McGulpin v. Bessmer

Garfield, J.

The first count of plaintiff’s amended petition charges defendants, Drs. Bessmer and Middleton, and their employee, Dr. Spang, with want of due care, skill and knowledge in treating varicose veins in plaintiff’s leg, resulting in gangrene and amputation of the leg. The second count alleges defendants and Dr. Spang, following an operation on plaintiff’s leg, abandoned and without cause failed to treat him, so amputation of the leg was necessary.

A separate count in a supplemental petition alleges Dr, Spang, without due care and skill and by a gross technical error, mistakenly ligated and cut the artery in plaintiff’s leg instead of the vein-, this cut the blood supply to the leg, resulted in gangrene and subsequent amputation.

Defendants’ answer admits Dr. Spang was their employee *1122and that he performed a ligation operation on the vein of plaintiff’s leg bnt denies other allegations of plaintiff.

At the conclusion of plaintiff’s evidence a verdict for defendants was directed on the grounds “the record fails to show any standard of skill or diligence customarily used in Davenport or similar localities or that defendants did not exercise that degree of skill and diligence that was standard in this community and fails to show any negligence.” The court ruled there might be a question whether defendants abandoned plaintiff but such .abandonment was not the proximate cause of amputation since the necessity of amputation had been determined on June 22 and since it was ten days after plaintiff was removed to Iowa City before the doctors there deemed amputation proper. The court also ruled the doctrine res ipsa loquitur did not apply to the facts under consideration.

Of course plaintiff is entitled to the most favorable construction of which the evidence is fairly susceptible. Wilson v. Corbin, 241 Iowa 593, 596, 41 N.W.2d 702, 704, and citations.

On May 25, 1939, plaintiff, a machinist then fifty-five, went to the office of defendants in Davenport and asked for injections for varicose veins in his legs. He went to defendants because he had been told they were the big industrial doctors there and were specialists. On plaintiff’s second visit Dr. Bessmer, whom plaintiff wanted to see, turned him over to Dr. Spang, a young assistant in defendants’ office, with the assurance Dr. Spang was an expert on treatment of varicose veins.

Dr. Spang told plaintiff the injection method was obsolete, futile and endless and the modern method was ligation by which an incision was made in each groin, the veins were tied at the knees and taken out. To plaintiff’s inquiry whether such an operation was dangerous Dr. Spang assured him, “Hell no, we can do it in 15 minutes in the office.” Plaintiff asked if he would lose time from work and was told he would not.

As directed, plaintiff returned to defendants’ office the next day and was then instructed to report the following morning to Mercy Hospital. Plaintiff objected to going to a hospital but Dr. Spang said, “Don’t be foolish. You won’t have to stay there over a half hour and can go home and about your business.” Actually, the operation on June 9, 1939, on only one leg “started *1123about 9 or 9 :30 and it was after 12 when completed.” When the outer vein had been removed from plaintiff’s right leg Dr. Spang announced, “We had better let the other leg go until we see how this turns out.” He said “he didn’t know how it was going to turn out. Maybe I am in an awful fix.” This prophesy proved more accurate than Dr. Spang’s previous assurances.

Dr. Spang then told plaintiff he could not go home till mid-afternoon. A few minutes later the doctor said, “Now that we have you here we are going to keep you.” Plaintiff was kept in the hospital four days and then taken home on a stretcher. “Before I got home my leg was a little blue and swelling. * * * After I got home the whole foot turned black. I was in such misery I couldn’t stand it and my wife called the doctor.” Dr. Spang then called on plaintiff almost daily and after a week at home on June 20 ordered plaintiff’s return to the hospital in an ambulance.

On June 22 Dr. Bessmer told plaintiff, “We are going to have to take that foot off right arna/y.” When plaintiff went “up in the air” and accused Dr. Bessmer of making him a cripple the doctor made no denial of the charge but assured plaintiff he. (Bessmer) would see that plaintiff got steady work at French & Hecht’s. “At that time he also promised me an artificial foot.” After June 23 neither defendants nor Dr. Spang saw plaintiff again. There is no explanation of this.

Before defendants last saw their patient and thereafter his leg had turned purple, and in places black with white strings through it. It “was swollen quite'a bit” and felt like it was on fire. Plaintiff could scarcely endure the pain and frequent “hypos” were necessary. On June 27 the county doctor, whom plaintiff did not know, evidently felt sorry for plaintiff and arranged for him to be taken to the State University Hospital at Iowa City where his leg was amputated on July 7 below the knee and on July 27 at mid-thigh. He was released from the University Hospital August 13.

