Seewald v. Gentry

• Decision Date: 23 July 1926
• Parties: GEORGE SEEWALD, RESPONDENT v. W. H. GENTRY, APPELLANT.
• Court: Missouri Court of Appeals

286 S.W. 445

220 Mo.App. 367

GEORGE SEEWALD, RESPONDENT v. W. H. GENTRY, APPELLANT.

Court of Appeals of Missouri, Springfield

July 23, 1926

Appeal from the Circuit Court of Jasper County.--Hon. S.W. Bates Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Howard Gray and Haywood Scott for appellant.

W. N Andrews, W. R. Robertson and A. M. Baird for respondent.

BRADLEY J. Cox, P. J., and Bailey, J., concur.

OPINION

BRADLEY, J.--

This cause is for damages for alleged malpractice by defendant, who is a physician and surgeon. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of $ 1500 and defendant appealed.

Plaintiff alleged that on April 16, 1922, he employed defendant to set and treat his right leg, the bone of which had been broken between the knee and thigh; that defendant tightly bandaged plaintiff's foot and ankle and placed a shoe thereon, and that said shoe was connected by cords to a heavy weight and so arranged that the weight suspended from the foot and ankle and caused the shoe to press with great force against the foot and ankle and draw the same into a strained, rigid and unnatural position; that defendant in the course of treatment carelessly and negligently increased the pressure upon plaintiff's foot and ankle by the use of excessive weights and carelessly and negligently failed to use sufficient and suitable padding on plaintiff's foot and ankle and carelessly and negligently caused the foot and ankle to be under long, excessive and continued pressure and carelessly and negligently failed to examine plaintiff's foot and ankle to determine the effect of said pressure.

Plaintiff further alleged that as a result of the negligence aforesaid a large portion of his foot and ankle was covered with a gangrenous scab which in time sloughed off to the injury of the tendons, leaders, ligaments, tissues, nerves and muscles of the foot and ankle so that "plaintiff has no use of said foot and ankle except in a small portion of same and said foot and ankle have become paralyzed and useless . . . deformed, crooked, misshapen, unsightly and permanently" injured; that defendant was careless and negligent in failing to examine and treat said foot and ankle when requested by plaintiff.

Plaintiff further alleged that by reason of the negligence of defendant as aforesaid he suffered great pain of body and anguish of mind, paid out large sums for medical supplies, nursing and treatment by other physicians, all to his damage, etc.

The answer is in effect a general denial and a plea of the two year Statute of Limitations. A reply put in issue the new matter pleaded in the answer.

Defendant makes 46 separate assignments, but these may be grouped as follows: (1) Failure to give defendant's peremptory direction at the close of the whole case; (2) on the admission of evidence; (3) on the exclusion of evidence; (4) on the alleged prejudicial attitude of the trial judge; (5) on the instructions given, and (6) on the instructions refused.

Plaintiff, a man 59 years old at the time, had his right leg, between the knee and thigh, broken in an automobile collision. Defendant was called and he and his assistant, Dr. Clinton, first gave emergency treatment at the roadside by putting a board splint on the broken leg. Plaintiff was then taken to a hospital in Carthage, Mo., where a thorough examination was made. Plaintiff refused to remain in the hospital and was removed to his home where he was given an anesthetic, the broken bone adjusted and what is called a Hodgens splint with traction and weight applied. The traction was made by the application of wide strips of adhesive tape, one on either side of the broken leg and extending from the point of fracture down beyond the foot where they fastened around a wooden block to which was attached a cord and this cord passed over a pulley. At the end of the cord was attached a bucket in which were the weights. The splint was suspended by supports fastened to the head and foot of the bed. The Hodgens splint, which extended beyond the foot, was so constructed that the leg rested in a trough-like place made of muslin fastened to the metal parts of the splint. The pull that was made by the weights kept the ends of the broken bone in apposition.

