Radcliffe v. Maddox

Decision Date21 September 1932
Docket Number21819.
Citation165 S.E. 841,45 Ga.App. 676
CourtGeorgia Court of Appeals

Rehearing Denied Oct. 1, 1932.

Syllabus by the Court.

Statute requires physician to exercise care and skill ordinarily employed by profession generally under similar conditions (Civ. Code 1910, § 4427).

Whether physician has exercised required degree of care and skill is fact question for jury (Civ. Code 1910, § 4427).

In malpractice action, evidence authorized recovery on theory that fatal infection resulted from defendant physician's failure to properly cleanse leg when he operated thereon.

Before appellate court will sustain verdict for plaintiff, supported solely by circumstantial evidence, circumstances shown must tend, in appreciable degree, to establish plaintiff's theory.

Instruction authorizing recovery on circumstantial evidence reasonably establishing plaintiff's theory, and preponderating to that theory rather than to any other reasonable hypothesis held not erroneous because not requiring that every other reasonable hypothesis be excluded.

In malpractice action, instruction relating to care required of physician held not prejudicial as creating impression that defendant's negligence authorized recovery, whether or not patient's death proximately resulted therefrom.

In malpractice action, proximate cause instruction held proper as against contention that it authorized recovery if physician could reasonably have anticipated fatal infection regardless of whether infection resulted from physician's negligence.

Instruction on measure of damages for wrongful death held not erroneous (Civ. Code 1910, § 4425, as amended by Laws 1924 p. 61, § 2).

$6,000 held not excessive for wrongful death of man, 21 healthy, and earning $1.50 per day.

The evidence, while in sharp conflict, authorized the finding of the jury in favor of the plaintiff; the charge of the court was not erroneous for any reason assigned, and the judgment overruling the motion for a new trial must be affirmed.

Error from City Court of Floyd County; John W. Bale, Judge.

Suit by Mrs. J. Maddox against E. J. Radcliffe. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.


Instruction authorizing recovery on circumstantial evidence reasonably establishing plaintiff's theory, and preponderating to that theory rather than to any other reasonable hypothesis held not erroneous because not requiring that every other reasonable hypothesis be excluded.

This was a suit for damages on account of the death of the plaintiff's husband, alleged to have resulted from negligence on the part of the defendant, a practicing physician and surgeon, in performing an operation for the setting of a broken limb. The petition alleged that the decedent, Johnnie Maddox, sustained a broken limb when a tractor which he was driving turned over, Maddox being pinned beneath the machine; that he was carried to a hospital in Rome for treatment, and the defendant set the broken limb and incased it in a plaster cast, and in so doing left on the limb, and in and among the abrasions and wounds on the limb, grease and oil which ran from the tractor when it was overturned, and dirt and grit which had gotten on the limb in the accident. The negligence charged against the defendant is in failing to properly cleanse the limb before incasing it in the plaster cast. It was alleged that infection resulted from such negligence, and that the death of Maddox was brought about by the infection.

On the trial it appeared that, after the injury to Maddox, his broken leg was set by the defendant at the Harbin Hospital in Rome. About ten days subsequent to the first operation for setting the leg, the defendant performed another operation, made an incision in the broken limb, and tied the broken bones together with wire, and again placed the limb in a plaster cast. A few weeks thereafter the patient was discharged from the hospital and returned to his home in Alabama. He remained at home about two weeks, and then returned to the hospital for further treatment, and remained there for several weeks. He was again discharged from the hospital and returned home, but his condition grew worse and he was carried to a hospital in Birmingham, where, after a period of treatment, his limb was amputated. He was again sent home, but remained only a short time and returned to the Birmingham hospital, where he died. According to the testimony of the physicians who attended him in Birmingham, the immediate cause of his death was a kidney condition which resulted from infection, and this infection came directly from the bone in the injured limb.

The testimony as to the circumstances under which the defendant performed the original operation for setting the broken limb was in sharp conflict. The defendant and another physician who assisted in the operation, and the nurse who was present, all testified that the broken limb was thoroughly cleansed before anything else was done to it. It appeared further from the testimony of these witnesses that the broken limb had been slightly burned by hot oil from the tractor which flowed over it when the machine overturned, and that, after it was thoroughly cleansed, vaseline gauze was applied to the skin to soothe the burns. These witnesses testified also that, when the second operation was performed, about ten days after the first, on which occasion an incision was made in the broken limb, it was again thoroughly cleansed by the use of soap and water and antiseptic solutions. The father of the decedent testified that he saw the decedent's leg just prior to the second operation; "I saw the leg then, I was standing right present then, standing behind the boy, talking to him. That was the first time I had seen my son's leg, the actual leg itself, since I carried him to the hospital in June. There was motor oil and grease all over it, and there was black places where the fracture was, it looked bloodshot, and I asked the doctor what caused that, and he said he did that with his thumbs, trying to place the bones, and I asked him about the leg being dirty and greasy, *** and he said that did not amount to anything, it was on the outside and would not amount to anything, and I wasn't no doctor. I didn't know, you know. They taken him then down to the operating room and I didn't go in the operating room with him, and so they opened up his leg and wired it. He said he opened it and wired the bones together so it could not get away, that the leg was in this shape, the bone was held so it couldn't get away. He opened a place through the flesh on the side, a gash something about that long, I suppose, along down there."

Another physician, Dr. Gramling, who attended the decedent after he had made the second trip to the Rome hospital, in November, after the injury in June, testified that he made an examination of the broken limb at that time, and removed the cast from it. He testified as to his findings as follows: "I found him (the decedent) suffering from a broken femur, and an infection, there was a general infection of the whole right leg from the hip, above the hip bone, all the way down. When I saw him for the first time I had to remove a part of the plaster paris cast to see his leg. The sort of foreign substance I saw on his limb, around and above and below the wound, in my judgment, was a kind of thick burnt cylinder oil, it was a dark looking oil of some kind, on his limb. As a doctor I am thoroughly familiar with what pus is, that comes from a wound. I saw that too. I saw some sort of oil there. Pus was in there, it was all down his limb from his hip where the plaster was, on down. I washed it all off around the wound, the black grease and stuff, and cleaned it up the best I could. I removed the cast from around his limb and around his body, and I placed it in a brace that extended down under the back part of the ankle down there. I cleansed the wound and removed all this cylinder oil and grease and stuff like that from the wound. I got a double handful of it, I am satisfied that much, looked to me like a double handful, and it looked to me like it was black cylinder oil; it was greasy. I know the difference between pus and grease. The primary proximate cause of the condition of his leg, as I found in his leg, resulted from infection. Grease, such grease as is used in automobiles, tractors, etc., is a substance which would produce infection; I think so. It is not sterile. I say that would produce it." Dr. Gramling further testified: "From my observation of the case, during that nine days when I dressed it four or five times, I would say that the trouble from which his leg was suffering was infection, so far as I could observe, on down during that period, no other source of infection except this large quantity of grease. I didn't see any. *** The pus I have described could have produced his death."

On cross-examination Dr. Gramling testified, with reference to his first examination of the decedent, as follows: "I know it was tractor oil on him, I saw it, it was dark and greasy. It wasn't mixed, it was laying all over the whole limb. I used a pint of alcohol on it. I washed it off the best I could. I shaved it off the best I could and then washed it, and then sterilized the wound the best I could with my mercurochrome."

Dr Craven, who treated the decedent on his first trip home from the Rome hospital, testified that he examined the leg through a "window" which had been cut into the plaster cast, and that it was sterile and clean, and he found and saw no evidences of any foreign substance having been left on the limb. Several lay witnesses, who were present when Dr. Craven made this...

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