Orthopedic Clinic v. Hanson

• Decision Date: 21 June 1966
• Docket Number: No. 41126,41126
• Citation: 1966 OK 119,415 P.2d 991
• Court: Oklahoma Supreme Court
• Parties: The ORTHOPEDIC CLINIC, a co-partnership, and John E. McDonald, M.D., Plaintiffs in Error, v. Flossie HANSON, Defendant in Error.

Page 991

415 P.2d 991

1966 OK 119

The ORTHOPEDIC CLINIC, a co-partnership, and John E McDonald, M.D., Plaintiffs in Error, v. Flossie HANSON, Defendant in Error.

No. 41126.

Supreme Court of Oklahoma.

June 21, 1966.

Syllabus by the Court

1. Expert medical testimony is not required to establish the cause of an objective injury where there is competent evidence, without such testimony, to establish the cause of the injury with reasonable certainty.

2. Where all the evidence, including circumstantial evidence, the reasonable inferences to be drawn therefrom, and the extrajudicial admission of the defendant, make it appear more probable that the plaintiff's injury resulted from the negligence of the defendant than from another source, judgment for the plaintiff is proper.

3. Defendant may not complain on appeal of an alleged erroneous instruction more favorable to him that the instruction which he asserts he is entitled to receive.

Appeal from the District Court of Tulsa County; Donald Barnes, Assigned Judge.

Action by Flossie Hanson against the Orthopedic Clinic, a co-partnership, and John E. McDonald, M.D., to recover damages for personal injury allegedly sustained as a result of negligence of an employee of the defendants while treating the plaintiff with a therapy machine. From a judgment for the plaintiff, defendants appeal. Affirmed.

Houston, Klein & Davidson, by Lee Grigg and Richard T. Sonberg, Tulsa, for plaintiffs in error.

Paul W. Brightmire, Tulsa, for defendant in error.

HODGES, Justice.

This action was commenced by Flossie Hanson, the plaintiff, to recover damages for personal injuries allegedly sustained as a result of negligence of certain agents and employees of the defendants John E. McDonald, a licensed medical doctor, and the Orthopedic Clinic, a co-partnership. The parties will be referred to in this opinion by their trial court designations.

The plaintiff's petition alleged that she was receiving therapy treatments under the direction of Dr. McDonald at the Clinic operated by the partnership, which treatments were administered by the agents and employees of the defendants. The plaintiff further alleged that on March 15, 1961, while receiving therapy treatment from a machine designed to give electrical shock treatments, known as a medcolator, she received a third degree burn on her ankle either because the machine was defective or because it was improperly operated. The case was tried to a jury and resulted in a verdict for the plaintiff. From this verdict and the judgment of the trial court overruling defendant's motion for a new trial, the defendants have appealed to this court by petition in error with case made attached.

The history of the plaintiff's condition preceding this action is not in dispute. She sustained an injury to her back when she slipped and fell at a local grocery store on November 9, 1959. As a result she began experiencing soreness and stiffness in her lower back and pain radiated down her left leg. Her symptoms persisted during treatment by Dr. W. H. Morton, her family physician, and on March 3, 1960, he referred her to Dr. McDonald, a specialist in orthopedic surgery. On March 21, 1960, Dr. McDonald performed a laminectomy upon plaintiff and repaired a ruptured disc in her spinal column. Plaintiff was then treated by means of heat and massage applied to her lower back. In June, 1960, Dr. McDonald prescribed therapy treatments for the plaintiff's left leg. This treatment was conducted in the therapy department of the Orthopedic Clinic and included whirlpool, hand massage, and the medcolator. The purpose of this therapy treatment, according to Dr. McDonald, was to stimulate and rehabilitate weakened muscles in the plaintiff's leg. Plaintiff does not contend that Dr. McDonald did not use proper professional skill and judgment in making his diagnosis, in performing surgery, or in prescribing the postoperative treatment; but asserts that the technician in charge of the medcolator negligently burned her ankle during one of the therapy treatments.

The medcolator is a therapy machine designed to produce an artificial stimulation of the muscles of the patient by means of electrical shock. The current flows from a transducer (an object that looked like a door knob), through the patient, and into a ground pad. The movable transducer is applied to the patient by the operator and the ground pad is placed under the patient's body in the area where the transducer is being applied.

