunch set the bones and put a cast on the leg. While plaintiff was in Dr. Bunch's Hospital, on February 4, 1938, they made this agreement:

"I, Ray C. Bunch, a duly licensed physician in the State of Tennessee, of 2629 Gallatin, Road, in the City of Nashville and County of Davidson and State of Tennessee, for the sole consideration of ($750.00) Seven Hundred Fifty and No/100 Dollars, to me paid by Harris Merryman and/or Cherokee Mills and/or Jack Morris, the receipt whereof is hereby acknowledged, do hereby agree to pay all medical bills that have been incurred by the said Harris Merryman from and including January 14, 1938, to and including February 3, 1938, including my own bills, and do hereby agree to furnish the said Harris Merryman with all necessary additional medical attention, including hospitalization, only through March 4, 1938, for all personal injuries sustained by the said Harris Merryman in an accident that occurred on or about the 14th day of January, 1938, at or near the intersection of Gallatin Road and East Cahal Avenue, Nashville, Tennessee, when the said Harris Merryman was struck by an automobile owned and operated by the said Jack Morris, an employee of the said Cherokee Mills. Witness my hand and seal this the 4th day of February, 1938.

"Ray C. Bunch,

___

Ray C. Bunch, M. D."

Plaintiff was in bed in Dr. Bunch's Clinic from January 14, to March 3, 1938, 47 days. After he had been there about four weeks Dr. Bunch put on a new cast. When the old one was removed the leg was bent, the foot "twisted" and there was a "sink-hole" in the leg where it was broken. The doctor told him the sink-hole was caused by lack of circulation due to the cast being on the leg, and in the course of time it would get all right when the cast was taken off. Dr. Bunch straightened the foot, put on a new cast and continued to treat the leg. He made X-rays of the leg two or three times while treating it. During this time he gave plaintiff some morphine or codeine to relieve his pain.

On March 3, 1938 plaintiff left Dr. Bunch's Clinic and went to the home of his sister, Mrs. Chockley. He, however, continued to return to the hospital for treatment by Dr. Bunch and Dr. Bunch again changed the cast. Plaintiff was able to go about on crutches, and went several times to baseball games in Nashville. On one occasion some one walked by plaintiff, struck his toe and re-injured his leg.

On July 5, 1938, he went to a Government Hospital in Lexington Kentucky, and stayed there four or five days. The doctors there X-rayed his leg and wanted to operate on it. But he refused to allow this and came back to Nashville. He continued to go to Dr. Bunch at intervals between July, 1938, and January, 1939. About that time he told Dr. Bunch he wished to have another surgeon operate on his leg. Dr. Bunch told him to go see Dr. Carpenter, one of the best bone specialists in the South, and Dr....