Riley v. Layton

• Decision Date: 05 March 1964
• Docket Number: No. 7347.,7347.
• Citation: Riley v. Layton, 329 F.2d 53 (10th Cir. 1964)
• Parties: Richard R. RILEY, Joseph Sanella and George R. Aiken, Appellants, v. Arla Joan LAYTON, an infant, by her guardian ad litem, Arnold L. Layton, and Arnold L. Layton, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

329 F.2d 53 (1964)

Richard R. RILEY, Joseph Sanella and George R. Aiken, Appellants, v. Arla Joan LAYTON, an infant, by her guardian ad litem, Arnold L. Layton, and Arnold L. Layton, Appellees.

No. 7347.

United States Court of Appeals Tenth Circuit.

March 5, 1964.

Rex J. Hanson, Salt Lake City, Utah (Ernest F. Baldwin, Jr., Salt Lake City, Utah, on the brief), for appellants.

Harriet Ross, San Francisco, Cal. (Melvin M. Belli, San Francisco, Cal., and Brigham E. Roberts, Salt Lake City, Utah, on the brief), for appellees.

Before MURRAH, Chief Judge, HILL, Circuit Judge, and KERR, District Judge.

HILL, Circuit Judge.

The appeal is from a judgment rendered in a diversity suit upon a jury verdict in favor of plaintiff-appellees awarding them damages in the amount of $78,745.00 for malpractice on the part of defendant-appellants.

On Saturday, September 24, 1960, Arla Joan Layton, who was nine years old at the time, fell from a tree and fractured both bones in each of her forearms. Her father, Arnold L. Layton, took her to the Kane County Hospital at Kanab, Utah, which is owned and operated by the three appellants as a partnership clinic and hospital. She arrived at the hospital at about 5:00 P.M. and, shortly after her admittance, the appellant, Dr. Richard R. Riley, gave her emergency treatment and then proceeded to reduce the fractures. The child was anesthetized during the manipulation and setting which was completed at about 8:30 P.M. Thereafter, Dr. Riley applied a circular plaster cast with padding and a stockinette to each arm.

The child's mother remained at the hospital during that night and neither Dr. Riley nor either of his associates saw the patient until the following day at about 10:30 A.M., when Dr. Riley came to the hospital. At this time she was suffering pain and that condition continued through the day. Beginning at about 5:00 P.M. that day, and continuing throughout the second night, drugs were administered to relieve the pain. At about 12:30 A.M. on Monday morning and without seeing the patient, the appellant, Dr. George Aiken, by telephone directed the administration of more drugs to kill or relieve the pain. Mrs. Layton testified that when she saw the child on Monday morning the right hand was swollen considerably more than the night before and looked pale. When Mrs. Layton asked Dr. Riley about the swelling he replied that it would swell a lot more because of the padding he had placed around the wrist. Ultimately, the cast was removed but there is a conflict in the evidence as to when it was cut from top to bottom. Dr. Riley testified he cut it from top to bottom on Monday. The patient's mother testified he only partially cut the cast that day. In any event, the girl continued to suffer pain throughout the day on Monday and her fingers and hand were swollen and discolored. According to Mrs. Layton, the child's hand was so swollen that the fingers "* * * looked like they were sort of in a spasm, drawn and in different directions." The pain continued throughout the third night.

On Tuesday at 12:30 A.M. the appellant, Dr. Sanella, was summoned to the hospital to see the patient. He noted that the fingers of her right hand were blue and found her "* * * crying and difficult to manage * * *." He had ordered another kind of a drug administered to her to alleviate the pain before he saw her. The nurses' bedside notes reveal the following entry on Tuesday at 11:30 A.M.: "Rt. arm seems very swollen, cast appears tight, fingers cold." Dr. Riley saw the child that day at 7:00 A.M. and again at 3:00 P.M., at which time he propped the cast apart with wooden sticks. The pain continued, blisters appeared on the arm and the discoloration of the fingers grew more pronounced through Tuesday and Wednesday. On Wednesday evening Dr. Riley arranged for the child's admission into St. Marks Hospital in Salt Lake City, and she was admitted there on Thursday morning, September 29, at 2:30 A.M. Upon her arrival at St. Marks Hospital, Dr. Pemberton examined her and his findings and opinion as shown in the consultation record are: "Severe vascular impairment of right forearm from elbow down to fingertips with paralysis, anesthesia and cyanosis, probably of 3 days duration. There is evidence of some further process up to the shoulder with swelling and pain." Hospital records dated the same date and signed by Dr. Greene recite: "Imp: Severe swelling due to casting following comp. fx. of wrist — at present this isn't a Volkmann's." On that same date both Dr. Chambers and Dr. Pemberton stated in the hospital records that the prognosis was very poor for survival of the right hand. Eventually the child's right forearm at the junction of the proximal and middle thirds of the forearm was amputated.

