Vaughan v. Memorial Hospital

• Decision Date: 08 February 1927
• Docket Number: 5759.
• Citation: 136 S.E. 837,103 W.Va. 156
• Parties: VAUGHAN v. MEMORIAL HOSPITAL
• Court: West Virginia Supreme Court

136 S.E. 837

103 W.Va. 156

VAUGHAN v. MEMORIAL HOSPITAL

No. 5759.

Supreme Court of Appeals of West Virginia.

February 8, 1927

Submitted February 1, 1927.

Rehearing Denied March 10, 1927.

Syllabus by the Court.

Where a trial court has set aside a verdict because of the admission of evidence which tended to confuse and mislead the jury on the controlling issue, peculiar weight is accorded to the trial court's order, and it will not be disturbed, unless plainly unwarranted.

In the trial of a case of malpractice against a surgeon, the controlling issue being whether he has exercised reasonable and ordinary care, skill, and diligence, such as accords with the usual standards of the profession as practiced by accredited surgeons in the same or similar localities, an instruction should be given, if offered, telling the jury the peculiar and controlling weigh t it should give to the evidence of surgeons in determining whether defendant has used such ordinary and reasonable care, skill, and diligence in the treatment.

Error to Circuit Court, Mercer County.

Action by W. A. Vaughan against the Memorial Hospital for malpractice. A verdict for plaintiff was set aside, and he brings error. Affirmed.

Hugh G Woods, of Princeton, for plaintiff in error.

Hartley Sanders and Reynolds & Reynolds, all of Princeton, for defendant in error.

LIVELY J.

W. A Vaughan recovered a verdict for $4,695 against defendant which was set aside by the trial court for error in the admission of evidence, and from that order Vaughan prosecutes error, asserting that no reversible error was committed in the trial.

This case was here before on a verdict for plaintiff set aside by the trial court, and was affirmed on the ground that, plaintiff having relied upon the fact in the former trial that, by reason of the broken bones in the foot not being properly set by defendant's physicians and surgeons, pus generated at the fracture and caused the break to decay, and having failed to produce evidence of the physician, Dr. Walker, who later amputated the bones, to show that there was actually pus present in the fracture, a fact material to the issue, the trial court was justified in setting aside the verdict and granting a new trial. Vaughan v. Hospital, 100 W.Va. 290, 130 S.E. 481.

On the new trial Dr. Walker's deposition was read to the jury, certain questions and answers therein being objected to by defendant, but read to the jury over objection, and the court, on motion to set aside the verdict, came to the conclusion that error had been thus committed, and set aside the verdict on that ground. Vaughan's counsel says these questions and answers were admissible; while defendant's counsel say they were highly prejudicial, and in addition thereto the failure to give instructions offered by defendant are cogent grounds on which the order setting aside the verdict may be based.

Vaughan, a coal miner, was injured by a fall of slate on April 5, 1923, which broke two metatarsal bones in his right foot near where they joined the toes, and bruised and abraded the foot. Two days later he was admitted to defendant hospital for treatment. The foot was swollen to about twice its normal size, and at two places, one between the great toe and the next, and the other between the little toe and the next, was exuding serum and pus.

The first treatment given was to stop the infection and reduce the swelling; the doctors fearing that through infection and blood poisoning the patient might lose his foot, leg, or his life. An X-ray was immediately taken, which located the fracture and the relative position of the broken bones. The proper bandages and antiseptics were applied, and a wire net or splint placed on the foot. The treatment was successful, and the swelling was greatly reduced, and the infection thought to be under control at a period of about seven days. Then a plaster cast was put around the leg from below the knee around the ankle and foot, immobilizing it, extending on the bottom of the foot to where the toes join the foot, but leaving an open space for inspection. The patient was then allowed to go home, where he remained two or three weeks. When he returned the swelling had further subsided, and another like cast was used. The patient in due time came back and the second cast was removed. The foot was then subjected to physical examination, as well as examination by X-ray and fluoroscope, and the bones were found to be in proper union. The patient was then discharged from treatment, with instructions as to the use of his foot, and told to consult his local physician, Dr. Craft, and not to return to the hospital unless directed so to do by Dr. Craft. Plaintiff went home, and he says that his foot remained painful and he was unable to use it. He says he consulted Dr. Craft, who told him his foot was doing very well, and that he need not go back to the hospital.

About three months after his discharge from the hospital, plaintiff went to Matoka and had an X-ray taken, which showed that the bones were not together. He then went to Charleston, W.Va., to the Mountain State Hospital, where, after an X-ray and examination, it was found that the heads of the two metatarsal bones were projecting downward towards the sole of the foot, and there was a nonunion. An operation was performed, and these two bones were removed and a small portion of the ends of the metatarsal bones were cut off, because there was evidence that they were not in a healthy condition and were undergoing necrosis. Since that time plaintiff's foot pains him and swells when he attempts to do manual labor requiring the use of the foot, such as standing or lifting.

The acts of negligence in treating the foot which plaintiff's counsel says were committed, and which warrant the verdict, are that the plaster of paris casts did not extend far enough to support the broken bones; that the bones were not set so that they would knit together; that there was pus in the fracture at the time he was discharged from the hospital. That the casts did not extend far enough to support the fracture, we have the evidence of plaintiff, while the doctors say that they extended beyond the fractured bones. But it appears that these casts served their purpose, for, when the last one was removed, an examination was made both by X-ray and fluoroscope, as well as by physical examination, and the bones were then in proper position and a union had begun. No one says otherwise; and the only circumstance which says they were not properly set and were not united is that in about three months afterwards, plaintiff being at home most of the time and moving around, an X-ray made by Dr. Caldwell showed the bones were not then united, and plaintiff had suffered pain when attempting to use the foot. To prove that there was pus in the foot at the time he left the hospital, plaintiff relies upon the evidence of Dr. Carr, who was present at the time of the discharge from the hospital, and who made a casual examination of the naked foot, and found it somewhat swollen, and who said to plaintiff on that occasion that it looked to him that the foot might have pus in it. He would not say at the trial that the foot had pus in it; only that it looked that way to him. He said it was not unusual for broken feet or limbs to be swollen while the cure is being effected and frequently for some time after. With this impression made upon Dr. Carr by his casual examination is coupled the fact that the foot did not get well, and by X-ray made by Dr. Caldwell about three months later it was found that the bones were not knit, and there was a fracture showing, plaintiff's counsel argues that the jury was warranted in saying that there was in fact pus in the foot when the patient was discharged. That was the argument made when the case was here before, and it was pointed out that the evidence of Dr. Walker, who performed the amputation, was important to show whether there was evidence of pus at the time of the amputation. The case went back because of the absence of Dr. Walker's evidence. On that point Dr. Walker says:

"There was no pus about the bones at all-no abscess-no pus. The bones resembled necrosis. There was no abscess about the bones."

He says the foot was swollen and painful, and he thought an operation was best. He said the bones showed symptoms of having suffered osteoporosis, which is the result of or is caused by nonuse of the bone, and that pus does not cause this result. Hence it will be seen that the negligence complained of is not very satisfactorily shown. An instruction to find for defendant was offered and refused. No cross-error is assigned. Defendant is standing on the order setting aside the verdict.

As before stated, the trial court set aside the verdict on the ground that certain hypothetical questions to Dr. Walker and the answers thereto went to the jury over objection. We will state these questions and answers.

"Q. Doctor, assuming...