Murphy v. Little, 41481

• Decision Date: 30 September 1965
• Docket Number: No. 1,No. 41481,41481,1
• Citation: Murphy v. Little, 112 Ga.App. 517, 145 S.E.2d 760 (Ga. App. 1965)
• Parties: M. C. MURPHY, by Next Friend, v. A. G. LITTLE
• Court: Georgia Court of Appeals

Page 760

145 S.E.2d 760

112 Ga.App. 517

M. C. MURPHY, by Next Friend, v. A. G. LITTLE.

No. 41481.

Court of Appeals of Georgia, Division No. 1.

Sept. 30, 1965.

Rehearing Denied Oct. 22, 1965.

Syllabus by the Court

1. In a malpractice case where negligence is alleged against a physician in improperly applying a plaster cast to a patient who had sustained a compound fracture of the forearm and in thereafter improperly failing to diagnose an impending circulatory impairment resulting from the placement of the cast in time to correct it without damage to the arm, medical testimony is necessary to establish whether the defendant exercised care and skill under the circumstances.

2. In Georgia, the reasonable degree of care skill prescribed in the Code for the practice of medicine is not that ordinarily employed by the profession in the immediate locality, but is that employed by the profession generally. In determining what is reasonable care and skill under the circumstances, it is the preogative of the jury to consider what is the degree of care and skill employed by the profession in the locality or community where the action arose.

The plaintiff in this malpractice action, an 11 year old boy, suffered a fracture of the ulna and radius midway of the right forearm on February 5, 1957. The notes and affidavit of the defendant physician, introduced in evidence on his motion for summary judgment, show that after reduction of the fracture he placed the patient's arm in a skin-type circular plaster cast which was then suspended from an overhead frame. The doctor noted that the hand was moderately swollen the following day and that on February 7, it was swollen and slightly dusky. On the 8th a small slit was made between the thumb and forefinger at the wrist end of the cast. Swelling continued but motion and sensation were found by the doctor to be normal through 9 a. m. on the 9th. At 3:30 that afternoon, however, the hand had become blue and insensitive; the cast was bi-valved and spread and color then returned to the fingers, but the hand remained numb. It then appeared that the plaintiff had suffered from Volkmann's ischemic contracture, a failure of circulation in the arm resulting in tissue necrosis, loss of use, and deformity. The arm withered, is noticeably shorter that the corresponding limb, and several skin and bone grafts were later performed at Mayo Clinic in an unsuccessful effort to ameliorate the situation.

The notes of the attending nurse show further that the patient suffered considerable pain for which he was given codeine on prescription; that he complained of numbness in his hand on February 6 at 4:30 a. m. and that at 10:45 p. m. the hand and nails were slightly cyanotic and the defendant was notified; that there was pain and more swelling on the 7th, the hand appeared blue and cold, and the doctor was again notified; that the base of the cast was slit around noon of the 8th but the patient was complaining of his hand and arm hurting during the afternoon, and that the cast was finally split at 3:30 p. m. on the 9th.

The defendant's motion for summary judgment included his own affidavit and that of another physician. Affidavits offered by physicians on behalf of the plaintiff were rejected and thereafter the defendant's motion was granted. The exceptions are to these rulings.

Paul C. Myers, Atlanta, for plaintiff in error.

Tillman & Brice, B. Lamar Tillman, J. Lundie Smith, Valdosta, for defendant in error.

DEEN, Judge.

1. There is no serious contention that the evidence in the record would not be sufficient to authorize a finding that the ischemic contracture or withering of the plaintiff's arm resulted from a circulatory embarrassment caused by excessive swelling of the arm within the rigid cast, and that if the cast had not been unyielding the circulation would not have been shut off when the swelling increased and the injury would not have occurred. From this it is argued that even in the absence of expert medical testimony for the plaintiff a jury question is presented as to whether the defendant's treatment constituted negligence. The question, however, is not whether the treatment resulted in disaster as it all too often may although every precaution known to medical science has been employed, but whether the services were performed in an ordinarily skillful manner. This is a medical question and the proper standard of measurement must be established by the testimony of medical experts. Pilgrim v. Landham, 63 Ga.App. 451(4), 11 S.E.2d 420; Shea v. Phillips, 213 Ga. 269, 271, 98 S.E.2d 552; Hayes v. Brown, 108 Ga.App. 360, 363, 133 S.E.2d 102.

2. The plaintiff relied primarily on the deposition of Dr. Charles Frankel, which was excluded by the court on the grounds (1) that no proper foundation had been laid, (2) that he was not qualified as an expert witness, and (3) that he was not familiar with medical standards existing in the profession in Georgia, and especially in Valdosta. Dr. Frankel testified that he was a graduate of Rush Medical School, University of Chicago, with residency in orthopedics at the University of Virginia, John Hopkins, and Washington University, that he had a master's degree in orthopedics from the University of Virginia, was certified by the American Board of Orthopedic Surgery, has been in the practice of orthopedicas for about thirty years, is presently staff physician of the University of Virginia Hospital, Orthopedic Surgeon and Associate Professor of Orthopedic Surgery at the University of Virginia Medical School, and is a member of the American Orthopedic Association, American Academy of Orthopedic Surgeons, Southern Medical Association, Industrial Surgical Associations, and other professional groups. 'Q. Are you familiar with the proper and accepted standards of medical practice that pertain to treatment of fractures generally throughout the United States? A. Yes, sir, I think so. Q. Are you familiar with proper and accepted standards of medical treatment of fractures in small communities?

A. Well, I am familiar with what purports to be minimal standards. And I would not say that standards in small communities would be much different so far as minimal standards are concerned as in any other community. Q. Are you speaking with respect to fracture treatments? A. Yes.' After stating the method of treatment, the witness was asked: 'Q. Doctor, would the standards of treatment of such a fracture as we have outlined be any different if the general surgeon were treating the fracture rather than an orthopedic specialist? A. The minimal standards would be the same. We would hold the orthopedist to a much higher standard. Q. Now, are the standards which you have outlined or given me before--are these the minimal standards or the standards for an orthopedist? A. No, sir, these are minimal standards, the standards we teach medical students.' On cross examination the following occurred: 'Q. I believe you stated you attempt to teach your medical students only the minimum standards? A. No, I said that we teach them by the general standards but we expect them to understand the minimal standards. Q. You attempt to teach them the very high standards? A. That's right, but we don't hold...