Tuscaloosa Orthopedic Appliance Co., Inc. v. Wyatt

• Decision Date: 28 September 1984
• Parties: TUSCALOOSA ORTHOPEDIC APPLIANCE COMPANY, INC. v. Edward W. WYATT, et al. 82-1068.
• Court: Alabama Supreme Court

Page 156

460 So.2d 156

TUSCALOOSA ORTHOPEDIC APPLIANCE COMPANY, INC. v. Edward W. WYATT, et al.

82-1068.

Supreme Court of Alabama.

Sept. 28, 1984.

Rehearing Denied Nov. 21, 1984.

G. Stephen Wiggins of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellant.

Edward F. Morgan, Tuscaloosa, for appellees.

PER CURIAM.

Plaintiff and his wife brought an action alleging negligence and wantonness against the defendant, Tuscaloosa Orthopedic Appliance Company, Inc., in connection with the fabrication and application of a leg brace. The jury returned a verdict in favor of the plaintiffs. Defendant appealed. We reverse.

In 1941, plaintiff Edward W. Wyatt fell out of a tree and broke his back. He recovered to the point that he could walk until complications occurred in 1946, at which time surgery was performed on his back. After the surgery, gradual paralysis occurred in both legs until, in 1957, he completely lost his ability to walk. He then became confined to a wheelchair and has been paraplegic since that time.

Mr. Wyatt began experiencing problems with decubitus ulcers (pressure sores) in 1961. He was hospitalized for more than two months for treatment of decubitus ulcers on his buttocks and was again hospitalized in February of 1979 for a month for treatment of decubitus ulcers over his hips and buttocks.

He was readmitted in May of 1979 for a four-month hospital stay. The hospital course included treatment with different types of medication, whirlpool baths, rotating air mattress, egg crate, sheepskins, and debridement of the wounds. Cultures of the wounds, change of antibiotics, and various combinations of medications were also tried. The treating physician, Dr. Herrod, stated in the discharge summary that

"[The] patient's ulcers were [a] very vexing problem, as we got one improved somewhat another one seemed to break down. Several communicated along the sacrum in an infectious process. Finally after great effort the wound seemed to be improved except for one area where two rather distant sites connected by a large fistulous like tract."

Dr. Herrod requested that the home health care nurses of the Tuscaloosa County Health Department call on Mr. Wyatt to assist in the care of his decubitus ulcers. The nurses started calling on him at home in September of 1979 and came on a regular basis thereafter.

Mr. Wyatt was re-admitted to Druid City Hospital on March 27, 1980, for treatment of decubitus ulcers on both hips and over the presacral area. He was discharged on September 5, 1980, having stayed for over five months. The discharge summary of Dr. Herrod indicated that Mr. Wyatt had a dramatic worsening of his presacral ulcer. Numerous changes in therapy were made. Dr. Herrod stated, "After initial cleaning and frustrating tries at promoting closure of the large presacral ulcer, the flap was developed and swung to cover the ulcer. This broke down and again undermining of the ulcer took place." Again, numerous methods of treatment were attempted.

In March of 1981, Mr. Wyatt fell, injuring his leg. He went to see Dr. E.C. Brock, a Tuscaloosa orthopedic surgeon, on March 20, 1981. The patient had acute cellulitus of the left knee and a comminuted fracture of the left distal femur. Mr. Wyatt was admitted to Druid City Hospital on the same day for immediate treatment of the acute infection and the fractured femur. At the time of admission, the patient had multiple infected areas over the body, which Dr. Brock described as decubitus ulcers. Mr. Wyatt was treated with intravenous antibiotics from March 20 until about April 5 to clear up the cellulitus and get his 104? temperature down.

While Mr. Wyatt was in the hospital, Dr. Brock brought James (Buddy) Mason to Mr. Wyatt's room and introduced him as being the man who would put the brace on his leg. It was not discussed at that time what kind of brace would be applied.

