Sprinkle v. Lemley

• Decision Date: 25 May 1966
• Citation: 243 Or. 521,414 P.2d 797
• Parties: Cherol Lou SPRINKLE, by and through her guardian ad Litem, Donald Sprinkle, Respondent, v. Dr. Cleatis D. LEMLEY, Dr. Paul T. Rutter and Dr. Paul T. Rutter, dba Medford Osteopathic Clinic, and Medford Osteopathic Hospital, Inc., an Oregon corporation, and Medford Osteopathic Hospital, dba Crater Osteopathic Hospital, Appellants.
• Court: Oregon Supreme Court

Page 797

414 P.2d 797

243 Or. 521

Cherol Lou SPRINKLE, by and through her guardian ad Litem Donald Sprinkle, Respondent, v. Dr. Cleatis D. LEMLEY, Dr. Paul T. Rutter and Dr. Paul T Rutter, dba Medford Osteopathic Clinic, and Medford Osteopathic Hospital, Inc., an Oregon corporation, and Medford Osteopathic Hospital, dba Crater Osteopathic Hospital, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 4, 1966.

Decided May 25, 1966.

Hugh B. Collins, Medford, and Bruce Spaulding, Portland, argued the cause for appellants. With Mr. Collins on the briefs for appellant Rutter was E. K. Oppenheimer, Portland. On the briefs for appellant Lemley were Mautz, Souther, Spaulding, Kinsey & Williamson and James F. Spiekerman, Portland.

Bernard P. Kelly, Medford, argued the cause for respondent. On the brief were Kelly, Grant & Cooney, Medford.

Before McALLISTER, C.J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.

DENECKE, Justice.

When the plaintiff was three years old she suffered a comminuted fracture of her upper left leg. She was treated by the defendants. She alleges that their treatment was negligent and that she was injured thereby. The jury awarded plaintiff damages and the defendants appeal.

The plaintiff, Cherol, was injured on June twenty-eighth and brought to a hospital. The defendant Dr. Lemley was the Sprinkle family physician. He is an osteopathic physician engaging in general practice. He called in the defendant Dr. Rutter, an osteopathic surgeon specializing in general surgery. Both defendants treated Cherol. Cherol was placed in casts encircling both legs and extending the full length of the legs. She was then placed in traction with her legs extending straight up in the air approximately at a 90 degree angle to her body. On July fifth she was taken home, but the casts were left on and she was placed in the same kind of traction.

The casts were removed on July twenty-sixth and sores were observed. Shortly thereafter a foot drop was noticed. In the middle of September Dr. Lemley called in an orthopedic surgeon because Cherol had 'a fairly ankylosed joint in the left foot.' In April of the next year the orthopedist performed surgery to correct the defomity in the left foot.

The diagnosis by the orthopedist was 'Volkmann's ischemic contracture,' which 'is a process that goes on in the muscles of the leg below the knee due to a deprivation of someon's blood supply so that the muscles undergo scarring and degeneration.'

The defendants contend the trial court erred in failing to sustain their demurrer, which was upon the ground that the complaint failed to state a cause of action and in failing to strike certain specifications of negligence. Defendants contend that the complaint failed to allege facts from which a duty to act would arise and failed to allege that a breach of such duty was a cause of plaintiff's injury.

The complaint alleged that the defendants and the plaintiff were in a doctorpatient relationship. The complaint alleged: '* * * That defendants in the course of such employment were negligent as hereinafter alleged * * *. (Then the specific charges of negligence were alleged.)' As examples of such specific charges and defendants' objections thereto, the following specifications are quoted: 'Defendants maintained plaintiff's legs in said full length legs casts to each leg while maintaining plaintiff in a position on her back whereby her legs were elevated at a 90 degree angle to the rest of her body, thus further impairing the circulation in both of said legs and especially the injured leg'; and 'They failed to properly pad said casts.'

Defendants contend this is not sufficient. They assert: 'Matters of medical practice, as special customs or usages in a particular profession, must be specially pleaded to define the defendant's duty.' They contend that more specificity is necessary in pleading negligence in a malpractice case than in other kinds of negligence cases.

This same contention was made in Orendino v. Clarke, 240 Or. 518, 519, 402 P.2d 527 (1965). We there stated: 'A pleading sufficiently states a cause of action for malpractice if it advises the defendant that his patient claims that the doctor negligently examined and treated the patient, and alleges sufficient facts to show the particulars in which the examination and treatment, under the circumstances, were negligent.'

The same pleading principle is correct as applied to the pleading of causation. Plaintiff's complaint alleged: 'That as a direct and proximate result of the negligence of defendants as previously alleged, plaintiff developed an ischemic contracture * * *.' This is sufficient.

The trial court was correct in overruling the demurrer and denying the motions to strike.

The defendants next urge that there is no evidence that any act or omission on the defendants' part was the cause of plaintiff's injuries. This was brought to the trial court's attention by a motion for a directed verdict and a motion to withdraw from the jury each specification of negligence.

There was medical opinion testimony that the alleged negligence of the defendants caused plaintiff's injuries. For example, the examination of Dr. Hald was as follows:

'Q Now, Doctor, do you have an opinion as to whether or not there is any causal connection between the practice which I designated in my hypothetical question and which you have just referred to in your testimony and the ischemic contracture which was diagnosed?

'A I do.

'Q And what is that opinion?

'A I believe that the application of the cast made it impossible to detect the onset of any ischemic contracture, and without the detection, prevention could not take place, and therefore, because the casts were applied, unpadded on a recently injured leg, in which knowledge of the swelling that would take place in the future hours after application of the cast was not available, that the constrictive action of the cast produced sufficient disturbance to the leg and its components so that the end result was that which we call ischemic contracture.'

On cross-examination the witness admitted he was not able to state unequivocally that the charged negligence was the cause, but he did not change his opinion that it was probably the cause. Likewise, on cross- examination the same physician admitted uncertainty as to just where on the leg the circulation was impaired by the cast and traction. While this may have weakened his testimony on causation, it did not destroy it.

Defendants raised the medical causation issue in another manner by requesting instructions to withdraw from the jury the various items of claimed injuries. We hold the trial court was correct in refusing to give such requested instructions. In advancing these particular assignments of error the defendants made the additional argument that a tight cast does not cause ischemic contracture and supports this contention by quoting the testimony of physicians called as witnesses by plaintiff that '* * * (pressure sores) * * * (have) nothing at all to do with the fact that an ischemic contracture developed.'

The weakness in defendants' argument is that cast pressure can exist without being evidenced by pressure sores. The testimony was that too tight a cast in the upper leg will not be evidenced by pressure sores. Witnesses testified that the bony prominences found in the lower leg cause the existence of cast pressure to be exhibited by sores on the skin, whereas this is less likely on the upper leg where there is more soft tissue.

There was evidence from which the jury could have found that the casts were too tight and this in combination with other circumstances caused plaintiff's injuries.

The following instruction on the respective liabilities of the defendants was given:

'You are instructed that physicians who are employed together, who diagnose and treat the case together, without withdrawal by or discharge of either, are both responsible if the treatment is negligent. I instruct you that if you find that defendants were engaged independently to treat the plaintiff, then neither may be liable to the plaintiff for any act, omission or decision or for the negligence or lack of skill of the other. Physicians who are engaged to treat the same patient may make such division of service as in their judgment circumstances may require and in such case each in serving with the other is held answerable for his own conduct as well as for the wrongful acts or omissions, if any, of the other which he observes and lets go on without objection or which in the exercise of reasonable diligence under the circumstances he should have observed, but beyond this his...