Zimmerman v. Litvich

• Decision Date: 30 March 1937
• Citation: 7 N.E.2d 437,297 Mass. 91
• Parties: HERBERT ZIMMERMAN v. MICHAEL LITVICH. MURRAY ZIMMERMAN v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 91

7 N.E.2d 437

HERBERT ZIMMERMAN v. MICHAEL LITVICH. MURRAY ZIMMERMAN v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

March 30, 1937

January 5, 1937.

Present: RUGG, C.

J., PIERCE DONAHUE, LUMMUS, & QUA, JJ.

Negligence Physician and surgeon. Proximate Cause. Evidence, Admissions.

Evidence warranted a finding that a physician in treating a boy's injured hand was negligent in failing to discover or to recognize the seriousness of a septic condition of the hand as promptly as he should have done and in giving improper treatment of such condition before procuring proper treatment.

Delay by a physician in proper treatment of a patient suffering from a progressively acute infection might be found to have caused actionable injury even if it only retarded ultimate recovery.

Admissions of a physician to an injured boy's parent that "I should have operated on him. That is the chance I took," and "You needn't worry about expense, I will make good for everything," warranted a finding of acknowledgment of liability to the patient.

TWO ACTIONS OF TORT. Writs in the Superior Court dated March 14, 1934, and July 24, 1934, respectively.

The actions were tried before Morton, J. After verdicts for the plaintiffs in the sums, respectively, of $3,200 and $865, the judge allowed motions for new trials and reported his action for determination by this court.

N. H. Kolodny, for the plaintiffs. J. F. Dunn, Jr., (Harry Leen with him,) for the defendant.

QUA, J. The first action, by the minor plaintiff, is for alleged malpractice against a physician and surgeon who treated him after his right hand had been injured in the wringer of a washing machine. The second action is by the father of the minor for consequential damages. After verdicts for the plaintiffs the judge allowed motions for new trial in both actions on the sole ground that there was not sufficient evidence to warrant the verdicts. The correctness of this ruling is the only question reported for our determination.

There was evidence which, if accepted by the jury in its aspect most favorable to the plaintiffs, had some tendency to show the following The injury occurred August 1, 1932, when Herbert, the minor plaintiff, was nine years of age. His hand was badly crushed leaving a wound for the most part open. On August 8 Herbert's mother, seeing the wound unbandaged for the first time, observed that there was pus near the index finger. It was a soft mass of pus, puffy and "yellow like." She had seen pus and knew what it was. The defendant said it was not pus. He treated the wound by swabbing it with ether and by baking. Sometime after August 8 the mother informed the defendant that Herbert had a temperature of one hundred. The defendant said, "Oh, that is nothing." He continued the same treatment. On or about August 16 a hemorrhage occurred which on medical evidence the jury could find was caused by infection having destroyed a blood vessel. The defendant put on a tourniquet. After taking an x-ray photograph he said, "Good night! Sloughing there has washed the entire tendons away now, and soon we will have to operate." Upon being asked why he did not operate sooner he said, "Well, that is the chance I took." Within a few days there was a second hemorrhage, after which an operation was performed by another surgeon. At that time there were raw surfaces which were running pus and the hand was swollen and seriously infected. One of the finger arteries was found "eroded" along its entire length and tendons were found sloughed and destroyed from sepsis. One joint was infected. The operation consisted in the removal of the sloughing tissue as a preliminary to further curative treatment. Later, other operations were necessary for skin and tendon grafting. The boy has never recovered full motion of the index finger. There was medical evidence that there are local signs of infection but that infection is judged mostly by temperature; that in this case temperature "would make you suspect there might be infection certainly"; and that going over the hand with ether and baking was not proper treatment after active sepsis began.

There was much evidence tending to contradict or to qualify that which has just been stated. But there was also evidence that during the course of the treatment the defendant, in talking to the boy's mother, spoke of the boy's condition as not being serious; that up to and after the first hemorrhage he tried to...