Smith v. Curran

• Decision Date: 07 July 1970
• Docket Number: No. 23444,23444
• Citation: 28 Colo.App. 358,472 P.2d 769
• Parties: Phillip I. SMITH, Plaintiff in Error, v. Thomas E. CURRAN, Defendant in Error. . I
• Court: Colorado Court of Appeals

Page 769

472 P.2d 769

28 Colo.App. 358

Phillip I. SMITH, Plaintiff in Error, v. Thomas E. CURRAN, Defendant in Error.

No. 23444.

Colorado Court of Appeals, Div. I.

July 7, 1970.

C. J. Beradini and William R. Humphrey, Denver, for plaintiff in error.

Zarlengo, Mott & Carlin, Denver, for defendant in error.

DWYER, Judge.

This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

The parties appear here in the same order as in the trial court and are referred to as plaintiff and defendant.

Plaintiff's action for malpractice was dismissed on defendant's motion for directed verdict at the close of the evidence offered by plaintiff. The question on appeal is whether or not plaintiff had established a prima facie case against defendant.

Plaintiff suffered a fracture of the knee in a traffic accident. He was taken to Denver General Hospital where he received emergency treatment. Later he was taken to a private hospital where defendant, an orthopedic surgeon, undertook his care and treatment. Upon examination, the injury was diagnosed as a closed and partially dislocated fracture of the left femur with subluxation and fragmentation. A closed reduction of the fracture was performed and a cast applied. A few days later, x-ray examination revealed that the reduction was lost. The surgeon then performed an open surgical procedure in which the bone fragments were brought together with pins and screws and a cast applied. Antibiotics were administered as a preventative measure for six days and then discontinued. Twelve days after the operation, a spot appeared on the cast. The cast was opened and it was observed that the operative area was infected. Cultures were taken and antibiotic therapy was instituted. The following day, upon the basis of the cultures, a diagnosis of staphylococcus was made. Treatment was administered. About two weeks later, x-rays revealed osteomyelitis in the bone joint. The osteomyelitis has severely and permanently damaged plaintiff's leg.

The plaintiff and the defendant were the only witnesses at the trial. Plaintiff testified to what he could recall of the accident and the treatment administered. He also testified concerning the disability he had at the time of the trial. Defendant, on cross examination, testified that the surgery performed was the treatment of choice and that the post operative care was in accordance with proper medical standards. The doctor stated that he did not know the source of the staphylococcus infection and the subsequent osteomyelitis. He also stated that such conditions are recognized complications which sometimes follow surgery even though the surgeon has followed accepted surgical practices.

Plaintiff produced no expert testimony. The record in consequence lacks any evidence that the defendant was in any way negligent in his diagnosis and treatment of plaintiff's injury. In order for plaintiff to establish a prima facie case, it was incumbent upon him to prove by expert testimony that defendant by some act of omission or commission departed from the standard of care required of defendant as a physician. If no standard is established by the testimony of physicians, there is no standard for the determination of the ultimate qustion of the physician's negligence. See McGraw v. Kerr, 23 Colo.App 163, 128 P. 870; Norkett v. Martin, 63 Colo. 220, 165 P. 256; Brown v. Hughes, 94 Colo. 295, 30 P.2d 259.

Plaintiff contends that his evidence was sufficient to establish a prima facie case without expert testimony and cites Farrah v. Patton, 99 Colo. 41, 59 P.2d 76 in support of his position. In that case, an osteopath, in treating the patient, gave the patient's neck such a severe jerk that the patient's spinal cord was damaged and paralysis of some of the body functions resulted. This case is an example of that type of malpractice case where the negligence of the physician is so apparent or the matter under investigation so simple that laymen are equally as able as experts to pass upon it, and expert testimony is not required as part of the prima facie case. This rule is not applicable to the present case because the cause of an infection or its source are matters within the field of medical experts. Uter v. Bone and Joint Clinic, 184 So.2d 304 (La.App.); Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627; Hart v. Fielden, Tex.Civ.App., 295 S.W.2d 911; Kaster v. Woodson, Tex.Civ.App., 123 S.W.2d 981.

Counsel for plaintiff urges that sufficient evidence was presented from which the jury could legitimately infer that the defendant was negligent and therefore the case in chief was not vulnerable to defendant's motion for directed verdict. Specifically, he argues that he...