Pfeiffer v. Salas

• Decision Date: 30 June 1971
• Citation: 360 Mass. 93,271 N.E.2d 750
• Parties: Kathleen G. PFEIFFER et al. v. Jose S. S. SALAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 750

271 N.E.2d 750

360 Mass. 93

Kathleen G. PFEIFFER et al. v. Jose S. S. SALAS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 9, 1971.

Decided June 30, 1971.

Benjamin Goldman, Boston, for plaintiffs.

Joseph L. Tauro, Boston, for defendant.

Before SPIEGEL, REARDON, QUIRICO and BRAUCHER, JJ.

QUIRICO, Justice.

This is an action of tort against a surgeon (defendant) for alleged malpractice in which Kathleen G. Pfeiffer (plaintiff) ¹ seeks to recover for personal injuries sustained by her, and Ralph Pfeiffer, Jr., her father, seeks to recover for hospital and medical bills incurred by him. The case was tried to a jury which returned verdicts for the defendant on the claims of both plaintiffs. The case is before us on various exceptions taken by the plaintiffs to rulings by the judge during the presentation of evidence and to instructions which he gave to the jury. We summarize the evidence to the limited extent necessary for the purposes of this decision.

On December 31, 1963, the plaintiff fractured her left leg in an accident. She was taken to the Leonard Morse Hospital in Natick where the defendant, who was an orthopedic surgeon, took charge of her, operated on her leg, placed an eighteen inch long stainless steel Hansen-Street rod in the left femur and applied a cast to the leg. The cast was removed on March 4, 1964. On that date hospital personnel taught her how to use crutches and gave her rehabilitation exercises or therapy, and she left the hospital. She continued to use crutches until the end of the school year that summer.

In late July and early August, 1964, the plaintiff's left hip became red, came to a head with a hole in the center and was draining. Pus and stringy material came from the hole. The defendant examined her at the Leonard Morse Hospital, took some of the material which was draining and had it tested in the hospital laboratory. The test report includes the entries: 'Organisms found, Hemolytic staphylococcus aureus. Resistant to penicillin.'

The plaintiff was an inpatient at the same hospital from August 17 to August 26, 1964. During that period the defendant performed surgery on her left hip where it was draining, treated the infection, and applied three sutures. The hospital record includes the following: 'A generous degree of elliptical incision was made removing the brownish indurated fibrofatty tissue component of the left hip wound. The drainage site was noted to involve the peri-trochanteric region of the greater trochanter from which the metallic cap of the femoral Hansen-Street rod was protruding. * * * Three silk stay sutures were utilized to diminish the dead space area.' The surgery involved in the original insertion of the Hansen-Street rod had left a six inch scar on the plaintiff's hip. The surgery of August, 1964, for the infection, left a cavity at that point which is noticeable when the plaintiff sits down, and it left a cavity scar about six inches long and one and one-half inches wide.

In October, 1964, the plaintiff's left hip again started to redden and drain a reddish-yellow thick liquid in the area of the incision of August, 1964. She was again admitted to the Leonard Morse Hospital on October 27, and was discharged on October 30. The hospital record shows: 'Preoperative Diagnosis: Metallic foreign body bursitis of the left hip due to fracture immobilization of femur with femoral rod. Post-operative Diagnosis: same. Operation: Removal of femoral rod. Date of operation: 10/28/64.' This operation involved another incision along the existing scar, and it was again sutured. An X-ray taken on October 30 showed that there was solid healing of the plaintiff's left femur across the old fracture site. The plaintiff went to the defendant's office on November 4 and November 9, 1964, for removal of sutures.

Late on the evening of November 9, while the plaintiff was brushing her teeth, she heard a snap and blacked out. She was again taken to the Leonard Morse Hospital where X-rays were taken. They showed that the plaintiff had refractured her left femur at the old site of fracture. On November 10, the plaintiff was transferred to the Peter Bent Brigham Hospital and was there treated by a doctor other than the defendant until her discharge on March 9, 1965. She was then confined to bed at home for a period and started to walk with crutches in April, 1965.

There was conflicting evidence on the question whether the defendant advised the plaintiff to use crutches at various times during the period that she was under his care. We do not summarize that evidence because it is not a factor in our decision of this case.

The defendant was called as a witness by the plaintiffs and he testified in part as follows: He could have treated the plaintiff's fracture by either of two methods. One was 'the conservative method of traction,' and the other was by the insertion of the Hansen-Street intramedullary rod. He used the latter method. The rods come in varying lengths and thicknesses. They may be cut with a hacksaw, but he did not cut the one he used. The rod he used was diamond shaped, about eighteen inches long and less than one-half inch thick. He made an incision at the fracture site and then drove the rod into the marrow of the femur upward until it went through the saddle of the greater trochanter. An incision was made in the skin at the upper end to permit the rod to protrude. After the lower end of the rod was driven up to the point of the fracture, it was then driven downward into the marrow of the part of the femur below the fracture. Good medical practice requires that it be driven down to the extent 'that you don't have the end of the rod sticking up more than an inch and a half' above the saddle of the greater trochanter. It is not accepted medical practice to have the rod stick up two to three inches. The top end of the rod is anchored to the greater trochanter by use of an appropriate anchoring plate, and a cap is screwed on the top end of the rod. If you make the rod too long there will be irritation underneath the skin where the upper end of the rod sticks out of the saddle of the greater trochanter. If it sticks out three inches you will get more irritation and will definitely get a bursitis which will become inflamed, redden and eventually burst as in this case. Near the end of his testimony the defendant said: 'Looking at another x-ray, ² the rod is sticking up out of the saddle of the trochanter. You can see the edge of the bone with the saddle. In the x-ray the rod hides a portion of the saddle. The top part of the rod is called the cap. It should not stick up a couple of inches. I do not believe that it sticks up more than a couple of inches.'

Testimony by the plaintiff and by her mother about alleged admissions made by the defendant play an important role in this case and in the exceptions before us. During the course of her direct testimony the plaintiff said that while she was in the hospital between August 17 and 26, 1964, for treatment of her infected and draining hip she asked the defendant what was causing the infection. She said he answered 'that the rod was two or three inches up out of my--the head of my femur, the bone, and every time I walked, the metal would be rubbing back and forth and causing the irritation in the infection.' On cross-examination she was asked what the defendant had said about the rod on that occasion. She answered that he had said 'that the rod was two or three inches too long up out of my hip.' It was then brought out that in a deposition given two years earlier the plaintiff had not used the words 'the rod was too long' in describing that conversation. At this point in the trial a colloquy occurred over the question whether the plaintiff had previously used such words in her testimony, and in excluding a question in which counsel for the plaintiff assumed the plaintiff had testified that the defendant had made such a statement, the judge excluded it and told counsel, 'That merits rebuke.' This unfortunately occurred in the presence of the jury. This same dispute over whether the plaintiff had so testified came to the surface again when counsel for the plaintiff so argued to the jury, and the judge stopped him and told the jury that the plaintiff had not so testified.

The plaintiff's mother who is a registered nurse testified that on August 8, 1964, she had a conversation with the defendant about the infection in her daughter's hip, and that he said: 'that the infection, the irritation was caused by the rod in her bone--it was about two or three inches too long for th femur, and it rubbed every time she walked, and broke down the tissue, and subsequently the infection entered where the tissue broke down.' The mother had given a deposition more than a year before she testified at the trial. Some questions and answers were read from that deposition relating to her conversation with the...