Jean Bryant v. John Rankin, William Harper, Jean Bryant v. John Rankin

ROSS, Circuit Judge.

This is a malpractice action brought by the plaintiff, Jean Bryant, against Dr. John Rankin, a surgeon, and Dr. William Harper, a general practitioner. The complaint alleged that negligent diagnosis and treatment of a hip fracture sustained by the plaintiff in an automobile accident, resulted in her permanent disability. The ease was tried to a jury which returned a verdict in favor of Mrs. Bryant in the sum of $150,000.00. However, the trial court granted motions filed by both defendants for judgment notwithstanding the verdict and, in the alternative, for a new trial, 332 F. Supp. 319 (S.D.Iowa 1971). We affirm the judgment n. o. v.

Mrs. Bryant was involved in the automobile accident on September 10, 1965, sustaining, among other injuries, a fracture of her left hip. She first was seen by Dr. Harper at St. Joseph’s hospital in Keokuk, Iowa about three hours after the accident. Dr. Harper examined her and gave instructions to take x-rays which were then taken by the hospital radiologist. These x-rays indicated an impacted fracture of the left femoral neck. Dr. Harper consulted Dr. Rankin, a general surgeon with whom he often worked; and on September 15, 1965, Dr. Rankin performed an operation which involved an open reduction and insertion of a Smith-Peterson nail. X-rays indicated good alignment and that the fracture had been properly reduced.

X-rays were taken thereafter at about two-week intervals. On October 26, 1965, the defendants, in consultation with the radiologist, noted some detachment or deterioration of the head of the femur. On November 17, 1965, the x-rays showed some further deterioration of this bone. Dr. Harper testified that the radiologist (who was not available to testify at the trial) indicated that there was some evidence of aseptic necrosis,¹ but “he felt that the thing that we should do is to wait and watch and see, because he felt that if aseptic necrosis were present, even though at this time he could not definitely diagnose it, it would not hurt anything to wait.” At that time, Mrs. Bryant was complaining about pain and Dr. Harper discussed this with Dr. Rankin and the radiologist. The radiologist stated that “[h]e saw no evidence of any infection of the joint. And he felt that we should wait, and in approximately a month to six weeks repeat the x-rays and see; and that if he were right about the aseptic necrosis, it certainly wasn’t going to hurt to wait this length of time.”

On January 3, 1966, x-rays disclosed “a little flattening of the head of the femur which is expected in avascular necrosis,” and all three doctors agreed on the diagnosis of avascular necrosis at that time. Mrs. Bryant was then advised that eventually this was going to require a further surgical procedure.

Mrs. Bryant indicated a desire to be transferred to the Columbia Medical Center at the University of Missouri and the transfer application was made. X-rays were again taken on January 13, 1966, and February 10, 1966, which, according to Dr. Rankin, showed no marked change except some further “destruction of the head in the superior or upper part of the hip bone.” Mrs. Bryant was admitted to the Columbia Medical Center on March 8, 1966..

Shortly after her admission to the Columbia Medical Center, x-rays were taken and Dr. Thomas Culley, an orthopedic surgeon, testified that the staff discussed possible diagnoses and thought that it could be an infection in the hip joint or “that it might be an avascular necrosis of the head of the femur, which is a reasonably common place complication of a fracture.” The Smith-Peterson nail was removed, and a biopsy and culture of the hip were performed which showed that Mrs. Bryant did in fact have a chronic, low-grade infection of a type rarely found in hip joints. She was then placed in a spica cast in hope that there would be a voluntary fusion of the hip joint. This cast was left on (although changed twice) until October, 1966, when the hope for a voluntary fusion was discarded and a bone graft was performed. This was also unsuccessful; and in March of 1967, a further operation was performed which was a resection of the femoral head, also referred to as a Girdle Stone Procedure. This amounted to the removal of the ball portion of the hip joint which allows the hip to ride out of the socket and results in a shortening of the leg. In June of 1969, further surgery was performed to correct a condition of her left foot resulting from the lengthy time her foot was in the cast. Plaintiff now has a permanent disability of her left leg and hip which leaves her left leg functionally disabled from 50% to 60% of normal.

The essence of Mrs.' Bryant’s cause of action against these two doctors is that they were negligent in failing to diagnose the low-grade infection, which she claims the jury could find was present in her hip in October and November of 1965 when the x-rays started to show some deterioration of the head of the femur. There is no question but what under the applicable Iowa law the failure to exercise skill, care, and attention in making a diagnosis may result in a determination of negligence on the part of a doctor.

