White v. Burton

• Decision Date: 08 June 1937
• Docket Number: Case Number: 26108
• Citation: 71 P.2d 694,1937 OK 381,180 Okla. 499
• Court: Oklahoma Supreme Court
• Parties: WHITE v. BURTON

1937 OK 381

71 P.2d 694

180 Okla. 499

WHITE v. BURTON

Case Number: 26108

Supreme Court of Oklahoma

Decided: June 8, 1937

Syllabus

¶0 1. PHYSICIANS AND SURGEONS - Evidence - Action by Patient Against Physician for Damages Resulting From Malpractice - Issue of Fact to Be Determined by Expert Witnesses and Properly Submitted to Jury.

Where a patient sues a physician for damages alleged to have been suffered as the result of the failure of the physician to properly diagnose the patient's injury and of the failure of the physician to treat the injury with the care and skill commensurate with his responsibility, the issue of fact is one of science and must necessarily be established and determined upon the testimony of skilled, professional witnesses; and where such evidence is introduced and the same is in conflict, the issue should be submitted to the jury under proper instructions.

2. APPEAL AND ERROR - Harmless Error in Admission of Evidence and Argument of Counsel.

Where it is alleged as grounds for reversal of a judgment that the losing party was prejudiced by the erroneous admission of incompetent evidence and by the improper argument of counsel for the prevailing party to the jury, the judgment will not be reversed therefor unless this court can say that as a result thereof the losing party was materially prejudiced and prevented from having a fair and impartial trial.

Appeal from District Court, Tulsa County; S.J. Clendinning, Judge.

Action by Geraldine Burton, a minor, by her father and next friend, C.A. Burton, against N. Stuart White. Judgment for plaintiff, and defendant appeals. Affirmed.

Gibson, Maxey & Holleman, for plaintiff in error.

Searcy & Underwood and Hickman & Ungerman, for defendant in error.

BAYLESS, V. C. J.

¶1 Geraldine Burton, a minor, through her father and next friend, C.A. Burton, instituted an action in the district court of Tulsa county, Okla., against Dr. N. Stuart White, to recover damages for alleged serious and permanent injuries she received as the result of certain alleged acts of malpractice. From a judgment in her favor, the defendant appeals.

¶2 The defendant advances 14 grounds, some of which are subdivided, for a reversal of said judgment. At least six of these relate to the main issue, and will be considered together. This contention may be summarized thus: There was a total absence of competent medical testimony to attribute the failure of plaintiff's leg to heal to a lack of care or skill in diagnosis and treatment by the defendant, or, to put it another way: The overwhelming and uncontradicted evidence is that plaintiff's ununited fracture of the tibia is the result of a congenital condition and a systemic deficiency, and that no amount of care, skill, or treatment would have produced any better results. The defendant contends that he diagnosed the plaintiff's injury properly, and that he treated it with a skill commensurate with his professional ability and responsibility. It is proper at this point to summarize the evidence and indicate wherein it is or is not in conflict.

