Schroeder v. Adkins

• Decision Date: 13 April 1965
• Docket Number: No. 12319,12319
• Court: West Virginia Supreme Court
• Parties: Dorothy Jeanne SCHROEDER v. Lonnie Walter ADKINS, Jr.

Page 352

141 S.E.2d 352

149 W.Va. 400

Dorothy Jeanne SCHROEDER v. Lonnie Walter ADKINS, Jr.

No. 12319.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1965.

Decided April 13, 1965.

Syllabus by the Court

1. In an action for damages against a chiropodist, for negligence and want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it results in injury to the plaintiff.

2. A chiropodist is not required to exercise the highest degree of skill and diligence possible in the treatment of an injury or disease, unless he has by special contract agreed to do so. In the absence of such special contract, he is required to exercise only such reasonable and ordinary skill and diligence as are ordinarily exercised by the average of the members of the profession in good standing in similar localities and in the same general line of practice, regard being had to the state of medical science at the time.

3. A chiropodist does not warrant or insure that his treatment will be successful in the absence of a special contract to that effect.

4. Failure of a chiropodist to effect a cure does not alone establish or raise a presumption of negligence or want of skill upon his part.

5. 'It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.' Point 2, syllabus, Roberts v. Gale, W.Va. .

6. 'A hypothetical question which assumes facts unsupported by the evidence should not be submitted to an expert witness.' Syllabus, Blair v. Clark Coal and Coke Company, 107 W.Va. 507 .

Huddleston & Bolen, William C. Beatty, Huntington, for appellant.

Greene, Morgan & Ketchum, Huntington, for appellee.

HAYMOND, Judge.

In this malpractice action, instituted in the Circuit Court of Cabell County, West Virginia, on March 16, 1962, the plaintiff, Dorothy Jeanne Schroeder, a single woman about forty years of age when the case was tried, seeks a recovery of damages from the defendant, Lonnie Walter Adkins, Jr., a duly licensed chiropodist, for injuries caused by the alleged negligence of the defendant in treating her feet for the purpose of removing certain elevations or bumps from each of her little toes.

Upon the trial of the case in October 1962 the defendant moved the court at the conclusion of the evidence in behalf of the plaintiff and again at the conclusion of all the evidence to strike the evidence offered by the plaintiff and to direct a verdict for the defendant. Each motion was overruled and, the case having been submitted to the jury, the jury returned a verdict for the plaintiff in the amount of $10,000.00. On October 15, 1962 the circuit court rendered judgment for the amount of the verdict, with interest and costs, and by order entered May 13, 1963 refused to grant the motion of the defendant to set aside the foregoing judgment and enter judgment for the defendant notwithstanding the verdict. From that judgment this Court granted this appeal on the application of the defendant.

On May 16, 1961, the plaintiff, being unable to obtain an appointment with a chiropodist who had regularly treated her for a considerable period at intervals of approximately six to eight months for the removal of callous from the bottom of her feet, at the suggestion of a local lawyer friend, made an appointment and went to the office of the defendant for the purpose of having callous removed from her feet.

While the defendant was engaged in removing the callous and while the plaintiff was looking at her bare feet she told the defendant that she wished she did not have two little bumps on the side of each little toe. At that time, according to her testimony, though she had the bumps on the top of each little toe, which she said were like a small piece of gristle, the bumps had never been treated and had never caused her any trouble, or pain or suffering, and she had never had any corns on her feet, and had never been treated for corns or any condition of her feet except the periodic paring treatment in the removal of callous from the soles of her feet.

The plaintiff testified that when she told the defendant that she wished she did not have the bumps on each foot he asked her to let him remove them and told her that he removed such bumps as often as fifteen or twenty five times each week; that if she did not have the bumps removed she would likely begin to have corns; that she then asked him if the removal would harm her in any way and he replied that it was so insignificant that it could not hurt her at all and that she would be all right. She also testified that he showed her a book which contained a picture and explained the operation for the removal of the bumps. She became interested in the suggested treatment and spoke to her regular chiropodist about it and talked to the defendant again about it a day or two before July 19, 1961, at which time she again came to his office, discussed the matter with him, and made an appointment for July 26, 1961. At that time he treated her in the operating room of his office.

