Stacy v. Williams

Citation253 Ky. 353,69 S.W.2d 697
PartiesSTACY et al. v. WILLIAMS.
Decision Date13 March 1934
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Bell County.

Action by Ira Williams against Dr. C. B. Stacy and another. Judgment for plaintiff, and defendants appeal.

Reversed with directions.

Low &amp Bryant, W. L. Hammond, and N. R. Patterson, all of Pineville and L. R. Curtis, of Louisville, for appellants.

F. D. Sampson and J. M. Robsion, both of Barbourville, for appellee.

RICHARDSON Justice.

Dr. Stacy resides at Pineville, Bell county, Ky. and engages in the general practice of medicine and surgery. The Stacy-Chappell Hospital is privately owned, and engages in the business of receiving patients and furnishing them hospitalization. Ira Williams resides at "Four Miles," Bell county, and, at a salary of $144 a month, engages in the work of a fireman of the Kentucky Utilities Company.

On June 1, 1930, Williams was run into by an automobile, resulting in the breaking of his right leg, four inches above the knee. He was carried at once to the Stacy-Chappell Hospital where he procured the services of Dr. Stacy. He remained at the hospital 83 days, when he was removed to a hospital at Middlesboro, Ky. The services of Dr. Stacy and the Stacy-Chappell Hospital were thereafter discontinued.

Williams brought this action to recover $25,000 damages of Dr. Stacy and the Stacy-Chappell Hospital, on the charge of malpractice. On a trial before a jury he was awarded $5,500.

Williams, in the practice of the case, and the court, in his instructions to the jury, considered the petition as containing a charge of general negligence. The correctness of this theory of the case must be determined by the allegations of the petition. A careful examination of it convinces us the practice of the case and the instructions of the court in this respect were not authorized by its allegations. To make accuracy assured, we state his cause of action in the language of the petition: "These defendants of their gross negligence and carelessness failed and neglected to properly diagnose said break or injury, and in their further negligence and carelessness and as a direct result of their unskillful attempt to readjust and reset and co-apt said bones, the defendant, said C. B. Stacy, in whom it trusted to dress, treat and adjust said broken bone, wrongfully, improperly and unskillfully made an incision into his leg and made it necessary at a later date to cut off and remove a great portion from the said broken bone and then of their further gross and careless, unskillful and improper, conduct, attempted to place and did place a silver plate across said broken joint and in his femur and attempted and fastened same by means of screws, and then bound up the same and left his leg improperly secured until said screws came out of said plate and bound and imbedded themselves within the flesh of his leg and remained there for many days. *** The defendants injected or caused to be deposited within said broken or injured area foreign substance in addition to said plate and screws, *** and thereby caused gangrene or pus to set up in said injured parts; *** that after he left said hospital he was compelled on account of the negligent way and manner treated and left by this defendant, to undergo a second operation. *** No proper diagnosis was made of said broken femur when he was first received in said hospital, or at all, by these defendants and same was grossly neglected for a period of some 16 or 17 days. No proper precaution or care was used in treating said broken limb, after which the defendant wrongfully, improperly and negligently made said open incision, thereby causing an infection of said limb. *** As a result of said wrongs and injuries he not only suffered great mental and physical pains, and will continue to suffer, so long as he lives, but he had to expend for additional doctors' bills, etc."

It is elemental a plaintiff must allege that which he wishes to prove, and his pleading and proof must agree. "Negligence may be alleged generally. Illinois Cent. R. Co. v. Cash's Adm'x, 221 Ky. 655, 299 S.W. 590. Under such an allegation of negligence the plaintiff may prove any act of negligence of the defendant (Monroe v. Standard Sanitary Mfg. Co., 141 Ky. 549, 133 S.W. 214), but, where he alleges special acts of negligence [ L. & N. R. Co. v. Kirby, 173 Ky. 399, 191 S.W. 113; L. & N. R. Co. v. Mitchell,

162 Ky. 253, 172 S.W. 527; C. & O. R. R. Co. v. Cooper, 168 Ky. 137, 181 S.W. 933; Pullman Co. v. Pulliam, 187 Ky. 213, 218 S.W. 1005; L. & N. R. Co. v. Morgan's Adm'r, 225 Ky. 447, 9 S.W.2d 212; Park Circuit & Realty Co. v. Coulter, 233 Ky. 1, 24 S.W.2d 942], or where the petition contains a charge of general negligence, coupled with the specific acts of negligence, he is confined to the specific acts (L. & N. R. Co. v. Horton, 187 Ky. 617, 219 S.W. 1084)." See American Sav. Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S.W.2d 115, 119.

