White v. Burton

I cannot concur in the conclusion announced by a majority of my associates. As I view this case, the error of the result announced lies in the analysis of the evidence and the probative force given to the opinion evidence of expert witnesses.

A child of tender years has a broken leg, the disconnected bones of the lower limb having failed to unite after long and unsuccessful surgical treatment. Her condition presents a strong claim to sympathy which is calculated to divert the mind from the impersonal rules of law and the dictates of balanced justice by which our judgment should be guided. She, through her father as next friend, is, in this litigation, seeking to attribute her present unfortunate condition to the failure of the physician and surgeon who first treated her to exercise ordinary care in the treatment administered.

Her case was tried to a jury in the district court of Tulsa county and resulted in a verdict and judgment in her favor for the sum of $7,500, from which the surgeon, N. Stuart White, appeals.

The majority opinion declares, and I agree, that the serious question in this case is whether plaintiff's condition ofpermanent nonunion of the bones of her log is in any wise attributable to alleged negligence on the part of the defendant in diagnosis and treatment of plaintiff. The majority opinion rightly declares that the issue thus drawn is one of fact, and that the nature of the fact, that is, the cause of the non-union, is such as to require the testimony of skilled and professional men. Since the case is one at law for the recovery of money, and the issue one of fact, our task ends if in reviewing the evidence there is in the record before us any competent proof tending to establish, first, negligence on the part of the defendant; second, a causal connection between that negligence and the condition complained of by the plaintiff.

On the question of whether there was negligence in the diagnosis or the manner of treatment, eight doctors, including those who had personally examined and treated the child, testified, in substance, that the treatment administered, as outlined by the defendant and corroborated by the observation of others, was in accord with established practice in the surgical world. Opposed to this testimony, two doctors who had never seen or examined the patient testified, in substance, in response to hypothetical and general questions, that the treatment administered was not in accord with the best practice and did not constitute the exercise of proper care.

Bearing upon the question of primary negligence, the plaintiff also introduced proof to the effect that the defendant surgeon did not treat or diagnose the patient's injury in the exact manner described by him. There was thus some conflict in the evidence as to the correctness of the preliminary or first diagnosis and the precise treatment administered, as well as a dispute upon the propriety and appropriateness of the treatment.

While the great weight of the evidence on these matters, especially the medical testimony, favors the defendant, I conclude, as do my associates, that there was sufficient evidence of primary negligence to go to the jury, if that issue alone were determinative of the result. But it is not. The fatal weakness of plaintiff's case lies in the absence of competent evidence to establish a causal connection between the alleged negligence and the result complained of.

The two doctors who appeared as witnesses for the plaintiff testified, in substance, in response to hypothetical questions, that had a different treatment been administered, there would have been a union of the bones. But the hypothetical question which called forth this opinion evidence assumed a normal childas the patient, and failed to take into consideration theundisputed fact that there existed in this particular patient a congenital condition which, independent of the treatment administered or the diagnosis made, prevented a union of the broken bone.

I am aware that this court has, and I believe rightly so, been very liberal in approving the discretion of trial courts in the form of hypothetical questions permitted to be used in the trial of cases. Chicago, R.I. G. Ry. Co. v. Bentley,43 Okla. 469, 143 P. 179; Shawnee Gas Elec. Co. v. Hunt,32 Okla. 368, 122 P. 673; Mead Brothers, Inc., v. Watts,135 Okla. 23, 273 P. 207. And it is not essential that a hypothetical question embrace all of the facts proven. Chicago, R.I. G. Ry. Co. v. Bentley, supra. However, the probative value of the conclusion announced in response to a hypothetical question depends upon the facts embodied in the question. Thus the testimony of the plaintiff's medical witnesses to the effect that there would have been a union of the broken bones in a child if the treatment outlined by them had been administered cannot be taken as having any probative weight in this case if in this case it is established by uncontradicted evidence that a congenital condition existed which prevented the union. This absence of probative effect is due to the fact that the existence of such a condition was not suggested as delineated in the hypothetical question asked of plaintiff's medical witnesses.

On the other hand, the doctors who had personally examined plaintiff were all certain that such a congenital condition did exist in this particular case, and that it prevented the union of plaintiff's broken bones. They were also certain that even if a different treatment had been administered, the union would have failed.

