Vann v. Harden
| Decision Date | 26 April 1948 |
| Docket Number | Record No. 3326. |
| Citation | 187 Va. 555 |
| Parties | FOY VANN v. ARTHUR GARDNER HARDEN AND FOY VANN v. ERNEST R. HARDEN, JR. |
| Court | Virginia Supreme Court |
Present, Hudgins, C.J., and Gregory, Eggleston, Spratley and Miller, JJ.
1. PHYSICIANS AND SURGEONS — Negligence — Reasonable Skill and Diligence Required. — A physician is not a warrantor or insurer of a cure. His contract is to treat the case with reasonable diligence and skill.
2. PHYSICIANS AND SURGEONS — Negligence — Duty to Possess Reasonable Degree of Learning and Skill. — A physician and surgeon, by taking charge of a case, impliedly represents that he possesses, and the law places upon him the duty of possessing, that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices, and which is ordinarily regarded by those conversant with the employment as necessary to qualify him to engage in the business of practicing medicine and surgery.
3. PHYSICIANS AND SURGEONS — Negligence — Application of Learning and Skill. — Upon consenting to treat a patient it becomes the duty of a physician to use reasonable care and diligence in the exercise of his skill and the application of his learning to accomplish the purpose for which he was employed.
4. PHYSICIANS AND SURGEONS — Negligence — Continuance of Service as Long as Necessary. — After a physician has accepted employment in a case it is his duty to continue his services as long as they are necessary. He cannot voluntarily abandon his patient. Even if personal attention is no longer necessary in the treatment of an injured limb, the physician, if the case calls for it, must furnish the patient with instructions as to its care, and his failure to do so might become actionable negligence.
5. PHYSICIANS AND SURGEONS — Negligence — Failure to Exercise Reasonable Care in Treatment of Broken Leg — Case at Bar. — In the instant case, an action by a father and son to recover damages for the negligence of a doctor in the treatment of the son for a broken leg, the evidence showed that the break was a simple one and that defendant reduced the fracture and set the leg in a plaster cast. On the next day the doctor was told that the patient was suffering an excruciating pain in the injured leg and had no feeling in his toes but failed to do anything about it. The next day after the last complaint, which was a Sunday, the defendant left the city for nine days without advising either the patient or his parent of his intention to leave and made no provision for the patient during his absence and did not communicate with him or leave any instructions with any other doctor to take care of the case while he was away. On his return the defendant failed to render any treatment after he had been advised of the serious condition of the patient and sent him home from the hospital without making any further provision or giving any direction for his care and treatment. About a week after this defendant failed to respond to a call for medical assistance made by the father when the doctor, by his own admission, had not released the care nor been discharged from the obligation he assumed when he took the case. The leg became infected and amputation was required. Defendant contended that there was no evidence upon which the verdict could be sustained.
Held: That there was no merit in the contention since the evidence sufficiently supported the verdict.
6. WITNESSES — Failure to Call — Presumption — Where Testimony the Same as That of Other Witnesses — Case at Bar. — In the instant case, an action by a father and son to recover damages for the negligence of a doctor in the treatment of the son for a broken leg, complaint was made of the failure of plaintiffs to call a doctor who had subsequently treated the son as one of plaintiffs' witnesses. It was charged that if he had been called his testimony, presumptively at least, would have been adverse to the plaintiffs. Plaintiffs introduced the testimony of three physicians and there was little or no variance in their testimony and the defendant physician himself agreed with them on most of the important features of the case. The witness not called was equally available to defendant.
Held: That the rule that the failure of a party to call a certain witness creates a presumption against such party had no application in the instant case.
7. PHYSICIANS AND SURGEONS — Negligence — Instructions — Case at Bar. — In the instant case, an action by a father and son to recover damages for the negligence of a doctor in the treatment of the son for a broken leg, defendant objected to instructions, given at the instance of plaintiffs which defined the care and skill required of a physician under the circumstances, the duration of his employment; told the jury that if they believed he failed to perform his duties and such failure was the proximate cause of the loss of the leg he would be liable to respond in damages; that if the doctor absented himself from the city for nine days without notice to the plaintiffs and without making any provision for the patient during his absence, and if during that time the patient required medical attention which might or should have been known to defendant, then his conduct in leaving was negligence and if it were the proximate cause the defendant was liable. Finally the court told the jury that they had the right to consider the non-medical evidence in weighing the medical evidence.