¶3 The plaintff jumped from her high chair when she was about 21 months old. Thereby she injured her left leg. This happened at night, and defendant was called to see her. The parents testify that defendant came to visit plaintiff while on his way to a party and only made a cursory examination and pronounced the injury to be a sprain. Defendant denies this, and testified he made as much examination as was possible, prescribed treatment, and called the next morning when he thought the leg could be better examined and treated. Plaintiff was taken to the hospital, where defendant reduced the fracture and had her leg X-rayed. The parents testified defendant told them the fibula or small bone was broken, that such bone was of small consequence to humans, and it would heal in due course and without trouble. The X-ray, which defendant did not then examine, showed a fracture of the tibia, and not of the fibula, and a good setting thereof. All physicians testified that the reduction of the fracture showed good apposition of the ends and good alignment. Defendant denies he said the fibula was broken, and insists he knew it was the tibia. The X-ray bears him out in this, and he insists it was not necessary for him to examine the X-ray, since a child's limb is small and manual examination is sufficient. After four or five weeks, defendant removed the cast and advised the parents to have plaintiff walk on the leg. He made no X-ray at the time. Plaintiff refused to walk, and after some lapse of time defendant put a new cast on the leg. This procedure of applying and removing casts lasted for months. The parents testified that during all of this time defendant said plaintiff's fibula was making satisfactory progress. Defendant testified he knew the child was suffering from rickets and that the bone would not unite for this reason, and, further, that he advised the parents to consult a specialist for that condition. Defendant made no effort to treat her therefor. The injury was sustained May 21, 1931. In January, 1932, the defendant had a second X-ray made. The parents testified that at that time defendant admitted to them he had labored under the impression the fibula was broken, and now this X-ray showed the tibia broken instead, he could and would fix that. Defendant emphatically denies this. Within a short time defendant and another doctor operated on the plaintiff's leg by cutting into the bone. They discovered some callus, scraped the ends of the bone, and inserted a beef bone peg to maintain apposition and alignment. Their testimony was that not enough serviceable callus had formed to produce a union. During this operation the fibula was broken, and apparently no attempt was made to treat it. The theory was that the fibula was causing an adverse effect upon the tibia and causing the leg to bow. This treatment did not produce a union and the beef bone peg slipped down into the medullary canal of the lower portion of the bone. Thereafter defendant again operated upon the plaintiff's leg, and removed the beef bone peg, rescraped the ends of the bone, and sutured them together. This did not produce a union. The parents thereupon took the child to Mayo's, where a homogenous graft (using a portion of bone from the father's leg) was performed. This operation did not succeed, although the bone graft did unite to the upper end of the tibia. We have pointed out herein where competent evidence of the parents conflicted with the evidence of defendant as to the diagnosis, early treatment, and later diagnosis. We do not mean that the parents' testimony was of a scientific character, but it was recitation of what defendant told them - all of which defendant denied.

¶4 The most serious aspect of plaintiff's condition is this permanent nonunion. Consequently, the most serious question is whether it is in any wise attributable to defendant's diagnosis and treatment. This issue, under our decisions, is one to be determined upon medical testimony. Inter-Ocean Oil Co. v. Marshall, 166 Okla. 118, 26 P.2d 399, and other cases. Therefore, our decision upon the arguments embraced under this contention turns upon the testimony of the various physicians.

¶5 The defendant was supported in the correctness of his diagnosis, the propriety of the treatment given by defendant to plaintiff, and in his contention that the permanent nonunion resulted from the congenital condition of the bones and the presence of rickets, by the positive testimony of ten other physicians. Several of these physicians had treated plaintiff, and all of them had made some examination of her. At least four of these physicians testified that an examination of the various X-ray pictures of plaintiff's leg demonstrated the congenital condition of the bone and the existence of rickets. All of these physicians testified positively that the permanent nonunion resulted from the failure of the plaintiff to produce the callus substance necessary to form a union and that this resulted from the congenital condition of the bone and the rickets; and all denied that this permanent nonunion resulted from any failure of diagnosis or treatment. It is difficult to conceive a stronger defense in this respect. Even the eminent bone specialists at Mayo's Hospital, who treated the plaintiff at the request of her parents, and whose deposition was taken by the plaintiff but introduced by the defendant, unqualifiedly supported the defendant's theory and defense.

¶6 But, however positive and strong this defense is, it is not uncontradicted, and, therefore, was a question for the jury.

¶7 The plaintiff's testimony on these points was embodied in the depositions of two physicians. It may be said at this point that these physicians never examined or treated the plaintiff. This does not render their testimony incompetent, but would go to the weight thereof. This is for the jury. Under the strenuous argument of the defendant that the testimony of these physicians does not conflict with the testimony of his expert witnesses, we deem it advisable to point out wherein it does conflict.

¶8 (1) These physicians criticize the defendant for not reducing the plaintiff's fracture immediately, and for waiting until the next day as he did; (2) they criticize defendant for not keeping the bone fragments in a continuous and satisfactory alignment and apposition; (3) they criticize him for not taking X-ray pictures with more frequency, whereby he might have studied the alignment, the apposition, the formation of callus and other details of healing, and might thereby have known positively of the failure of a union and to have taken steps to bring it about; (4) they criticize defendant for failure to have made analyses of the blood by which constitutional deficiencies might have been determined accurately and treated; (5) they criticize the cast applied (one of them saying that splints was the proper...