White v. Mitchell
| Citation | 263 Ark. 787,568 S.W.2d 216 |
| Decision Date | 26 June 1978 |
| Docket Number | No. 77-278,77-278 |
| Parties | Dr. Robert H. WHITE et al., Appellants, v. Delmon F. MITCHELL et ux., Appellees. |
| Court | Supreme Court of Arkansas |
Wright, Lindsey & Jennings, Little Rock, for appellants.
Vincent Foster, Jr., Little Rock, James J. Leonard, Phoenix, Ariz., James R. Rhodes, Friday, Eldredge & Clark, Little Rock, for appellees.
We are to determine whether there is substantial evidence to support the trial court's action in granting directed verdicts * in this medical malpractice action resulting in the following:
4. Dismissal of the action against Dr. Stanley Combs, who was employed by Hot Spring County Memorial Hospital to cover the emergency room on weekends.
If there is sufficient evidence to support the trial court's action, we are duty bound to affirm the ruling of the trial court, while on the other hand, if the evidence falls short of the substantiality requirement, we are equally duty bound to reverse the action of the trial court.
Appellee, Delmon F. Mitchell, on Thursday, December 6, 1972, fell from the roof of a house while either in the process of ascending or descending a ladder and, as a direct consequence of the fall, sustained a fracture of the tibia 1 and fibula 2 of the right leg at the juncture of the mid and distal third of these bones. Mr. Mitchell was taken to the Hot Spring County Memorial Hospital, arriving at approximately 6:20 p. m. where he was seen by appellant, Dr. Robert H. White. Dr. White performed a closed reduction, 3 the leg was placed in a stockinette, wrapped with sheet wadding and covered with a plaster of Paris Cast 4 from the instep to the groin, with the knee at an angle at 70o and admitted Mr. Mitchell to the hospital.
Upon reviewing the post-reduction x-ray film, Dr. White discovered the bones were On December 9, 1972, at approximately 2:00 a. m. Mr. Mitchell was unable to move his toes of the right foot and some swelling was observed. At 3:15 a. m., Mr. Mitchell complained further of being unable to move his toes which were observed to be cyanotic 5 and cool to the touch. Dr. White was notified of Mr. Mitchell's condition by telephone and during the telephonic conversation, Dr. White directed the nurse, a licensed practical nurse, to cut the cast and wedge it a few inches. It seems that as a consequence of these steps, Mr. Mitchell obtained relief from these symptoms.
not in perfect alignment. The cast was cut and reworked until Dr. White was satisfied with the alignment. Mr. Mitchell was then admitted to the floor of the hospital at 9:00 p. m. Within a few minutes of Mr. Mitchell's arrival upon the floor, Dr. White cut the cast to relieve pressure which Mr. Mitchell was complaining of.
At approximately noon on December 9, 1972, Mr. Mitchell complained further of severe pain in his right leg and the inability to move his toes which were observed to be cyanotic. Dr. White was called. At 12:15 p. m., the cast was cut, pursuant to the directions given by Dr. White over the telephone, by Dr. Stanley Combs who was employed by the hospital to cover the emergency room of the hospital on weekends. Thereafter the color in the toes was observed to be better, there was adequate circulation, good sensation, no pain and moderate swelling.
At 3:00 a. m. on December 10, 1972, Mr. Mitchell's toes appeared to be more cyanotic and swollen; again the cast was cut and wedged a few inches by Dr. Combs.
Dr. White saw and examined Mr. Mitchell on Monday, December 11, 1972, at 9:00 a. m.
On December 12, 1972, at approximately 9:15 a. m., Dr. White recognized the inability on the part of Mr. Mitchell to move his toes, the presence of sensation, but some discoloration of the toes. At 2:00 p. m., Dr. White cut a window in the cast over the peroneal nerve, and at 2:30 p. m., Dr. White ordered Mr. Mitchell transferred to the Arkansas Baptist Hospital in Little Rock under the care of Dr. Leighton Millard, an orthopedic surgeon. On the evening of December 12, 1972, Dr. Millard performed a fasciotomy of the right calf, and on December 28, 1972, the right leg was amputated below the knee.
On April 11, 1974, appellees, Delmon F. Mitchell and Virginia Mitchell, his wife, filed their complaint in the Circuit Court of Hot Spring County, Arkansas, against Argonaut Insurance Company, insurer for Hot Spring County Memorial Hospital, 6 Dr. Robert H. White and Hot Spring County Memorial Hospital, seeking a judgment jointly and severally against the defendants for the sum of $750,000.00 for Mr. Mitchell and the sum of $100,000.00 for loss of consortium in behalf of Mrs. Mitchell. Defendants, Argonaut Insurance Company, Hot Spring County Memorial Hospital and Dr. Robert H. White, inter alia, denied the allegations contained in the complaint.
On October 22, 1974, plaintiffs filed an amendment to their complaint making Dr. Stanley Combs a party defendant to their action. On December 6, 1974, Dr. Combs filed his answer denying the allegations of the complaint of the plaintiffs, and filed his cross-claim against Hot Spring County Memorial Hospital, Argonaut Insurance Company and Dr. Robert H. White praying judgment against the cross-defendants for any sums that he might be held liable for under plaintiffs' complaint, and in the alternative, judgment against the cross-defendants for contribution in accordance with the Uniform Contribution Among Tortfeasors Act. On January 6, 1976, Hot Spring County Memorial Hospital and Argonaut Insurance Company, among other things, filed their cross-complaint against Dr. Robert H. White and Dr. Stanley Combs for judgment by way of contribution or indemnity in the event they should be found liable to the
plaintiffs for any sums. On January 8, 1976, Dr. Stanley Combs filed[263 Ark. 794] his answer denying the material allegations contained in the cross-complaint of Hot Spring County Memorial Hospital and Argonaut Insurance Company.
The trial of this matter was conducted by the trial court on February 21, 1977, and on February 23, 1977, after all parties having rested, the plaintiffs and defendants moved the trial court for directed verdicts. On February 24, 1977, the trial court made the following ruling:
A. Awarded Delmon Mitchell judgment against Dr. Robert H. White in the sum of $250,000.00 as and for special and general damages.
B. Awarded Virginia Mitchell the sum of $50,000.00 against Dr. Robert H. White for her claim of loss of consortium.
C. Awarded judgment in behalf of Argonaut Insurance Company and against plaintiffs-appellees as the insurance carrier for Hot Spring County Memorial Hospital and its agents, servants and employees, thus, dismissing plaintiffs' complaint as to these defendants.
D. Awarded judgment in favor of Dr. Stanley Combs and against plaintiffs-appellees, resulting in a dismissal of plaintiffs' complaint as to Dr. Combs.
E. Awarded judgment in favor of Dr. Stanley Combs and against defendant, Argonaut Insurance Company, on the cross-claim of Argonaut Insurance Company against Dr. Stanley Combs, resulting in a dismissal of the cross-complaints filed by Dr. Combs, Argonaut Insurance Company and Hot Spring County Memorial Hospital.
1. Appellant, Dr. Robert H. White, is entitled to have judgment entered in his favor as a matter of law.
2. The trial court erred in admitting the testimony of Dr. Thomas Henry Tabor, Jr.
3. The judgments are excessive.
At the outset, we deem it advisable to consider appellant's contention that the trial court committed reversible error in admitting the testimony of Dr. Thomas Henry Tabor, Jr., expert witness called by Delmon F. Mitchell. The thrust of appellant's argument may be stated succinctly by quoting directly from appellant's brief:
In Gambill v. Stroud, 258 Ark. 766, 531 S.W.2d 945 (1975), inter alia, we said:
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