Shirey v. Schlemmer

Smith, J.

— This action was brought by the appellant, John L. Shirey, against the appellee, George H. Schlemmer, to recover damages for alleged malpractice in connection with the treatment of a fracture of appellant’s left arm. The treatment of the appellant by the appellee extended over a period from April 23, 1960 to October 28, 1960, at Murphy Medical Center in Warsaw, Indiana.

The issues were formed upon the filing of appellant’s complaint. The complaint is as follows:

“Plaintiff complains of defendant and for cause of action says:

“1. That at all times herein involved defendant was a physician and surgeon engaged in the practice of his profession at the city of Warsaw, Kosciusko County, Indiana.

“2. That on the 23rd day of April, 1960, the plaintiff broke and fractured both bones of his left arm approximately two inches above the wrist and on said day employed said defendant as such physician and surgeon to attend plaintiff and said defendant did undertake to set said broken bones in their proper places and to attend on and treat plaintiff until he should be cured.

“3. That defendant wholly failed to use due and proper care of skill in the treatment of plaintiff but conducted himself unskillfully and negligently in the following particulars, to-wit:

“ (a) Did improperly splint said bones and did not put the arm in a case to immobilize same.

“(b) Did allow said plates to remain when x-ray pictures taken after the operation and subsequent thereto did indicate that said bones were angulated and crooked.

“(c) Did allow said plates to remain when plaintiff did complain to defendant his arm was swelling and not healing properly and that the bones were grating and causing him pain.

“ (d) Did allow said plates to remain when x-ray pictures did reveal that the bones were not healing and forming the desired union.

“ (e) Did allow said plates to remain after six months had passed and the bones appeared to be angulated and not knitting properly.

“ (f) Did tell plaintiff in October, 1960 that the breaks had grown together and that he would soon recover the use of his arm, when in fact the bones had not grown together, and the arm was still bending and swelling at the breaks and causing plaintiff much pain.

“(g) Did not use due and proper care or skill in that, although the condition of plaintiff’s arm did not improve, he failed to advise plaintiff of the possibility or probability of obtaining better results from treatment by a specialist, and he failed to call such specialist in consultation or refer plaintiff to such specialist.

“4. Plaintiff did rely on defendant to properly perform under said contract.

“5. That by reason of said unskillful and negligent conduct of the defendant, it was necessary for plaintiff to consult another doctor who in turn referred plaintiff to a specialist, an orthopedic surgeon, who found that the bones were not knitting properly and found it necessary to operate on plaintiff’s arm on March 1, 1961 and to remove the plates placed thereon by the defendant, and to perform a dual type bone graft to the large bone, taking the bone for such graft from the left tibia bone in the left leg of the plaintiff, and to place the arm in a cast.

“6. That further by reason of said unskillful and negligent conduct of the defendant, it was necessary for said specialist, an orthopedic surgeon, to remove approximately iy%' of the left small bone above the wrist and to excise same because that portion of bone had decayed.

“7. That further by reason of said unskillful and negligent conduct of the defendant, the plaintiff has lost the use of iy%' of the left small bone above the wrist and does have a permanent partial impairment in the function of the left arm as a result of this condition of approximately 20%.

“8. That further by reason of said unskillful and negligent conduct of the defendant, the plaintiff has been hospitalized sixteen days and has incurred hospital and medical bills in the total amount of $1,144.70.

“9. That further by reason of said unskillful and negligent conduct of the defendant, plaintiff was unable to fully attend to his business of farming and trucking for a period of six months and has had to employ others to perform in his stead, costing the plaintiff the sum of $2,641.50 and that he has lost services in the amount of $10,000.00.

‘TO. That further by reason of said unskillful and negligent conduct of the defendant, the plaintiff has been caused much pain and suffering.

WHEREFORE, plaintiff demands judgment against defendant for $75,000.00 and for all other and proper relief.”

The defendant-appellee answered the above complaint and trial was had thereon. At the close of the evidence, the jury found for the defendant, and the court rendered judgment on the verdict. The appellant filed a motion for a new trial which motion was denied; and he now assigns such as error.

Appellant specifically claims that the negative judgment is not supported by the evidence presented at trial. He argues that the evidence clearly shows that the appellee, Dr. Schlemmer, did not follow medical procedures established for the area of northern Indiana in the treatment of appellant’s fractured arm. Instead of using a full arm cast to completely immobilize the arm, the appellee only partially immobilized the arm by the use of a metal splint and bandage covering the wrist and forearm. The appellant introduced testimony by a medical expert to show that a normal fracture heals in ten (10) weeks, whereas the appellee allowed the appellant’s arm to remain unattended and unhealed for six (6) months. The appellee told the appellant to squeeze a ball and carry a purse containing sand to stimulate the circulation and healing of the arm, and again the appellant alleges that such instruction were medically improper.

The remaining errors asserted by the appellant as grounds for reversing the lower court’s judgment pertain to appellee’s instructions and the objections thereto, Nos. 3, 4, 5, 7, 9, 16, 18, 20, 21, 23, 24, 25, 26, 31 and 32.