In an effort to remedy the condition, this child plaintiff was sent to Mayo Clinic. Dr. Melvin S. Henderson, an outstanding authority and bone specialist, had charge of the treatment there administered. His testimony, brought into this case by deposition, is illustrative of the undisputed medical testimony to the effect that this child was suffering from a congenital condition which prevented union of the broken bones. I quote in part:

"Q. What was your diagnosis of the case? A. Our diagnosis was nonunion of congenital origin of the left tibia and fibula. Q. Will you explain the term 'nonunion of congenital origin'? A. We use the term 'congenital' meaning that the child was born with something abnormal about the left tibia. The history as we obtained it showed that there had been some bowing of the tibia noticed about the twelfth month. Q. You were in consultation with Dr. Helmholz? A. Yes, I saw the child. Q. Could you state in simple terms what your explanation of the condition was? A. I believe that this fracture was due primarily to congenital defect in this child's tibia. Q. That is to say, a defect existing from birth? A. Yes. Q. What would the nature of that defect be? A. The exact nature of the defect we do not know any more than we know what causes clubfeet and other malformations, but we do know this type of fracture I am describing occurs as a result of congenital malformation or disease, or whatever you choose to call it, in the bone. A contributing factor is trauma but the primary cause is the condition of the bone. Q. By trauma you mean injury? A. Yes. Q. Does this type of fracture occur in a normal tibia with a history of a fall such as was given you? A. No, it does not."

And:

"Q. Now, doctor, at the time the child came to you, you stated you found a condition of nonunion. I am not certain that I asked you whether, based on your examination of the child at that time and on the history given you by her parents, you had an opinion as to the cause of the nonunion. Have you such an opinion? A. Yes. Q. What is your opinion? A. My opinion is that this was an ununited fracture, or, as we call it, nonunion of infancy of the congenital type. The fracture was at the juncture of the middle and lower third of the left tibia, which is the usual site for this type of non-union."

And:

"Q. In the ordinary course of events, if the graft was to unite at both ends, would it have done so in that period of time, doctor? A. Yes. Q. Did that indicate to you as a surgeon anything in regard to the reduction for nonunion? A. Yes. Q. What did it indicate? A. It indicated to me that we were dealing with a congenital type of nonunion that I know from experience to be very resistant to all treatment."

And:

"Q. Regardless of the prior treatment and whether it was the best treatment in the world or not, in your opinion, doctor, would this particular type of fracture have resulted in nonunion? A. In my opinion this type would result in nonunionin spite of any treatment."

The positive opinion of this doctor as given in the answer last above quoted is in line with all other medical testimony in this case. It is undisputed. The hypothetical questions which plaintiff's counsel asked their medical witnesses, who did not examine the child, did not (as I have previously pointed out) include the important element of a congenital condition.

This deficiency in the medical testimony produced was recognized by one of plaintiff's own doctors, who wrote the following letter relative to the testimony given by him in the depositions. The letter was admitted in evidence and reads:

"Oklahoma City, Oklahoma.

"March 31, 1934

"Searcy Underwood Attys at law "Exchange National Bank Building "Tulsa, Oklahoma.

"Dear Sirs:

"This is to advise you that I have just completed the reading of the deposition, recently taken in Oklahoma City in the case of Geraldine Burton v. Drs. White and McDonald, and after due consideration I have come to the conclusion that not having had an opportunity to see and examine the patient (plaintiff) in person, and not having a complete history of the case, I have decided that an injustice might be done the defendants if the deposition should be used in the case. To further illustrate, certain questions were asked me by counsel for the defendants, for example: if I knew that a transfusion for anemia had been advised for Geraldine Burton; if I knew that a specialist had been consulted for her concerning rickets; if I knew that she had been confined in a hospital prior to the injury. As the records stand, these questions are uncontradicted. If they are true, this would change my opinion in the case. There are some errors in the record which I have not taken the time to correct, as I am returning the deposition to Mr. Redrick unsigned. I do not desire to have the deposition used under the circumstances. Respectfully submitted. C.C. Shaw, M.D. Copies to Dr. White Dr. McDonald."

The opinion evidence of the plaintiff was therefore wanting in probative force necessary to present a conflict in the evidence as to a causal connection between the alleged negligence of the defendant and the present condition of the plaintiff of which complaint is made.