“Malpractice may consist in lack of skill or care in diagnosis as well as in treatment. A patient is entitled to a thorough and careful examination such as his condition and attending circumstances will permit, with such diligence and methods of diagnosis as are usually approved and practiced by physicians of the same school of medicine, of ordinary learning, judgment and skill, under like circumstances and in like localities.” Wheatley v. Heideman, 251 Iowa 695, 102 N.W.2d 343, 349 (1960).

On the other hand, an error in diagnosis “will not support a verdict for damages unless there is evidence of lack of skill or care in making the examination or forming the doctor’s judgment.” Wilson v. Corbin, 241 Iowa 593, 41 N. W.2d 702, 706 (1950). Evidence of the required skill and care, which must be exercised by a physician, must be given by an expert witness unless the physician’s lack of care is so obvious as to be within the comprehension of the layman’s common knowledge or experience, or the physician injures a part of the body not under treatment.² Sinkey v. Surgical Associates, 186 N.W.2d 658, 660 (Iowa 1971); Grosjean v. Spencer, 258 Iowa 685, 140 N.W.2d 139, 143-144 (1966).

In the trial of this case, plaintiff offered no testimony as to what the standard of care under similar circumstances would be;³ no expert testimony that the defendants. Rankin and Harper violated any standard of care or that they were negligent in failing to make an alternative diagnosis of infection; and no expert testimony that the delay in making this diagnosis of infection contributed in any specific way to the ultimate disability of the plaintiff.

It is true that Dr. Rankin testified that if he had “felt there was an infection in the hip joint” he would have attempted to aspirate the hip joint to try to determine whether or not infection was present.⁴ He also testified that none of the classical or clinical signs of infection were present. Dr. Rankin chose to rely on clinical findings such as white blood corpuscle counts⁵ and lack of toxicity, swelling, or redness, lack of temperature elevation, together with the advice of his radiologist and his own experience of over thirty years, in making his diagnosis of an aseptic necrosis.⁶ If this was negligence, it most certainly did not amount to negligence “so obvious as to be within the comprehension of the layman’s common knowledge or experience.” Sinkey v. Surgical Associates, supra, 186 N.W.2d at 660. This is not a case of obvious lack of care comparable to dropping a part of a tooth into a patient’s lung; or failing to x-ray the proper portion of a patient’s lumbar vertebra; or puncturing a patient’s neck instead of her trachea.⁷ If the plaintiff in this ease was to make a submissible issue for the jury, it was incumbent upon her to establish that the failure of the defendants to make the diagnosis of infection, was negligent and a breach of the standard of care to be expected of surgeons and physicians under similar circumstances. She failed to produce any expert testimony that the attending physicians failed to use reasonable care and, as we have already noted, the conduct of these physicians was not so obviously negligent as to be within the comprehension of the layman’s common knowledge or experience. Her failure to offer such testimony justified the trial court in granting judgment n. o. v.

However, even assuming that Mrs. Bryant made an adequate showing of negligence to permit the trial court to submit the case to the jury, she completely failed to establish that her disability resulted from the failure of Dr. Rankin or Dr. Harper to correctly diagnose her condition and treat her for the infection. There was no evidence offered by the plaintiff to the effect that the disability would have been avoided or reduced by earlier diagnosis and treatment of the infection, although Dr. Litton did testify generally that “the sooner you find an infection, the better the chance there is of obtaining a good result.” This opinion was also expressed by Dr. Schnell.

Dr. Litton, the orthopedic surgeon at the Columbia Medical Center, testified that if the operation which was performed in March of 1966 had been performed as early as December of 1965, he doubted that the result would be any different.

Dr. Schnell, Mrs. Bryant’s expert witness, acknowledged that he could not say that the infection “was causally related to the destruction of the head of the femur and the neck of the femur.” He testified that he suspected that there was a possibility that this was “one of the causal factors of the change in the joint space and the femoral head as we see it in the x-ray.” He also testified that perhaps Dr. Rankin and Dr. Harper felt “this was a low grade infection, which, without systemic signs of infection: wound change, lack of change of white cell count, erythrocyte sedimentation rate, et cetera, that the body was controlling this infection, having limited it to the hip or femoral head, or both. Therefore, they would have expected the body to continue to control and eradicate the infection, without the use of antibiotics. I don’t know this, but this is suspect.” Dr. Schnell was then asked this question: “Doctor, do you have an opinion, based upon reasonable medical certainty, and based upon your qualifications and experience, and your review of those documents presented to you by plaintiff’s attorneys, whether the condition of Mrs. Jean Bryant would be any different today if in fact she had the hardware removed in January of 1966 and then she was placed in a spica cast in an attempt to — in an attempted voluntary fusion?” Dr. Schnell responded: “No, I think the end result could have been the same.” Later he acknowledged that his answer would probably be the same if similar treatment had been instituted in December of 1965.