Her version was that he washed her feet, put red medicine on them, inserted a needle which benumbed each toe, and then performed surgery on the little toe on the left foot during which he cut across the toe in two places and removed a small substance which he told her was a tendon. When he began to operate on the little toe on the right foot she told him she was fainting and he then said that he would not finish the surgery at that time but would do so later. He placed a bandage on the left foot which prevented her from wearing her regular shoe.

She stated that he did not tell her that she should not take part in her usual television program; and she went to the studio that evening for that purpose. When she returned to her home after the operation which was started about ten o'clock that morning, she was weak and fainted and she experienced constant soreness, pain and a burning sensation. He visited her at her home several times and removed stitches and changed the bandages. He informed her that she was doing well and she had no idea that anything was wrong.

She returned to his office on August 16, 1961, at which time he operated on the little toe on her right foot in the same way he had operated on the little toe on her left foot. After these operations she discovered that her toes dropped so that she felt that she was walking on her toe nail. He called at her home two or three times after the second operation. When she complained about the pain she experienced and the dropping of her toe he told her that the condition would disappear if she massaged and washed her left foot in hot water.

This she did but the condition did not disappear. She wished him to complete his treatment and to operate again if necessary to improve her condition and she called his home on Sunday before Labor Day for an appointment. His wife answered the telephone call and told the plaintiff that the defendant was away. Later the same day she called again and talked to defendant's wife, who told the plaintiff that the defendant told her to tell the plaintiff that he could not see her until Friday of that week. After that the plaintiff made no further calls and did not see or consult the defendant and he did not call her again. She then consulted another chiropodist who treated her for a short time and bandaged her feet.

Being unable to wear her shoe and experiencing pain, she consulted her family physician and also a local orthopedic surgeon who recommended surgery. She then called upon a doctor in Cincinnati during the first or second week in September 1961 who recommended a specialist, an orthopedic surgeon, Dr. Schweitzer, who on September 22 examined her toes, both of which had dropped, and recommended surgery, and on November 2, 1961, he performed a major surgical operation on both little toes at a hospital in that city. In the operation which he performed he removed in its entirety the bone nearest the foot in each of her little toes. She was required to remain in the hospital four days and as a result of this surgery her little toes are straight but shortened and she has less than full tendon control of her little toes and this condition is permanent. The purpose in performing the operation was to relieve the pain and discomfort of the plaintiff and to enable her to wear ordinary shoes and to walk comfortably and apparently this result has been accomplished.

Dr. Schweitzer whose testimony was admitted in the form of a deposition stated in response to an objectionable hypothetical question based on the history given him by the plaintiff that she had no trouble with her little toes, or no discomfort, or injury or pain or infection, but which contained no reference to the bumps on her toes, that the operation performed by the defendant was the proximate cause of the condition of her feet when the witness operated on her on November 2, 1961. He also stated that the plaintiff had a hammertoe deformity on each of her little toes, which he characterized as practically synonymous with contractures of those toes when she came to him for treatment.

The parents of the plaintiff, with whom she makes her home, testified that before she was treated by the defendant her feet were normal and caused her no trouble or pain and that she did not have corns on her toes but that she did have little bumps on the top of her little toes and that there were no defects in her feet; that her little toes did not turn under; and that she had no difficulty in putting on her shoe or in walking until after the defendant operated on her little toes. Two of her friends testified to the same effect.

A local chiropodist, a witness in behalf of the plaintiff, examined her in December 1961, after the operations had been performed by the defendant and by Dr. Schweitzer. He treated her after December 1961 and...