Steinberg v. Indemnity Insurance Co. of North America

• Decision Date: 01 August 1966
• Docket Number: No. 22625.,22625.
• Parties: Elizabeth STEINBERG, Appellant, v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellee. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Elizabeth STEINBERG, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

364 F.2d 266 (1966)

Elizabeth STEINBERG, Appellant, v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellee.

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant, v. Elizabeth STEINBERG, Appellee.

No. 22625.

United States Court of Appeals Fifth Circuit.

July 27, 1966.

Rehearing Denied August 1, 1966.

Gerald P. Fedoroff, Cecil M. Burglass, New Orleans, La., for appellant.

Carl J. Schumacher, Jr., Lemle & Kelleher, Dermot S. McGlinchey, New Orleans, La., for appellee.

Before BROWN and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge:

This diversity action was brought against the malpractice insurer of certain plastic surgeons¹ asserting negligence in their postoperative treatment of plaintiff with resulting personal injuries, disfigurement, etc. A jury returned a verdict in favor of plaintiff in the sum of $49,000; judgment was entered June 15, 1964. Defendant filed a timely motion for judgment n. o. v., and alternatively, for a new trial, on the ground that the evidence was insufficient to support the verdict. On July 8, 1964, some 23 days after the entry of judgment, the district court denied defendant's motion for judgment n. o. v., but ordered plaintiff to enter a remittitur of $20,400, so as to reduce the award to $28,600, or a new trial would be granted.

Thereafter plaintiff sought by motion to vacate the conditional order of remittitur on the ground that defendant's motion for new trial did not specify excessive quantum as a ground therefor; and that under Fed.R.Civ.P. 59(d), the court lacked judicial authority to grant a new trial on its own initiative except within 10 days after entry of judgment. The district court in a written opinion, 36 F.R.D. 253, denied plaintiff's motion. After this court refused to entertain an appeal from the district court's interlocutory order, plaintiff consented to entering the remittitur, but only under protest, and has steadfastly refused to accept the fruits of her judgment, relying on Delta Engineering Corp. v. Scott, 322 F.2d 11, 15 (5 Cir. 1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964).

Consequently, plaintiff perfected this appeal, placing at issue the propriety of the district court's conditional order of remittitur. Defendant filed a cross-appeal, based upon the district court's refusal either to direct a verdict for it at the close of plaintiff's evidence or enter judgment n. o. v. We have concluded that the district court abused its discretion in ordering the remittitur described, but that the judgment was correct in all other respects. Accordingly, we affirm in part, but reverse the order of remittitur and remand with directions to reinstate judgment in the full amount of the verdict.

Examination of the facts in some detail is necessary. Plaintiff was burned as a child and grew to adulthood with scars on the anterior aspects of both thighs. For purely cosmetic reasons, the scars causing no impairment to any bodily function, she decided upon plastic surgery for their removal. On September 7, 1960, the insured doctors, operating in two teams — one on each leg since time is of the essence in plastic surgery — excised the scar tissue, removed healthy skin from a donor site on plaintiff's abdomen, and applied skin grafts to the recipient sites.

Plaintiff does not complain of the plastic surgery itself. Rather, her claims of negligence relate to the postoperative care accorded her, which consisted of bandaging and splinting the legs so as to immobilize them and facilitate success of the skin grafts. This procedure included the tying of a dressing to the site of the graft, application of surgical rayon stockings covering the upper legs, and placing of the legs in plaster splints or half-casts, extending from the top of the thighs to the feet, with the anterior portions of both legs exposed. This requires use of a padding called sheet wadding between the immobilized legs and the splints.

Upon return to her hospital room following the operation plaintiff complained of pain in the posterior portions of her legs, predominantly on the left. One of the doctors adjusted the bandage on her left ankle, and administered medication, but the plaintiff's relief was brief. She continued to suffer from burning pain originating in the back of her legs, areas not involved in the plastic surgery.

