Foxton v. Woodmansee , 236 Or. 271 ( 1963 )

LUSK, J.

This is an action for malpractice against an osteopathic physician and surgeon. The jury returned a verdict for the defendant which the court set aside. The defendant appeals.

The plaintiff, a woman 55 years of age, sustained a Colles’ fracture of her right wrist as the result of a fall on an icy stepping stone in her hack yard. She consulted the defendant, who sent her to the Portland Osteopathic Hospital where he reduced the fracture. The operation was performed on the evening of January 12, 1960, the day that plaintiff was injured. On July 20, 1961, plaintiff filed her complaint alleging that the negligence of the defendant has caused her pain and suffering, displacement and abnormality of the right wristbones and deformity and stiffness of the hand and fingers, nerves and soft tissues.

The case was tried upon an amended complaint, in which the specifications of negligence are as follows:

“1. In attempting to reduce the fractures without sufficient prior experience, and without adequate knowledge of the necessary placement of the bones and a cast. (There was no evidence to support this charge.)

“2. In placing a cast upon plaintiff’s arm with her hand * * * in the wrong position.

“3. In placing a cast upon plaintiff’s arm which extended too far outward on the fingers thereof.

“4. In failing and neglecting to remove said cast and replace the same with a cast with plaintiff’s hand in the proper position.”

After the verdict for the defendant was returned the judge announced from the bench that he would set it aside on his own motion on the ground that there was undisputed evidence that defendant was negligent in “leaving the cast to the fingertips for top long a period or leaving the cast on to the fingertips”. Subsequently the plaintiff filed a motion for a new trial and the court entered an order granting such motion on all the grounds therein specified and specifically ordering a new trial on its own motion on the grounds theretofore stated from the bench.

The sole question is whether there is adequate basis in the record for the order.

A brief statement of the evidence becomes necessary.

A Colles’ fracture was defined by one of the expert witnesses as “an upward displacement of the distal end of the radins bone, which is the upper arm bone next to the thumb.” By upward he meant “bending up toward the back of the hand rather than the palm.” The defendant had the arm X-rayed and from the film made an X-ray diagnosis of a comminuted impacted Colies’ fracture of the plaintiff’s right wrist. Reduction of the fracture was accomplished while the plaintiff was under a general anesthetic and the plaintiff’s right arm was thereafter placed in a plaster of Paris cast in “mid-position” by which the radius is maintained straight with the hand tipped slightly to the ulna side, that is, toward the little finger. The cast extended about to the end of the little finger and exposed the tips of the other three fingers. Because of the “hypermobility” of the fracture, the defendant extended the cast “beyond the average to help maintain the position of the hand and to prevent as much as possible the retraction of the head of the radius, which is our problem.” The defendant intended to cut the cast back at the end of three weeks to allow for freedom of the fingers.

On January 13, 1960, the date following the operation, the defendant ordered the plaintiff discharged from the hospital.

Doctor "Woodmansee saw the plaintiff in his office a number of times thereafter. She was very much concerned about the outlook for the appearance of her wrist and the effect of the injury on her work. She was at the time she sustained her injury a billing clerk, whose duties included operating a computer. The defendant explained to her that only time would tell about these things, that the immobilization would have to be maintained for some time and that she was “really going to have to work at it to get the function in there”. By working at it he meant carrying out a program for exercising the hand and fingers. Ultimately the defendant concluded that he was not “getting through to her” and called in Doctor John E. Scanlon for consultation. Doctor Scanlon is an osteopathic physician and surgeon on the staff of the Portland Osteopathic Hospital.

Doctor Scanlon concluded from his examination of the X-rays that “this was a very difficult fracture,” that it was “ severely comminuted” and that it “would be very difficult to hold these fragments in their proper alignment.” He felt that a remanipulation and recasting would bring about an improvement on the previous reduction and so recommended to the plaintiff.

She consented and on January 26, 1960, Doctor Scanlon, with the defendant assisting, “rendered a closed reduction under anesthesia” and casted the arm in what is called the Cotton-Loder position in which the fingers are bent downwards towards the palm. A medical witness testified that it is sometimes called the bell boy position, because “it is like a bell boy reaching for the tip in the back”.

The plaintiff thereafter continued to be under the defendant’s care. On March 4, 1960, the cast was removed by a technician at the hospital. The defendant was present. Prom then until April twenty-sixth, the defendant saw the plaintiff about twice a week for the purpose of instructing her in the exercises necessary to overcome the stiffness in her hands and fingers. The defendant testified that he “kept insisting that she wasn’t doing enough, because she wasn’t getting the result that should have been expected” and she said that she was exercising “but it hurt too much,” and he told her in response that “she had to do it in spite of some hurt.”