In Iowa, the issue of proximate cause is ordinarily for the jury where there is substantial evidence of a defendant’s negligence. Wilson v. Corbin, supra, 41 N.W.2d at 708. But the evidence adduced by the plaintiff must show that “plaintiff’s theory is reasonably probable, not merely possible, and more probable than any other theory based thereon. It is not necessary that the proof be conclusive or exclude every other suggested or possible cause.” Stickleman v. Synhorst, supra, 52 N.W. at 507.

In this case, the evidence may have shown that it was possible that the failure to diagnose and treat the infection contributed to the disability of Mrs. Bryant, but it certainly could not be interpreted as haying shown that it was reasonably probable or “more probable than any other theory” to have been the cause of Mrs. Bryant’s condition.

In Barnes v. Bovenmeyer, 255 Iowa 220, 122 N.W.2d 312, 316-317 (1963), the Iowa Supreme Court made it clear that proof of negligence alone does not entitle a plaintiff to go to a jury in a malpractice case. “There must also be substantial .evidence that it was the proximate cause of plaintiff’s damage.” See also Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 498-499 (1928).

We conclude that Mrs. Bryant failed to produce substantial evidence that the alleged negligence was the proximate cause of her damage and the judgment n. o. v. was properly granted for that additional reason.

Judgment affirmed.

1 . Aseptic necrosis, in this case, refers to dead bone resulting from loss of blood supply. Apparently avascular necrosis is used interchangeably with aseptic necrosis. Septic necrosis refers to dead bone caused by infection.

2 . See e. g., Wheatley v. Heideman, 251 Iowa 695, 102 N.W.2d 343 (1960) (ostepath failed to observe cut eye in treating lacerated eyelid); Stickleman v. Synhorst, 243 Iowa 872, 52 N.W.2d 504 (1952) (doctor admitted that he made a mistake by missing trachea and puncturing throat with a hypodermic needle); Wilson v. Corbin, 241 Iowa 593, 41 N.W. 2d 702 (1950) (although plaintiff fell twelve to fourteen feet and landed in a sitting position, only his pelvis and fourth and fifth lumbar vertebrae were x-rayed, and thus the compression fracture to the third lumbar vertebra was not diagnosed) ; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425 (1940) (res ipsa loquitur was applied where dentist caused the root of a tooth to pass into plaintiff’s lung); Kopecky v. Hasek Bros., 180 Iowa 45, 162 N.W. 828 (1917) (dentist punctured root of tooth in drilling, yet filled tooth regardless).

3 . Dr. Schnell, an expert witness for the plaintiff, testified that he was familiar with the general standard of care practiced by physicians and surgeons in towns the size of Keokuk, Iowa, and throughout the State of Iowa, but was not asked to define that standard of care.

4 . Dr. Litton of the Columbia Medical Center testified that it would have been more difficult to successfully aspirate in this case because Mrs. Bryant was a large person; that he was not positive such a procedure would have produced a culture; that where' there are “clinical findings of no temperature elevation, no abnormal white blood count, no evidence of infection around the incision, no toxicity, and no tenderness by that site,” “[i]t would make the possibility of infection very small. . . that in cases involving fractures of the femoral neck about 30% of them develop avascular necrosis; and that it was possible to have pain associated with an avascular necrosis condition. Dr. Schnell also stated that pain could be present with an aseptic necrosis, but that it would be greater with a septic necrosis.

5 . As late as January 12, 1966, the plaintiff had a normal white blood corpuscle count of 9300.

6 . Dr. Culley, who treated plaintiff at the Columbia Medical Center, testified that there was nothing to indicate that the treatment of the plaintiff by Dr. Harper and Dr. Rankin “was not adequate or medically proper in any way.”

7 . In Sinkey v. Surgical Associates, supra, 186 N.W.2d at 661, the Iowa Supreme Court made this observation in a case involving the interpretation of x-rays:

“We cannot agree with appellant’s contention that this is an appropriate case to apply this exception to the general rule requiring proof by expert testimony. The cases where we have indicated the exception might apply have all been cases where something drastic was wrong with the diagnosis or the treatment.”