The plaintiff testified that she had received approximately 50 treatments with the medcolator prior to March 15, 1961, the date she sustained the injury complained of. On one previous occasion, plaintiff complained that the machine was stinging her when the voltage setting was increased. According to the plaintiff, she had no other difficulty with the machine until March 15, 1961. On this occasion the operator of the machine attempted to begin the treatment but nothing happened. The operator then put water on ground pad, which was hard and crusty, and adjusted the machine. When the machine did start, it immediately began stinging and burning the plaintiff's leg causing the plaintiff to state to the operator 'Blanche, this thing is burning me, stop it', to which the operator purportedly replied, 'Flossie, I am sorry, I will have this thing worked on tomorrow'. Plaintiff then testified that she and the operator immediately examined the inside of her left ankle and the area was already turning 'real pink'. That ended the treatment and the plaintiff went home. Upon arrival at her home, plaintiff removed her shoe and sock as her ankle continued to burn. Upon examining her ankle she discovered that the surface had blistered and burst, and that the outer layer of skin had come off with her sock leaving a raw place on her ankle 'about the size of a half dollar'. The plaintiff testified that she was first treated for the burn by the nurses at the Clinic who applied steaming hot packs to the open wound causing her considerable pain. She stated she told these nurses that she had burned her foot by placing it in hot water at home because she did not wish to cause the operator of the medcolator any undue difficulty. When the wound did not heal but appeared to get worse, she brought the matter personally to Dr. McDonald's attention. According to the plaintiff, Dr. McDonald would not accept her explanation that the ankle had been burned but stated rather that the condition resulted from poor circulation in the leg. As her ankle failed to respond to the treatment prescribed by Dr. McDonald, the plaintiff returned to Dr. Morton, her family physician for treatment. Dr. Morton hospitalized the plaintiff for a period of twenty-two days while he treated the ankle injury. A thin layer of skin grew over the burned area but it is still tender and breaks open if it comes in contact with water or any type of liquid.

Doctor W. A. Morton testified for the plaintiff. He stated that he had been a general practitioner in Tulsa, Oklahoma, since 1937 and that he was the plaintiff's family physician; that he had originally sent her to Dr. McDonald; that she subsequently returned to his care in the summer of 1961 for treatment of an ulcer on her ankle; that she gave him a history at that time of having sustained the injury by being burned by equipment at the Orthopedic Clinic; and that he hospitalized the plaintiff and treated the ulcer. He further testified that he was unable to diagnose the cause of the ulcer on plaintiff's ankle, but that it was not incompatible with having been caused by an electrical burn. On cross-examination he also acknowledged that the ulcer could have been caused by poor circulation but stated that it did not possess all the characteristics of an ulcer of that type.

This concluded the plaintiff's case-in-chief to which the defendants entered a demurrer to the evidence for failure to prove a cause of action against them. This demurrer was overruled by the court and the defendants proceeded to present their evidence.

The evidence for the defense was presented by Dr. McDonald, and three female employees of the Clinic. The employee, who operated the medcolator, denied that plaintiff ever sustained a burn while being treated with that machine. She admitted on cross-examination that it would not be proper for her to attempt to fix the machine if anything was wrong with it but that she should immediately shut it off and report the difficulty to her supervisor. She further recalled that there was one occasion during the treatment of the plaintiff when the current would not come through the transducer. She stated that when she was able to get the current started on this occasion 'I was not getting the reaction I wanted'.

Dr. McDonald testified that he has been engaged in the practice of medicine since 1928 and specializes in orthopedic surgery. He testified in some detail concerning the history of the plaintiff's injury, the surgery performed, and his reasons for prescribing physical therapy. He expressed the opinion that the ulcer on plaintiff's leg did not have the appearance of an electrical burn. It was his diagnosis that the condition resulted primarily from poor blood circulation in the plaintiff's leg.

The remaining two witnesses, nurses at the Clinic, testified that they had treated the ulcerated condition on plaintiff's ankle and that the plaintiff had never claimed, in their presence, to have suffered a burn at the Clinic but had told them that she burned her ankle at home by placing it in water that was too hot.

It is the first contention of the defendants that the trial court erred in not directing a verdict for the defendants at the close of all the evidence.

It is well settled that in determining whether the plaintiff's evidence is sufficient to withstand defendant's motion for a directed verdict, the trial court should consider as true all of the evidence favorable to the...