Doctor Edwin A. Mickel, an orthopedic surgeon called by the plaintiff, testified that there was a foreshortening of the radius of the plaintiff’s right arm due to the failure to put the original cast in the proper position and that this was not done until two weeks later when it was too late to do anything about it. In Doctor Miekel’s opinion the right position was the Cotton-Loder position. There was no dispute about the fact that the radius was foreshortened, but there is conflict in the evidence as to whether the method used by the defendant was a proper method and whether the foreshortening of the radius was due to the method used by the defendant or was something impossible to have been avoided, in view of the character of the fracture, no matter what method was employed. There is no conflict about the fact that the plaintiff suffered certain abnormalities and stiffness in the right hand and fingers and wrist, but whether these were the result of the alleged negligence of the defendant in casting the plaintiff’s arm in a position which Dr. Mickel considered improper, was a jury question. We do not understand that the plaintiff contends otherwise.

The trial judge based his ruling that the defendant was guilty of negligence as a matter of law upon certain testimony given by Doctor Scanlon on direct examination. Doctor Scanlon was asked by the attorney for the defendant whether he had an opinion as to “whether or not the application of the CottonLoder cast achieved any result superior to that which would have been achieved had the original cast or the original cast position been left alone.” An objection to the question was sustained. The witness was then asked substantially the same question, but limited solely to shortening of the radius. The testimony continued :

“A Yes, I have an opinion.

“Q What is your opinion?

“A The ultimate outcome would probably have been the same.

“Q Do you have an opinion as to the reason for the disability from which the patient suffers at the present time?

“A Yes, sir.

“Q What is your opinion?

“A The maintenance of the Cotton-Loder position for a longer period of time than usual.

“MR. PETERSON: Objected to, Your Honor.

“THE COURT: You just now testified the ultimate outcome would not have been any different.

“MR. COLLINS: We were limiting it to the radius, Your Honor, on that question.

“MR. PETERSON: Well, I will withdraw the objection.”

The trial judge, in announcing his ruling that he would order a new trial on his own motion, referred to this testimony as an admission of malpractice on Doctor Scanlon’s part. He continued:

“Thus, if he [Dr. Scanlon] committed a malpractice, the attending physician [Dr. Woodmansee] would be responsible. Based upon that reasoning, the Court should have directed the jury’s attention and should have advised the jury that the defendant was negligent with regard to one point, that is, leaving the cast to the fingertips for too long a period or leaving the cast on to the fingertips and that the plaintiff would be entitled to that sum of money from the jury as to that point.”

1, 2. We are unable to concur in this appraisal of the evidence in question. It may be assumed for present purposes that in the circumstances of this case Doctor Woodmansee would be liable for any negligence of Doctor Scanlon in the latter’s care and treatment of the plaintiff. See Ybarra v. Spangard, 25 Cal 2d 486, 490-492, 154 P2d 687, 162 ALR 1258. In any case the defendant continued his care of the plaintiff after the Cotton-Loder cast was applied. But Doctor Scanlon as a witness on the trial of this case was not an agent of Doctor Woodmansee. Certainly his statements in court were not made dwm fervet opus. No admission of his as a witness would bind the defendant. The court appears to have treated the testimony as a judicial admission of the defendant. The brief of the plaintiff so characterizes it. But a judicial admission is one made by a party or his attorney for the purpose of dispensing with proof of a fact in issue. Garvin v. Western Cooperage Co., 94 Or 487, 499-500, 184 P 555; 20 Am Jur 469, Evidence § 557; Black’s Law Dictionary (4th ed) 69. Doctor Scanlon was not a party to this litigation.

Furthermore, even though the statement had been made by Doctor Woodmansee himself, it would not have been an admission of negligence. The applicable rule has never been better put than in Staloch v. Holm, 100 Minn 276, 279, 111 NW 264, 9 LRA NS 712 (per Jaggard, J.):

“* * * Nor is it significant whether, as plaintiff’s case tended to show and defendants’ case to deny, the defendant subsequently made damaging admissions concerning the propriety of the operation, in view of his after-acquired knowledge. His negligence is to be determined by reference to pertinent facts then in existence, of which he knew or should have known in the exercise of due eare, when the operation was performed. It would be a work of supererogation to cite authorities for so obvious and necessary a principle, or for this specific application of a general rule. There is an apt and neglected analogy in the rule restricting proof of the presence or absence of probable cause for instituting an original judicial proceeding complained of in an action for malicious prosecution to known or knowable facts in existence at the time of the commencement of that original proceeding.”