Amputation of the leg was necessary because of gangrene causéd by occlusion (blocking) of the femoral artery which carries blood to the leg. The evidence shows there are four possible causes of such occlusion:

*11241) Ligation (tying) of the artery (not the vein);

2) Injury to the artery (Dr. Fowler refers to this as spasm due to injury);

3) Embolism (a floating clot) in the artery; and

4) Thrombosis (stationary clot) in the artery.

Dr. Dorner (who performed both amputations) and Dr. Fowler testify embolism probably did not cause this occlusion. There is no contrary testimony. Dr. Fowler says:

“As to how a thrombus would occur in an artery when you are operating on the vein, I would say if the artery was damaged at the time the patient was operated on a thrombus might be formed. As to any other way it could be caused I would say, very rarely — once or twice in three or four thousand operations. # # * There is usually a history of trauma in connection with thrombus because * * *. A blood clot in an artery in this kind of case is rare. A clot in the vein is rather common.”

It is true Dr. Fowler would not say for a certainty that if a thrombus caused the occlusion it was traumatic in origin.

Dr. Dorner testified, “I would say the probability of thrombosis occurring in a femoral artery after saphenous vein ligation is quite rare.” This evidently refers to thrombosis as a coincidence, unaccompanied by prior injury to the artery.

The jury could properly find the occlusion of the artery which produced gangrene in plaintiff’s leg was caused either by ligation of the artery as a result of mistake or injury thereto during the operation by Dr. Spang when “there were black and blue finger marks up and down my thigh and it felt like he was tearing the whole inside of the leg out.”

Dr. Domer says, “There is a distinct difference between the artery and the vein so that one should be able to identify the difference.” As stated, the artery carries blood to the leg. The veins return blood from the leg to the heart. Dr. Dorner also testified, “Gangrene does not normally follow from such an operation.” It is true Dr. Dorner was unwilling to say for certain what caused the occlusion of plaintiff’s artery.

I. Plaintiff argues the trial court erred in not applying the doctrine of res ipsa loquitur. Paragraph 7 of Count I of plaintiff’s amended petition contains specific charges of negli*1125gence. We have held res ipsa loquitur may not be invoked in aid of such charges. Eaves v. City of Ottumwa, 240 Iowa 956, 972, 38 N.W.2d 761, 770, 11 A. L. R.2d 1164, 1178, and citations.

As stated, a separate count in a supplemental petition alleges the gangrene in plaintiff’s leg resulted from Dr. Spang’s negligent and unskillful act in ligating the artery rather than the vein. As eminent counsel for defendants seem to concede in Division I of their argument, this is a general charge of negligence and if there is evidence Dr. Spang mistakenly ligated the artery rather than the vein plaintiff would be entitled to the benefit of res ipsa loquitur in support of this charge. See Whetstine v. Moravec, 228 Iowa 352, 374-382, 291 N.W. 425, and citations. Defendants concede these decisions are in point if the artery were ligated: “These cases would be in point only if it had been established Dr. Spang had severed the artery while working on the vein. * * * Given proof the artery was severed the want of care and skill can be inferred 0 * ®.”

II. Since there should be a reversal because of failure to submit the charge of abandonment and since the evidence upon a retrial may be different, it is perháps unnecessary to pass on the sufficiency of the evidence to warrant submission to the jury of plaintiff’s claim aside from abandonment. It may be conceded the evidence is not strong. But it seems sufficient, in the absence of explanation from defendants, for submission to the jury.

As stated, a finding would be warranted that the cause of the gangrene was either mistaken ligation of the artery, or injury thereto, by Dr. Spang. One of these causes, both chargeable to Dr. Spang, seems probable, not merely possible, and more probable than any other cause based on the evidence. It is not necessary the proof be conclusive or exclude every other suggested or possible cause. Bartholomew v. Butts, 232 Iowa 776, 783, 5 N.W.2d 7, 11, and citations; Woronka v. Sewall, 320 Mass. 362, 69 N.E.2d 581, 582, 583, and citations.

It is clear that if the artery rather than the vein was ligated a finding of negligence in so doing would be proper. Defendants do not argue otherwise. That injury to the artery in the course of removing the vein was the result of lack of care or skill is perhaps not so plain. But such a finding would also seem justified. Dr. Bessmer’s failure to deny plaintiff’s charge *1126that defendants made him a cripple and his assurance he would see plaintiff got steady work and furnish him an artificial foot is in the nature of an admission which aids plaintiff’s case.

