Webb v. Lungstrum, 48503

• Decision Date: 25 February 1978
• Docket Number: No. 48503,48503
• Citation: 575 P.2d 22,223 Kan. 487
• Parties: Howard WEBB and Hanover Insurance Company, Appellants, v. Jack E. LUNGSTRUM, Appellee.
• Court: Kansas Supreme Court

Page 22

575 P.2d 22

223 Kan. 487

Howard WEBB and Hanover Insurance Company, Appellants, v. Jack E. LUNGSTRUM, Appellee.

No. 48503.

Supreme Court of Kansas.

Feb. 25, 1978.

Syllabus by the Court

1. A physician or surgeon is expected to have and exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or in similar communities.

2. In malpractice cases expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of the physician or surgeon in his medical diagnosis, his performance of surgical procedures and his care and treatment of patients.

3. There is a common knowledge exception to the rules requiring expert medical testimony in malpractice cases. This common knowledge exception applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally.

4. When a licensed orthopedic surgeon treats a patient in the emergency room of a hospital for a deep laceration of the forearm involving a complete severance of a tendon and partial severance of the median nerve, the failure of the surgeon to x-ray the wound in advance to discover a small metal fragment forced into the laceration at the time of the initial injury is not such an obvious omission that it falls within the common knowledge exception; in such case expert medical testimony is necessary to establish a lack of reasonable care on the part of the surgeon.

5. The record is examined on appeal in a malpractice action and it is held summary judgment in favor of defendant was proper when the plaintiff admitted by pretrial order that only one medical expert was available to testify, and in the deposition of that medical expert the defendant was absolved of any negligence.

Stanley Juhnke of Dinges, Gottschalk, Bolton & Juhnke, Hutchinson, argued the cause and was on the brief for appellants.

Charles D. Green, Manhattan, argued the cause and was on the brief for appellee.

FROMME, Justice:

This is an appeal from a summary judgment entered in favor of a defendant doctor in a malpractice case. The parties signed and approved a joint stipulation of facts at a pretrial conference. On the basis of these stipulated facts and the deposition of plaintiff's only expert medical witness, the trial court entered summary judgment. The point of error raised by plaintiff is that the trial court erred in concluding that expert medical testimony was necessary to establish medical malpractice in this case.

The following facts are taken from the stipulations of the parties in the pretrial order. Howard Webb, the plaintiff, sustained a severe laceration in his forearm about two inches above his left wrist. The injury occurred when a ramset gun he was using to tack strips on a concrete wall malfunctioned. Webb was taken to the emergency room at St. John's Hospital in Salina, Kansas. The defendant, an orthopedic surgeon, was called to treat the plaintiff. The surgeon discovered the flexor carpi-radialis, a tendon in the forearm, had been severed completely. The median nerve was partially severed. The defendant surgeon attended, reattached the tendon, sutured the median nerve, and treated the injury. No x-ray was taken at that time. Two and a half months later the plaintiff's family doctor, Charles Werham, took an x-ray of plaintiff's left forearm. The x-ray revealed a small metal fragment in the left forearm. Two days later the defendant Lungstrum operated and removed the metal fragment. A month and three weeks later the defendant Lungstrum operated and excised a neuroma from the median nerve in plaintiff's left forearm. (A neuroma is a benign tumor of the nerve tissue which can be caused by irritation or external trauma.)

In addition to the facts stipulated in the pretrial order the plaintiff made the following admissions:

"(a) That the only specific act of negligence which plaintiff claims defendant committed consists in the failure of the defendant to x-ray the left arm of the plaintiff to discover the presence of the metal fragment therein.

"(b) The plaintiff admits that to make a submissible case under the doctrine of res ipsa loquitor (sic) it is necessary for the plaintiff to allege and prove a specific act of negligence; plaintiff further admits that the only specific act of negligence known to plaintiff and which he alleges in support of his claim to recover under the doctrine of res ipsa loquitor (sic) is the failure of the defendant to x-ray the left forearm of plaintiff in order to discover the presence of the metal fragment therein.

"(c) The only medical experts known to plaintiff who will purportedly testify that the defendant was negligent are Dr. Charles Werhan and the defendant."

In the deposition of Dr. Charles Werhan he described the location and extent of the laceration treated by Dr. Lungstrum, which included the repair of the severed tendon and the median nerve. After inspecting the emergency room report reflecting the initial surgery by Dr. Lungstrum, Dr. Werhan testified by deposition as follows:

"Q. Now, do I understand your testimony to be that based upon the nature of the injury and the action that he (Dr. Lungstrum) took, you observe no personal negligence from this information reflected on the ER report?

"A. No, I would say that would be routine handling of an injury of that sort.

"Q. So that if a Doctor there inspecting the wound, the condition of the tendon and the condition of the nerve and especially if he had occasion to observe it and palpate it some distance either way from the bruised area concluded that an x-ray was not indicated; would you find any fault in that final judgment?

"A. I would not.

"Q. Let me put it this way, Dr. Werhan, there was the original injury, there was the continued presence of the metal object from August 21st to November 13th, and there was the operation to remove the neuroma. Do you have an opinion based on reasonable medical certainty as to which of those three could have caused the loss of sensation in the fingers of the left hand palm and fingers of the left hand of Mr. Webb?

"A. I would say that that is very difficult to answer. Any three could as far as losing sensation. What Mr. Webb was after mainly was relief of pain.

"Q. Right, but are you saying at this time that you could not say with scientific certainty which of those three did, in fact, cause loss of sensation of Mr. Webb?

"A. I would have to say yes.

"Q. Do you know, Dr. Werhan, of any malpractice or negligence on the part of Dr....