See, also, Donahoo v. Lovas, 105 Cal App 705, 710, 288 P 698; Qwickstad v. Tavenner, 196 Minn 125, 264 NW 436; Phillips v. Powell et al, 210 Cal 39, 43, 290 P 441; 70 CJS 1005, Physicians and Surgeons § 62.

Either the defendant or Doctor Scanlon, in retrospect, might have come to realize and conceded that the cast should have been removed earlier than it was without admitting the charge of malpractice. The principle involved was embodied in the following portion of the court’s instructions:

“* * * A doctor is not to be judged by after-acquired knowledge or by the results of his treatment. In other words, the applicable test is whether under all the facts and circumstances then confronting the attending doctor, the techniques of treatment he employed and the treatment which he administered to the patient were in accordance with what an ordinary, prudent, careful and skillful osteopath would have done at the time and under the conditions then existing, not what hindsight may reveal should have been done in the light of subsequently occurring conditions. This is the standard by which a doctor’s conduct is to be measured and if the doctor uses such care and skill but forms an erroneous judgment as to the condition or appropriate treatment to be administered, he is not negligent. ”

There was no expert testimony in the case as to the length of time during which, according to the standards of the medical profession in the community (and so far as this case is concerned the standards for medical doctors and osteopaths are the same) the arm of a person suffering from a Colles’ fracture may properly be kept in a cast, regardless of the position in which the arm is placed. There is evidence that when the arm is placed in the Cotton-Loder position the cast is commonly or ordinarily kept on for a period no longer than six weeks. The cast in the CottonLoder position remained on the plaintiff’s arm for 36 days. While the jury might have found from the evidence that the defendant was negligent in failing to remove the Cotton-Loder cast before he did, it is our opinion that this was a question of fact and that the court below erred in setting aside the verdict on the ground that negligence in this regard was established as a matter of law.

In point of fact, to decide the question on the strength of Doctor Scanlon’s testimony is to decide it upon an issue not tendered in the amended complaint. The charges of negligence (aside from the charge of defendant’s lack of experience and knowledge as to which there is no evidence) are (1) that the defendant placed a cast on the plaintiff’s arm in the wrong position, (2) that the cast extended too far outward on the fingers of the plaintiff, and (3) that the defendant failed and neglected to remove the first cast and replace it with another in the proper position. The evidence is that the first cast was replaced with another in the Cotton-Loder position, which, according to the plaintiff’s medical witness, was the only proper position. It is not charged that the second cast was kept on the plaintiff’s arm for too long a period of time. Neither is it charged that this cast extended too far outward on the plaintiff’s fingers and there is no testimony to that effect. Doctor Mickel testified that the Cotton-Loder cast extended “down to the middle of the fingers” but that “you need that position to properly set the fracture”.

The precise ground of the court’s ruling was that it should have advised the jury that the defendant was negligent with regard to one point, namely, “leaving the cast to the fingertips for too long a period or leaving the east on to the fingertips.” The cast which extended to the fingertips (the first one) was left on the plaintiff’s arm for two weeks. There is evidence that a cast so applied may cause stiffness of the fingers and that the usual practice is to extend the cast only as far as the knuckles of the hand. But the defendant considered, as shown by his testimony quoted above, that because of the hypermobility of the fracture it was desirable to depart from the usual practice in order to reduce as much as possible the retraction of the head of the radius.

Doctor James W. Brooke, a physician and surgeon called by the defendant, testified that by this procedure the fragments can be better stabilized. Doctor Mickel recognized the problem inherent in the need for immobilization on the one hand and freedom of function of the fingers on the other. Faced with this dilemma and in view of the severity of the fracture, the defendant made the deliberate choice to extend the cast in the manner he did, intending to cut it back at the end of three weeks. We think that it cannot be said as a matter of law that the defendant was negligent in this decision, rather than that he committed an error of judgment, if such it was. See Malila v. Meacham, 187 Or 330, 354, 211 P2d 747.

As previously stated, the court, in addition to ordering a new trial on its own motion on the ground just discussed, sustained a motion for a new trial filed by the plaintiff on all the grounds therein specified. The grounds are numerous and include the court’s failure to give 12 instructions requested by the plaintiff. As to five of these requests it is conceded by counsel for the plaintiff that they were adequately covered by the court’s instructions and as to another that there was no evidence to support it. We have examined all the grounds of the motion which are insisted upon in the plaintiff’s brief and are of the opinion that none of them has merit. Discussion of them would serve no useful purpose.

The judgment is reversed and the cause is remanded with directions to enter judgment upon the verdict of the jury.