Whetstine v. Moravec, supra, 228 Iowa 352, 361, 365, 291 N.W. 425, 429, holds defendant’s statement, “we will see you through all this,” was an admission which lends some assistance to plaintiff. Admissions of a physician, when not mere statements of regret or sympathy, are sufficient in themselves to take a case of this kind to the jury. Woronka v. Sewall, supra, 320 Mass. 362, 69 N.E.2d 581.

III. The claim defendants abandoned plaintiff should have been submitted to the jury. It is undisputed that about nine a.m. on June 22 Dr. Bessmer told plaintiff, in the hospital under defendants’ care, “We are going to have to take that foot off right awdy. * * * You let me take that foot off as far as the knee joint, and with an artificial foot you will be able to work, and I will see that you get steady work at French & Hecht’s¡” Plaintiff further says, “When he talked to me that morning he said he was going to take the foot off. * * * he also promised me an artificial foot, and I said ‘Well, regardless of promises, I suppose if the foot has to, it has got to come off.’ ”

So far as shown, neither defendants nor Dr. Spang ever retracted the above statement. Plaintiff testifies, “I did not see him [Dr. Bessmer] after the 23d. # * * Between the 23d and 27th I did not see Drs. Spang, Middleton or Bessmer. I had not dismissed them or permitted them to substitute any doctor in their place and was willing to continue their treatments.”

Dr. Bessmer’s statement, in the light most favorable to plaintiff, is substantial evidence of plaintiff’s critical condition and the propriety and urgent necessity of immediate amputation of the foot. Further, it is an assurance plaintiff would be able to work steadily if his foot and perhaps part of the leg were then amputated below the knee joint. Dr. Bessmer’s statement fairly implies that if the foot were amputated below the knee joint “right away” further amputation would be unnecessary.

There is no explanation for the failure of Drs. Bessmer and Spang to see plaintiff after June 23d. And nothing was done, to remove the foot on the 23d. Plaintiff told the county doctor *1127on June 27, “You can’t seem to get hold of those doctors [defendants and Dr. Spang], My wife has called them up.”

The finding is warranted plaintiff was not taken to the University Hospital in Iowa City until he had reason to feel defendants had discontinued treating him. Plaintiff was in almost unbearable pain and naturally believed from Dr. Bessmer’s statement an immediate operation was necessary. He was under no duty to wait indefinitely for defendants to give him attention. Afler plaintiff was taken to Iowa City it was necessary to amputate not only the foot but the leg sis inches below the knee and, upon recovery from that operation, to amputate at mid-thigh.

When a physician takes charge of a case his employment continues until ended by mutual consent or his dismissal or until his services are no longer needed. A physician who leaves a patient in a critical stage of the disease without reason or sufficient notice to enable him to procure another physician is guilty of culpable dereliction of duty for which he is liable. Stohlman v. Davis, 117 Neb. 178, 220 N.W. 247, 60 A. L. R. 658, and annotation 664; Bolles v. Kinton, 83 Colo. 147, 263 P. 26, 56 A. L. R. 814, and annotation 818; Herzog Medical Jurisprudence, section 188; 41 Am. Jur., Physicians and Surgeons, sections 72 and 102; 48 O.J., Physicians and Surgeons, sections 115 and 116. See also Mucci v. Houghton, 89 Iowa 608, 611, 612, 57 N.W. 305; Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 868, 869, 93 Am. St. Rep. 639, 13 Am. Neg. Rep. 421.

Defendants argue it is fatal to plaintiff’s claim of abandonment that no expert testifies it would have been proper to amputate the foot on June 22 or before June 27 when plaintiff was taken to Iowa City. The argument would have merit if it were not shown Dr. Bessmer on June 22 told plaintiff immediate amputation of the foot was necessary. Defendants are not in position to contend plaintiff should have produced expert testimony to corroborate Dr. Bessmer’s statement.