Held: That there was no error in the instructions.
Error to a judgment of the Court of Law and Chancery of the city of Norfolk. Hon. O. L. Shackleford, judge, and Laurence W. I'Anson, acting judge, presiding.
The opinion states the case.
Jas. G. Martin & Sons and Leigh D. Williams, for the plaintiff in error.
William G. Maupin and Willcox, Cooke & Willcox, for the defendants in error.
Two actions at law by notice of motion were instituted in the trial court in November, 1945, — one in behalf of Arthur Gardner Harden, an infant seventeen years of age, suing by his father, Ernest R. Harden, Jr., as his next friend, and the other in behalf of the father, Ernest R. Harden, Jr. In both, Dr. Foy Vann, an orthopedic surgeon was the defendant, and both actions were grounded upon the alleged negligence of Dr. Vann in the treatment of Arthur Gardner Harden. In the latter's case the damages claimed were $25,000, and in the father's case the damages claimed for deprivation of his son's services and medical expenses were fixed at $5,000.
The son had fractured his leg in a football game on October 19, 1944, and some time later the leg had to be amputated. Afterwards, on account of the amputation, the original notice of motion in his case was amended raising the amount of damages from $25,000 to $50,000. The cases were tried together before the Hon. O. L. Shackleford, judge of the trial court, beginning on the 19th and continuing through the 22nd day of November, 1946.
Upon the completion of the evidence for the plaintiffs the defendant moved to strike it, and at the close of all the evidence a similar motion was made, but both motions were overruled by Judge Shackleford. Whereupon, the jury returned a verdict of $20,000 in favor of Arthur Gardner Harden, and a verdict of $5,000 in favor of Ernest R. Harden, Jr. Motions were made to set aside the verdicts but in the meantime Judge Shackleford had become ill and Hon. Laurence W. I'Anson, judge of the Court of Hustings for the city of Portsmouth, was designated to hear the motions. After mature consideration Judge I'Anson overruled them and entered judgment on the verdicts on July 10, 1947.
The fracture of Arthur G. Harden's leg was between the knee and the ankle. It was a simple one with slight comminution or splintering. After the father had been notified of the accident he immediately got in touch with Dr. Vann and engaged him to treat his son who had been taken to the Norfolk General Hospital. Dr. Vann reduced the fracture and set the leg in a plaster of Paris cast, in the customary way, with the padding and gauze between the cast and the leg.
On the next day, Friday, October 20, Dr. Vann visited his patient, and again about 10:00 a.m. on Saturday the 21st of October. On October 20 when Dr. Vann saw the boy the father was present. He and the son told Dr. Vann that the son was suffering excruciating pain in the injured leg and that he had no feeling in his toes. Dr. Vann, according to the plaintiffs' evidence, made no examination of the cast and did nothing about it. Again on October 21 both the father and son made a similar complaint to Dr. Vann when he called. The pain in the ankle had become continuous and unendurable. The doctor was told that there was a throbbing sensation in the ankle of the patient, that it felt as though a tight band were around it. and that he had no feeling in his toes. The father suggested that the cast was too tight. Dr. Vann, in very emphatic language, said it was not. However, according to the plaintiffs' evidence, he made no examination of the cast or leg and did nothing to alleviate the pain on this occasion. On October 22, which was Sunday, Dr. Vann left the city for a week without advising either the patient or his parents of his intention to leave. He did not make any provision for the patient during his absence and did not communicate with him or leave any instructions for any other doctor to take care of the case while he was away.
On October 21, which was the day of the last visit of Dr. Vann before leaving on his trip, the patient's condition was such that his temperature was normal at midnight on the 19th, but rose to 101.6 at four p.m., on the 20th; four hours later it was 100.8; on the 21st it was 101, then at eight a.m. it was 100.8. These temperatures were noted on the chart of the patient. The chart discloses that on the 21st the white corpuscles blood...
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