Obolensky v. Saldana Schmier, 7198.

• Citation: 409 F.2d 52
• Decision Date: 16 April 1969
• Docket Number: No. 7198.,7198.
• Parties: Helene OBOLENSKY, Plaintiff, Appellant, v. Raoul SALDANA SCHMIER, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

409 F.2d 52 (1969)

Helene OBOLENSKY, Plaintiff, Appellant, v. Raoul SALDANA SCHMIER, Defendant, Appellee.

No. 7198.

United States Court of Appeals First Circuit.

April 16, 1969.

Richard deY. Manning, New York City, on brief for appellant.

Alex Gonzalez, San Juan, Puerto Rico, with whom Gonzalez & Rodriguez, San Juan, Puerto Rico, was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This suit for medical malpractice arises out of defendant's treatment of an injury to plaintiff's knee. The case was tried to the district court sitting without a jury. After taking the case under advisement the court made findings of fact and conclusions of law which resulted in dismissal of the complaint. The case is here on plaintiff's appeal.

On February 5, 1965, plaintiff, a forty-five year old fashion editor of Redbook magazine who was in Puerto Rico on a photography assignment, fell and injured her left knee while taking photographs in the countryside near San Juan. Shortly after the accident she was driven to a clinic in Manati where a general practitioner named Dr. Mendez took X-rays, diagnosed the injury as a fracture and placed the knee in a cast. Thus immobilized the knee was extended and flexed at an angle of 5° to 8°. Plaintiff was then transported by ambulance to Teachers Hospital in Hato Rey, a suburb of San Juan. Upon her arrival there, more X-rays were taken of the knee while still in the original cast. The defendant, Dr. Raoul Saldana Schmier, an orthopedic surgeon, was called and he visited the plaintiff in the hospital early that evening. During this visit plaintiff told him of her plans to return to New York by plane the following day. She testified that defendant told her the cast Dr. Mendez had put on was "inadequate and antiquated," that she could not travel in a straight knee cast and that he would have to put her knee in a bent position so that it would not become stiff. Later the same evening the defendant put on a new cast which flexed plaintiff's left knee to an angle of 64°-65°. The next morning (February 6) X-rays were taken of the knee in the new cast. According to plaintiff, after the defendant examined these X-rays he recommended that plaintiff undergo an immediate operation but she demurred. That evening she went by ambulance to the airport and took the plane to New York.¹ Upon her arrival in New York she was taken by ambulance to The Presbyterian Hospital where additional X-rays were taken. Immediately thereafter Dr. Frederick S. Craig, a New York orthopedic surgeon, performed an open reduction on her knee.

The injuries to plaintiff's knee were threefold: depression of the tibial plateau, widening of the tibial condyles and dislocation of the knee.² Dr. Craig testified that in his opinion the open reduction he performed was necessary "because of the width of the tibial condyles spread, because of the displacement of fragments to prevent an unstable knee."

It is plaintiff's position that the defendant in flexing her knee to approximately 65° departed from the recognized standards of orthopedic practice and thereby greatly aggravated the original injury. In dismissing the complaint the district court found (1) that the plaintiff did not show by a preponderance of the evidence that by defendant's flexing of the knee to the 65° angle further damage was done to the tibial plateau or that such flexing caused a further widening of the condyles; (2) that although the flexing was unnecessary it was not negligence to have so flexed the knee, and (3) that even if defendant were negligent in so doing it was not established by a preponderance of the evidence that the flexing was the proximate cause of plaintiff's disability.

On appeal, plaintiff contends that in light of the credible medical evidence, particularly that of her two experts, the trial court erred in making these findings. In this connection we point out that plaintiff has a heavy burden; the findings of fact made by the trial court are not to be lightly overturned. Fed.R.Civ.P. 52(a).

With this in mind, we turn first to the critical question of whether the trial court's finding of lack of proximate cause was clearly erroneous. On this issue plaintiff offered the testimony of two expert witnesses, Dr. Craig and Dr. Cauchoix. Dr. Cauchoix in November 1965 removed the metal plate and the screws which Dr. Craig had inserted in plaintiff's leg in February 1965. Both of these experts admitted that the X-rays taken by Dr. Mendez shortly after plaintiff's fall showed some depression of the plateau and widening of the condyles. In addition, Dr. Craig saw subluxation (dislocation) in one of these early X-rays. He testified, however, that flexing the knee to an angle of 64° caused an increase in the widening of the condyles, and Dr. Cauchoix was of the opinion that after this flexing there was a "big collapse of the tibial plateau." On the other hand, the defendant's experts, Drs. Lugo and Horn, also orthopedic surgeons, while pointing out the difficulty of comparing the various X-rays taken at different angles, made such a comparison and testified that the injuries complained of were sustained in plaintiff's original fall. Dr. Lugo testified that the difference of the angle at which the...