Dr. Robert Major, a practicing physician in San Francisco, was called as an expert witness on behalf of appellees and was allowed to testify, over appellants' objections, that in his opinion: It would generally be considered poor practice to put a circular cast on a fractured arm if there was serious concern about the circulatory condition of the forearm at the time it was set; it was "classic practice" to split a circular cast that was put on immediately after an injury; the better practice would be to use anterior and posterior splints; the amputation of the child's forearm was necessitated by the application of too tight a cast; and the cast should have been removed on Monday, September 26. His testimony was: "I think it would have been preventable on several occasions. If anterior and posterior plaster splints had been used to immobilize the fracture, I think it would not have occurred. I think if the cast had been split — and this is pure opinion — about 12:30 or 1:00 on Monday morning, that it probably would not have occurred." "Split and opened widely." He further testified in substance that it is very unusual to have vascular spasm in a child as a result of a fracture. The doctor also testified: "The cause of the swelling in the arm and shoulder and on to the chest was obstruction in the blood vessels of the arm, which begin at the area of the forearm, and the cause or the fact that the clot stopped the flow of blood, the clot gradually built its way up the veins of the arm into the shoulder until there was no drainage from the veins all the way up to the shoulder, and the blood which could not return to the heart from the area of the obstruction wept fluid into the tissues causing the swelling, because the veins going to that area were obstructed — I mean coming from that area were obstructed and could not carry that out." The expert medical testimony also clearly shows the most common cause of gangrene after treatment of a fracture is that the cast is too tight and pain is an important indication of a cast being too tight.

The first point upon which appellants rely to secure a reversal of the judgment relates to the sufficiency of the evidence. The appellants contend that the lower court erred in admitting the expert medical testimony of Dr. Major, over their objection, because he did not possess the necessary and required qualifications to make him an expert witness inasmuch as he was not familiar with the standard of medical care prevailing in the community of Kanab, Utah. They assert that when the testimony of Dr. Major is disregarded, as it must be, there is insufficient evidence to support the verdict and judgment.

It is, of course, the rule that "* * * proof of malpractice, in effect, requires two evidentiary steps: evidence as to the recognized standard of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment of plaintiff. * * *"¹ Under the law of the State of Utah, a physician or surgeon is not an insurer of a successful result and therefore no presumption of negligence is to be indulged from the fact of an adverse result of his treatment or operation.² In order to recover in a malpractice case in Utah, the plaintiff must show that in treating him the doctor did not exercise such care and diligence as is ordinarily exercised by skilled physicians or surgeons doing the same type of work in the vicinity, and that the want or failure of care was the proximate cause of the alleged injury.³ The first requirement or step, i. e., the standard of ordinary care and skill required of a doctor in the community in which he serves, must necessarily be established by expert medical testimony.⁴ And, in the absence of the establishment of such a standard by expert medical testimony and some evidence showing a deviation from this standard, the plaintiff has not made out a case to be submitted to the jury.⁵

In view of the Utah law, we must determine from the record whether the trial court erred in holding that Dr. Major possessed the necessary qualifications of an expert medical witness. In making such a determination, we are guided by the universal rule that a trial judge has broad discretion in determining whether a particular witness possesses the necessary qualifications and is competent to testify as an expert on the point at issue in the case. The trial judge's determination of that question is ordinarily conclusive and should not be disturbed except in extreme cases where he has clearly erred or where it is manifest that there has been an abuse of discretion.⁶ Our function is to determine whether, in the exercise of his discretion, the trial judge applied the correct legal standards.⁷

The record in this case discloses that Dr. Major, a graduate of Baylor University School of Medicine, has been engaged in the general practice of medicine in San Francisco for the past 6 ½ years and, prior to that time, practiced with his two brothers in a small Texas...