On the second day following the operation, with recurrent pain persisting, the dressing was again loosened, and a blister formation was seen on the back of the patient's left leg about four inches above the heel. It is undisputed that at this time the doctors definitely knew what was happening to plaintiff's legs. Pressure caused by the weight of the legs against the splints was cutting off blood circulation to the skin on the posterior of her legs. Blistering is the first objective sign, with burning pain as the subjective symptom, of necrosis, or dying of the skin from lack of circulation. Neither is it disputed that, although plaintiff continued to complain bitterly of burning pain in an area not involved in the surgery, it was not until the fourth post-operative day that her legs were removed from the half-casts. Then it was seen that she had sustained severe necrosis of the posterior portions of her legs, with blistering and dead skin on the left extending from mid-thigh to ankle.

Because of complications caused by necrosis, plaintiff's recovery was prolonged and most painful, although the skin grafts to her thighs were successful. Two additional operations were required involving another graft, in which skin was removed from her buttocks and grafted to the posterior aspect of her left knee. Even though the second skin graft was successful, she has lost some of the function of her left knee because of the necrotic condition. Moreover, this graft has caused disfigurement, visible even when she is wearing street clothes.

By her appeal plaintiff seeks to set aside the order of remittitur and reinstate the verdict awarding her $49,000. In Delta Engineering Corp. v. Scott, supra, we assumed without deciding that until such time as a plaintiff actually has obtained the fruits of a judgment he or she is free to challenge the legal correctness of the Court-enforced remittitur. In the case here presented we are faced with that issue squarely, and we hold that plaintiff here, who was refused an appeal on the interlocutory order of remittitur and who has consented to entry of the reduced judgment only conditionally, as a means to facilitate this appeal, has suffered a sufficiently adverse adjudication to allow an appeal.² Moreover plaintiff has not collected the judgment as reduced.

The record reveals the following pertinent facts with respect to the damages plaintiff suffered. It should be noted at the outset that plaintiff was led to believe that the plastic surgery would hospitalize her for about two weeks and cause some pain and discomfort during that period and afterward while the skin graft and donor areas healed. But, as the result of the complications described, she was hospitalized initially for some 32 days. During the four-day period that necrosis developed plaintiff experienced the acute burning type pain associated with pressure necrosis. She testified that the pain from the graft area was minimal. When the splints were finally removed, to view the posterior of her legs, plaintiff was subjected to a most painful clean-up procedure, in removing dead skin and cleansing the injured portions of her legs. When the legs were redressed no splints were applied.

At the end of the first period of hospitalization plaintiff was able to walk only with the assistance of crutches. When there was sufficient healing she was re-admitted for a two-week hospitalization during which plastic surgery was performed to replace the skin on the posterior aspect of the left leg. When this was terminated plaintiff continued to use crutches. A few months later a third operation was performed to correct the second graft to the knee joint, which cause a tightening of the joint from the new skin. Another graft was needed to relieve this tension on the leg so it could straighten itself. On the issue of liability it is significant that following this third episode of plastic surgery splints were again applied. When, a few hours after surgery, plaintiff began to complain of a burning pain like the previous one, the splints were removed and she was merely admonished to keep the leg elevated and immobile.

She again used crutches to walk following the third skin graft and continues to experience a significant loss of function in her left leg. In all she was hospitalized for about eight weeks in the period from September, 1960 through February, 1961, during which she suffered greatly.

Prior to surgery plaintiff had worked as a dental assistant and as a waitress, both requiring a substantial amount of standing and walking. She was quite athletically inclined and enjoyed sport parachuting or sky-diving. Since the initial operation she has been unable to resume either her former occupations or her athletic activities because of significant loss of function in the left knee joint. Standing or walking for extended periods is overly fatiguing. On one occasion she sought employment with a local telephone company but was rejected because of her physical disability.

Visually, serious permanent scarring is present on the back of plaintiff's lower legs, particularly the posterior of the left knee, which cannot be satisfactorily hidden. Upon this set of facts, essentially undisputed by defendant, who appears concerned primarily with the liability issue rather than quantum, we are of the opinion that the verdict awarding plaintiff $49,000 had ample support in the record. There has been no showing that the jury's verdict resulted from prejudice or misconduct, and we feel that the factfinders' conclusions on quantum, amply supported by the record, must stand....