It is the opinion of this Court that the trial court should not have tendered the appellee’s instructions Nos. 3, 4, 5 and 7 to the jury. These instructions withdrew from the jury specification B, C, D, and F of paragraph 3 of the appellant’s complaint which alleged in substance that the appellee failed to properly treat the arm in accordance with good medical practice in the area of northern Indiana. It is evident from an examination of the record that there was sufficient evidence to support all four of the allegations of negligence withdrawn from the jury by the court, and the giving of the appellee’s instructions Nos. 3, 4, 5 and 7 was prejudicial to the appellant. Norwalk Truck Line Co. v. Kostka (1950), 120 Ind. App. 383, 88 N. E. 2d 799.

A physician or surgeon is required to possess and exercise that degree of skill and learning possessed by the other members of his profession in good standing in his community. A physician holding himself out as a specialist is held to a standard of special skill and knowledge. We are of the opinion that in either capacity the appellee in the case at bar was negligent in allowing the appellant’s arm to deteriorate without taking affirmative steps to induce or speed up the healing process. Where the exercise of proper skill or care on the part of the physician is in issue, expert medical testimony ordinarily is essential, but expert evidence is not required where the treatment or the results thereof are of such character as to warrant an inference of want of care by a person of ordinary sense and judgment. Physicians and Surgeons, 23 I.L.E. § 20, p. 208.

There was testimony that after six (6) months of treatment the appellant’s fractured arm had not begun to heal. The appellee was made aware of the lack of bony union by the x-rays he possessed, and yet at the end of six months he had refused to change his procedure and continued to prescribe a “wait and see” or “sit tight” treatment. Even lacking knowledge of what should be done, an ordinary person could perceive that under these circumstances something should be done.

The appellant also maintains that the trial court erred in giving the appellee’s remaining instructions to the jury, since such were not supported by the evidence. The giving of instructions on an issue under the above circumstances is reversible error only when the verdict of the jury may have been predicated upon such instructions thus resulting in prejudice to the other party. Kahler v. Cain et al (1943), 222 Ind. 330, 53 N. E. 2d 769. We cannot say that the jurors would have arrived at a different verdict if the appellee’s instructions had not been given and therefore are reticent to hold that the error was prejudicial to the appellant’s cause.

Having found that probative evidence of the appellee’s negligence existed in the record, and that the trial court erred in withdrawing this issue of negligence from the jury, we must next examine the issue of the appellant’s contributory negligence. We must decide whether there is evidence of contributory negligence, and if so, whether such contributed to the appellant’s injuries.

The general rules with respect to the effect of contributory negligence on the right to recover for personal injuries apply in actions for injuries alleged to have been caused by the malpractice of a physician or surgeon. Where negligence on the part of the patient proximately contributes to the injury complained of, there can be no recovery. Young v. Mason (1893), 8 Ind. App. 264, 35 N. E. 521; Lower v. Franks (1888), 115 Ind. 334, 17 N. E. 630.

The following testimony is somewhat conclusive evidence that the appellant not only failed to follow Dr. Schlemmer’s instructions, but he also attempted to use his fractured arm in a negligent manner which most likely contributed to its failure to heal properly. The appellant gave the following answers to questions propounded to him by the appellee’s attorney:

“Q. Never lifted anything heavy?

“A. No, I couldn’t. It was impossible, even when I carried a fifty-pound bag of fertilizer I had to put this arm under the middle of the bag; I couldn’t carry it with my arm.

“Q. Did you try to?

“A. Yes, but there wasn’t enough grip there to do it.

“Q. Did you try to carry it with your left arm under the sack when you attempted to carry it?

“A. You couldn’t carry a sack like that.

“Q. Did you try to?

“A. Well, I made various attempts to but just couldn’t.”

And from the cross-examination of Mr. John Shirey:

“Q. Up until that time had he told you not to use your arm ?

“A. I think that was the instruction, yes.”

There is also a rather lengthy lapse of time between the discharge of the appellee and the treatment by the appellant’s second surgeon, Dr. Stauffer. The appellant discharged the appellee on October 28, 1960, but did not seek treatment from another doctor until January of 1961. This interval of time in which the appellant received no treatment for his fractured arm certainly did not improve the arm’s chances of healing properly.

The appellant has urged that the verdict is not sustained by sufficient evidence and is contrary to law. We do not weigh the evidence and substitute our judgment for that of the jury or trial court. If there is evidence to support the verdict of the jury, we do not reverse on an assignment of the appellant that the verdict of the jury is contrary to law unless it is shown that reasonable men could not have arrived at the same verdict or judgment. Gaut et al v. Gaut, Administratrix, Etc. (1963), 134 Ind. App. 317, 187 N. E. 2d 580.

We do not know what evidence the jury considered in reaching their verdict, nor can we penetrate the trial court’s process to discover the basis of their judgment, but we can and do decide that considering the evidence most favorable to the appellee, the trial court’s judgment must be affirmed. The error, if any, cannot overcome the negligence of the appellant, nor can the possible prejudice cast upon the jury overcome the correct result it reached. The cause was fairly tried on its merits and a right result reached. Sheets v. Garringer (1963), 135 Ind. App. 488, 194 N. E. 2d 757.

We are of the opinion that the trial court did not err in overruling appellant’s motion for a new trial.

Judgment affirmed.

Pfaff, P. J., and Cook, J., concur.

Bierly, J., dissents without opinion.