The petition is not susceptible of the construction it contains a charge that in administering the anesthetic, the examination of his leg with the fluoroscope, the placing in apposition the parts of the broken bone and in the use of the "Thomas Splint and Buck's Extension," the same were done negligently, or not at all. Without an allegation in the petition charging same were done negligently, or not done at all, it was not proper to admit evidence as to this subject, nor to instruct the jury so as to authorize it to assess damages therefor.

According to its own language, the petition pitches Williams' cause of action on the failure to make a diagnosis; negligence in "an unsuccessful attempt to readjust, reset and co-apt" the bone of his leg; "unsuccessfully making an incision into his leg," and thereafter negligently caring for and treating it. However, we shall consider and dispose of the case on the theory on which it was practiced by Williams and tried by the court.

Excepting the testimony of Williams and that of Dr. Pierce Martin and wife, it is shown without contradiction that as soon as Dr. Stacy arrived at the hospital on the night Williams was brought in, the bruises and lacerations on the head and leg of Williams were repaired; an anesthetic administered; his leg looked over and examined with the fluoroscope; the break in the bone located; the broken parts placed in apposition; and the "Thomas Splint and Buck Extension" used in the completion of the setting of the leg.

A "Thomas Splint and Buck's Extension" consists of two parallel rods about a half inch in diameter and adjustable for the length of the leg, and which is fastened at the top to a circular hoop or ring adjusted to fit the thigh at its junction with the body. This steel ring or hoop is covered with a soft leathery substance or padding. The rods are fastened together at the bottom or lower end by an adjustable screw plate to fit the bottom of the foot. The two parallel rods extend from the hoop or ring the entire length of the leg and on the inside and outside of the injured limb. A metal pulley is fastened to the foot of the bed, and suspended to this pulley is a cord bearing a number of weights and hanging down towards the floor. The upper end of this cord extends from the pulley through the foot rest of the parallel rods and is attached to adhesive dressings on the leg below the seat of the fracture. The design of the arrangement is to keep the leg in position and reduce the contraction of the large muscles of the thigh above the fracture and prevent the broken bone from getting out of apposition or place after having been set or reduced. The adjustable foot plate, the adhesive dressings, and the parallel rods and circular hoop or ring and weights are all so designed as to render the leg immobile and keep the broken bones in apposition until union can be effected by natural bone secretions.

Dr Pierce Martin and Mrs. Martin admit the use of the "Thomas Splint and Buck's Extension," except they claim they saw no weights attached by an adhesive or otherwise; also, they claim Dr. Stacy made the statement he would set Williams' leg within a day or two, notwithstanding they admit he and his assistant, with the nurses present, performed the services in every respect, as above described, except the use of the weights. Thereafter during the night, Williams, with his hands, pushed the "Thomas Splint and Buck's Extension" down his leg, until the weights became useless. Dr. Stacy was sent for early the next morning, came and readjusted the "Thomas Splint and Buck's Extension," and advised Williams not only of the importance, but of the necessity, of his cooperating with him in the treatment administered, else he would have bad results. Drs. Giannini and Maw, the nurses present, and other patients of other physicians, who occupied the ward with Williams, detail his pushing down his leg the "Thomas Splint," thereby destroying the use of the weights. Dr. Ramsey, a friend of the Martins, testified to the presence and use of the "Thomas Splint" and weights. Except the testimony of Williams, it is overwhelmingly established by other inmates of the ward occupied by him, the nurses, Drs. Maw, Stacy, and Giannini, that Williams continued to interrupt and prevent the use, for days, or as long as the same were used, of the "Thomas Splint" and weights. About eight days after his leg was first set it was examined with the fluoroscope, or X-ray, when it was found the broken bone had lapped. Sand bags were used instead of the "Thomas Splint and Buck's Extension." Finally it was decided by Dr. Stacy and his assistant, Dr. Maw, that on account of the disobedience of Williams, his absolute refusal to receive treatment by the use of the "Thomas Splint and Buck's Extension," the "open...

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