Morris v. Hoffman
| Citation | 551 S.W.2d 8 |
| Parties | C. A. MORRIS, M. D., Appellant, v. Bonita HOFFMAN, Appellee. |
| Decision Date | 04 March 1977 |
| Court | Court of Appeals of Kentucky |
Frank V. Benton, III, Benton, Benton & Luedeke, Newport, for appellant.
Gary L. Gardner, Eubanks, Gardner & Lorenz, Louisville, for appellee.
Before WHITE, HOGGE and PARK, JJ.
This appeal arises out of a medical malpractice action when one and one-half cc's of procaine penicillin were injected into plaintiff's left buttock by the defendant. A jury found for the plaintiff in the amount of $69,222.90, and the defendant appeals.
At the time of trial appellant was a seventy-nine year old physician involved in general practice in Covington, Kentucky. The appellee is a thirty-one year old female of slight build. During the month of February, 1972, she visited the appellant's office on several occasions and received a total of seventeen injections of various medications. All of these injections were given in either her left or right buttock. The last injection was administered February 26, 1972, in her left buttock while she was seated on a stool. Appellee testified that she experienced immediate pain in her left leg and hip upon insertion of the needle. When she complained the next day of pain in her inflamed left buttock, she testified the defendant said,
Appellee testified that again on February 28, 1972, appellant told her, Appellant's medical records of February 28, 1972, substantiate appellee's complaint of inflammation of the left buttock in these words:
The appellee was hospitalized on March 2, 1972, and was placed under the care of Dr. Vernon Lee, a surgeon. She remained in the hospital ninety-two days and Dr. Lee performed four operations on her left buttock to remove five to six centimeters in thickness of necrotic tissue and slough.
The question before us on this appeal is: was there sufficient evidence for the court below to submit to the jury whether or not the appellant's breach of the standard of care, if any, was the proximate cause of appellee's injuries? Appellee's burden of proof at the trial is greater than merely proving a negligent act followed by injury. There must be proof that the negligent act was the proximate cause of the injury. Negligence in medical malpractice cases must be established by expert testimony unless negligence and injurious results are so apparent that a layman with general knowledge would have no difficulty recognizing it. Johnson v. Vaughn, Ky., 370 S.W.2d 591 (1963). As for proximate cause, it has been held that because of the difficulty in proving causation in malpractice cases, circumstantial evidence may in some cases be sufficient. Johnson v. Vaughn, supra. However, the rule is that ordinarily expert evidence is necessary to support the conclusion of causation in malpractice actions; and the medical testimony must be that the causation is probable and not merely possible. Jarboe v. Harting, Ky., 397 S.W.2d 775 (1965).
So that we may more intelligently test the two principal issues, viz: negligence, if any, and proximate cause; we will examine each issue individually in the light of the testimony as presented here and see if there was sufficient expert evidence for the judge to submit the case to the jury on both issues.
In order to define those areas of the buttocks where injections are normally given, each buttock is divided into quadrants. All the expert witnesses, including the appellant, agreed that the upper outer quadrant (quadrant 2) is the site of proper choice. This area is preferred because injections in any of the other quadrants can cause damage to the sciatic nerve or to the gluteal blood vessels. Appellee contends that the last injection was given in the upper inner quadrant (quadrant 1) of her left buttock and she pointed out the exact location to both the jury and the judge. Appellant testified that the injection was given in the upper outer quadrant (quadrant 2).
The appellant, Dr. C. A. Morris, testified as follows at T.E. 143-144 when asked as to the location of the injury:
Q. 299. Will you refer to plaintiff's Exhibit 4 in conjunction with Plaintiff's Exhibit 5 and tell us where the area of injury lies as represented by the photograph and as compared to the drawing of Plaintiff's Exhibit 5, in which quadrant?
A. I would answer that, Mr. Gardner and your honor, in saying that most of this area here is where this . . . would be in the internal of quadrant number one, the majority is in this quadrant here, in the quadrant number one.
Dr. A. John Anlyan, testified by deposition as plaintiff's expert medical witness. In response to a hypothetical question, his answer was as follows (Deposition at 15, 16):
. . . (D)o you now have an opinion as to whether or not the manner of injection and the site selection for this injection would be consistent with good medical practice and within the realm of the standard of care that this physician owed this hypothetical patient?
A. by "the manner of injection," I gather you mean while the patient was sitting up?
Q. Yes, Doctor.
A. I feel that that is improper. As to the site of injection, again I repeat that this black eschar covers a wide area of the left buttock, and it is difficult for me to pinpoint the exact point of entry of a needle in this area.
It is probably valid, however, that the injection occurred at the center of this eschar, which would place this injection, as I stated before, in the upper medial quadrant of the left buttock.
Q. Doctor, would the selection of that site, if in fact that was the site of injection, be consistent with good medical practice and within the realm of the standard of care that this physician owed this hypothetical patient?
A. No.
Dr. James F. Siles, one of appellant's expert witnesses, testified as follows on cross-examination (T.E. at 194-195):
Q. 12. Is it not also true, there is a profusion of arteries and veins in that quadrant number one in the area of the sciatic nerve?
A. Yes, sir.
Q. 13. And is it not also true that one of the reasons why you don't give an injection in quadrant number one, which would be in the upper inner quadrant of the left buttock area, in addition to not irritating or hitting the sciatic nerve is because of the possible penetration of the injected substance in the veins and arteries of that area?
A. That is true.
Q. 14. So can we conclude, Doctor, from this and based on your experience and training in the field of medicine that to inject procaine penicillin in the area of quadrant number one would not be consistent with good medical practice in your opinion?
A. Yes, sir, that is true.
Q. 15. And it would be a deviation from the standard...
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