Four days after the Hodgens splint was applied a sloughing of the skin appeared under the adhesive tape and also under the calf of the leg. When this sloughing appeared the adhesive tape would not hold and the weights were removed. Then for the next ten days defendant sought to get extension so as to hold the broken bone in apposition by raising the foot of the bed and by changing the angle of suspension of the Hodgens splint. This failed to keep the broken bone in apposition, and then defendant tried bandages below the affected area on the leg, but this also was unsuccessful. Then defendant placed around and over the foot and ankle muslin bandage, and over this a silk sock and over the sock an especially prepared shoe with a tongue. The top of the shoe from the bottom of the lace to the toe was cut away. The shoe had an extra sole that extended the full length, and in this extra sole a hole was made immediately in front of the heel. Through this hole a cord was passed, and this cord extended over a pulley and weights to the extent of forty and three-fourths pounds were attached.

After this shoe arrangement had been on two weeks defendant removed the shoe, but not the sock and bandage, and examined the foot so far as it could be examined without removing the covering. He found some adhesions about the ankle, due, he said, to lack of use of the foot, and these he broke by motion. The shoe was again put on and remained for two weeks longer when the whole apparatus including the splint was discarded. And it was found that the arrangement had held the broken bone in apposition and that the break had healed with good results, but dry gangrene was found to be on the instep of the foot and also just above the heel. The above is a statement of the salient facts appertaining to what defendant did and his manner of treatment from the beginning down to the discovery of dry gangrene on the foot when the splint, shoe and bandage were removed. No complaint is made of the result obtained in reducing the fracture.

Plaintiff went to the jury on the following specifications of negligence, which were submitted in the alternative, to-wit: (1) Failure to use sufficient or suitable padding on the foot or ankle; (2) failure to examine or to detect injury to the foot or ankle; (3) failure to reexamine and treat the dry gangrene when requested; (4) negligently maintaining the pressure when evidence of injury was apparent; (5) failure to relieve the foot and ankle of pressure in time to avoid injury; (6) negligently subjecting the foot and ankle to long, undue or continued pressure; and (7) negligently permitting the foot or ankle to become permanently deformed.

There were three areas of dry gangrene developed. One was just above the calf of the leg; one just above the heel; and one on the instep of the foot. Those on the instep and just above the heel caused the serious trouble and we shall confine our consideration to them. Of the injury, pain and suffering, we think it is sufficient to say that the record shows that plaintiff underwent long and severe suffering and pain, and according to the evidence adduced by him and his witnesses his foot is deformed and practically useless. But however severe his pain and suffering, and however deformed and useless his foot may be he cannot recover unless the defendant breached a duty that he owed plaintiff.

A physician or surgeon undertaking the treatment of a patient is not required to possess or exercise the greatest learning or the highest degree of skill. He is only required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by the members of his profession in good standing and it is his duty to use reasonable care and diligence in the exercise of his skill and the application of his learning and to act according to his best judgment. [30 Cyc. 1570; 21 R. C. L., p. 381, sec. 27; Parkell v. Fitzporter, 301 Mo. 217, l. c. 227, 256 S.W. 239, 29 A. L. R. 1305; Krinard v. Westerman, 279 Mo. 680, 216 S.W. 938; Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280; Pate v. Dumbauld, 298 Mo. 435, 250 S.W. 49; Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172.] Defendant's learned counsel contend that measured by the rule of defendant's legal duty there is no substantial evidence tending to show that he breached that duty. If such is the case then the demurrer should have been granted.

This record is of unusual length. Our careful reading of the abstract of the record, the additional abstract and the original bill of exceptions sent up by our order has convinced us that there is no substantial evidence to support the 4th, 5th, 6th and 7th specifications as have stated them, and we shall not enter upon a discussion of the evidence in order to demonstrate our conclusion respecting these specifications. On the remaining three specifications, the 1st, 2nd and 3rd, as we have stated them, we think the demurrer turns, hence we shall make disposition of these in the order given.

Was the defendant remiss in his duty to use sufficient or suitable padding on plaintiff's foot and ankle? It is of course a well-known rule of law that measured by the demurrer we accept as true all the evidence tending to support plaintiff's case, unless it should appear to be wholly counter to well-known physical laws or contrary to common experience, while defendant's evidence measured by the demurrer is treated as untrue, except, that which perchance may tend to support ...