Dealing with a somewhat analogous point in Ballaine v. Drake,98 Okla. 217, 224 P. 947, we said in paragraph 1 of the syllabus:

"In order to recover damages from a physician or surgeon for want of proper care and skill, the burden is upon the plaintiff to show: First, that the defendant was unskillful or negligent; second, that the injury complained of was produced by his want of skill or care."

And in the body of the opinion we stated:

"In order for the plaintiff to recover in this case it is absolutely essential to be shown that two conditions existed: First, that the plaintiff suffered legal detriment and damages; second, that such detriment or damages is not referable solely to the accident with which she met. But it must be shown on her part that considering the accident which she suffered, and the defendant's employment as a physician, she is left in a worse condition than she had a right to expect. There is nothing in the evidence tending to show that any character of treatment would have effected a cure of this arm, or that any mode of treatment would have procured better results. It is true that upon the trial she proved that the arm was useless, but there was no attempt to show that this condition was due to the lack of skillful treatment or that there was any treatment known to the science of medicine or surgery that would have relieved the situation. In the last analysis the plaintiff's case amounts to this: she received the injury, employed a physician, and failed to recover. The jury could not say from the evidence in this case whether the condition of the plaintiff's arm was due to the character of the injury, or to the want of skill and care in treating it. And as said by Judge Taft in Ewing v. Goode, 78 F. 442: 'If there is no injury caused by lack of skill or care, then there is no breach of the physician's obligation, and there can be no recovery.'

"In order to recover damages from a physician for want of proper care and skill, the plaintiff has the burden of showing that the defendant was unskillful or negligent and that the injury complained of was produced by such want of skill or care. In the case at bar there is a total failure of any evidence tending to show that the plaintiff has suffered injury by reason of the alleged negligence or want of skill on the part of the defendant. From the conclusion we have reached it will be unnecessary to discuss the other assignments of error."

In Kernodle v. Elder, 23 Okla. 743, 102 P. 138, it was stated in paragraph 1 of the syllabus:

"In an action against a physician for malpractice in the setting and treatment of a fractured limb, where there is no guaranty of cure or contract for extraordinary skill or care, and where the evidence fails to show that the results are not such as usually and ordinarily result in such cases where treated by an ordinarily skillful physician using ordinary care, then there is a failure of proof, and plaintiff is not entitled to recover."

Dealing with a somewhat analogous situation, the Supreme Court of Orgeon said in the case of Doumitt v. Diemer,23 P.2d 918:

"We find no contradiction of this testimony and think the court was warranted in finding that there was no evidence upon which the court or jury could say that the scar, of which plaintiff complained, was the result of the X-ray treatment. The testimony developed that the breaking down of the tubercular glands would itself cause a scar, regardless of the X-ray treatments, and whether this came from the administration of the X-ray treatments or whether it came from the disease of tubercular glands was left wholly to speculation and conjecture.

"In a case where the testimony shows plainly that there are two or more causes, for one of which the defendant is liable and the other he is not, and the matter is left to mere speculation and guess, the case should not be submitted to the jury. Merriam v. Hamilton. 64 Or. 476, 130 P. 406; Spain v. Oregon-Washington R. N. Co., 78 Or. 355, 369, 153 P. 470, 475. Ann. Cas. 1917E, 1104; Lippold v. Kidd, 126 Or. 160, 169,269 P. 210, 59 A. L. R. 875. In Merriam v. Hamilton, supra, the rule was announced in a malpractice case, as shown by the syllabus, as follows: 'Where there are two possible causes of an injury, for one of which defendant is not responsible, plaintiff to recover must show that the injury was wholly or partly the result of the cause for which defendant was liable, and, if the evidence leaves it as probable that the injury was the result of one cause as much as the other, he cannot recover.'

"In Spain v. Oregon-Washington R. N. Co., supra, plaintiff had been thrown in jail at Huntington, Ore. He had had his arm amputated before that, and after his release from jail infection set in, and it was claimed the filthy condition of the jail caused the infection. The testimony developed that it might have come from this cause, but that it might have also come from other causes. The court held: 'When the evidence leaves the case in such a situation that the jury will be required to speculate and guess which of several possible causes occasioned the injury, that part of the case should be withdrawn from their consideration. Armstrong v. Town of Cosmopolis, 32 Wn. 110, 72 P. 1038.' "

In view of the evidence as analyzed and the foregoing authorities applicable to this action, it is my judgment that the trial court erred in denying defendant's motion at the close of the evidence for a directed verdict.