Mr. Mason is the president of the defendant, Tuscaloosa Orthopedic Appliance Company, Inc. He is an orthotist and has worked for the past seventeen or eighteen years with all the orthopedic surgeons in the West Alabama area. Orthotics includes the fabrication and fitting of braces and casts suitable for a patient in keeping with the instructions of the physician.

Mr. Mason took courses in orthotics at Northwestern University, worked for years under a certified orthotist, and took other courses in the nature of continuing education in the field of orthotics over the past many years. He is certified by the Board of Certification of the American Orthotic and Prosthetic Association, having passed its examination and otherwise having met the requirements and qualifications to become a certified orthotist. The American Orthotic and Prosthetic Association is a national organization for orthotists, and certification by that organization qualifies Mr. Mason to do crippled children's work for the State of Alabama and vocational rehabilitation work for the Veterans Administration. He is the only such person certified to do that work in West Alabama.

When Dr. Brock discussed Mr. Wyatt's case with Mr. Mason on April 2, 1981, Dr. Brock orally prescribed a fracture brace to hold the left knee at 90 degrees and stabilize the fracture. Dr. Brock told Mr. Mason that he wanted the usual long leg fracture brace to treat a distal femoral fracture and to immobilize the fracture. In Dr. Brock's opinion, Mr. Wyatt needed a long leg brace, and a fracture brace was the only option acceptable to the patient.

The day before the brace was applied, Mr. Mason came to Mr. Wyatt's room and took the necessary measurements. Mrs. Wyatt was present in the hospital room. When she saw the area of her husband's leg being measured, she complained to Mr. Mason that she did not think he could get in and out of bed if the brace were that high on his leg.

On April 4, Mr. Wyatt was taken to the Druid City Hospital operating room, where Mr. Mason fabricated the fracture brace and fitted it to Mr. Wyatt's left leg. When Mr. Wyatt complained about the brace coming up so high on his leg, Mr. Mason replied that it had to. The brace had metal pieces on each side of the knee, and Mr. Wyatt also complained that the metal would rub his other leg when he was in bed. This was discussed, and it was decided that a piece of sheepskin could be used to protect the other leg from irritation. The knee area of the brace was left open on the top so that it had a window in the knee. Mr. Mason explained to the patient how the brace should fit and cautioned him to be very careful about its being too tight or too loose because he was paraplegic. Instructions were also given to be careful about the brace constricting the groin area. Mr. Mason gave Mr. Wyatt further warnings and instructions on the brace and told him to watch for any kind of skin problems underneath it.

Mr. Wyatt complained in the operating room about the brace being high on his leg, because he thought it would cause him difficulty in getting in and out of bed, and also because he thought it would prevent him from sitting in his wheelchair. He had no concern at the time about the brace rubbing so as to cause a sore on his stomach, because he was not aware it could do so.

Mr. Mason came to Mr. Wyatt's room two days later and helped him get out of bed and into a wheelchair. Wyatt made no complaint about the brace at that time. In fact, Mr. Wyatt's only complaint about the brace at any time was that Mr. Mason put it up too high on his leg.

All of Mr. Wyatt's decubitus ulcers got worse while he was in the hospital for treatment of the broken leg from March 20 until April 7. In addition to the worsening of the existing ulcers, he developed new sores on his back and left elbow.

Dr. Brock saw the brace and checked it in the hospital. Mr. Mason had put what was ordered on the patient, and Mr. Wyatt was discharged on April 7.

Mr. Wyatt found a sore on his lower abdomen on or about April 23. The next day, Wyatt went to see Mr. Mason, who cut out or molded back a portion of the brace to further separate it from the sore. The sore was fully visible to Mason and was not under the brace, but was at the point where, when Mr. Wyatt folded his leg up toward his chest, the brace touched his abdomen. After the adjustment was made, Mason recommended that Wyatt go see Dr. Herrod to...