The trial court’s ruling, which defendants commend to us, is that Dr. Bessmer’s statement on June 22 was evidence amputation was then necessary and “any abandonment of plaintiff by defendants was not a proximate cause of the necessity for ampu-taiion since that had been determined before the claimed abandonment.” This ignores the fact Dr. Bessmer had decided it *1128was only necessary to amputate below the knee joint, whereas when plaintiff was at Iowa City amputation of the leg at the thigh had become necessary. The jury could properly find that if, as Dr. Bessmer said was then necessary, defendants had amputated below the knee joint “right away,” further amputation at the thigh would not have been required. Obviously loss of the leg is more serious than loss of the foot. The trial court’s ruling also ignores the added pain and suffering because of the delay and removal of the leg at the thigh. See as having some bearing Wilson v. Corbin, supra, 241 Iowa 593, 602, 603, 41 N.W.2d 702, 707, 708, and citations.

IY. Since the cause.is reversed and may be retried and in order that error may be avoided it seems desirable to express our views upon the trial court’s ruling that Dr. Fowler of Evanston, Illinois, was not a competent witness to testify to the methods of treating varicose veins and whether the blocking of the femoral artery could be repaired. This is a matter argued by both sides.

Dr. Fowler acquired an A.B. degree from Williams College, Massachusetts. He then attended Northwestern University medical college, Evanston, four years. . From March 1941 to June 1942 he was interne at the University of Illinois research hospital, Chicago. The next year he was a surgical research fellow at the University of Illinois and received a master of science and surgical degree. He was resident surgeon for the University of Illinois hospital for three more years and was then associated with Dr. DeTacket of Chicago. Dr. Dorner indicates Dr. De-Tacket is an eminent specialist in vascular surgery (treatment of varicose veins, clots, high blood pressure and the like). For about three years just before the trial in 1949 Dr. Fowler was on the staff of an Evanston hospital. He has had a rather broad training in surgery, especially vascular surgery, and performed three or four hundred ligation operations of the saphenous vein. About September 1947 Dr. Fowler examined plaintiff who was probably referred to him by Dr. DeTacket.

Dr. Fowler testifies without dispute:

“I am familiar with the care, skill and knowledge of physicians and surgeons in communities generally throughout the country, similar to Davenport, in the treatment of varicose veins *1129for the year 1939. I have received this knowledge and expedience through my training in medical school, as an interne,, a resident surgeon, my work for Dr. DeTacket and my own private practice. * * * I have given treatment of varicose veins in similar communities as that of Davenport.”

Principal grounds for the ruling Dr. Fowler was incompetent seem to have been that he had practiced mostly in and around Chicago (about one hundred seventy-five miles from Davenport) and he was still in medical college in 1939 when defendants treated plaintiff.

We have said several times a physician is bound to use that degree of knowledge, skill, care, and attention ordinarily exercised by physicians under like circumstances and in like localities. Bartholomew v. Butts, supra, 232 Iowa 776, 779, 5 N.W.2d 7, 9, and citations; Wilson v. Corbin, supra, 241 Iowa 593, 599, 41 N.W.2d 702, 705.

The thought behind these statements apparently is that there may be a different standard of care or method of treatment in different localities. Decisions show a definite trend away from this thought, especially where the locality in question is such a city asDavenport in a metropolitan area (including a portion of Illinois) of some 200,000 people, only three or four hours ride from a great city like Chicago.

For example, in Sinz v. Owens, 33 Cal.2d 749, 757, 205 P.2d 3, 7, 8 A. L. R.2d 757, the California Supreme Court says:

“The more recent California cases upon the question of competency of a doctor in one community to testify as to the standard of care at another place, although phrasing the rule in terms of ‘same’ or ‘similar’ locality,, have shown a clear tendency to depart from the earlier geographical limitations of the rule.”

Sampson v. Veenboer, 252 Mich. 660, 666, 667, 234 N.W. 170, 172, holds a Chicago doctor was qualified to testify to the practice of surgery in Grand Rapids, Michigan, although he had retired from active practice before the time in question and (to quote from the opinion), “He never visited the hospitals or practiced * * * in * * * Michigan.” Grand Rapids and the Davenport *1130area are very nearly tbe same distance from Chicago', with about the same population. The Sampson opinion further states:

“At times it may become necessary to secure the expert testimony of one who resides some distance from the home of a defendant accused of malpractice, for it may be difficult to obtain a witness to testify against one who bears the very high professional reputation of defendant. If it would always be necessary to secure an expert from the vicinity of the home of a defendant who might be the only practitioner there, it would be impossible to secure such testimony at all. What credence should be given to the expert’s statements is another matter. That was the province of the jury.”

Like the Michigan court and several others we have commented on the well-known natural reluctance of physicians to testify in malpractice cases against a fellow doctor, especially a reputable one. Bartholomew v. Butts, supra, 232 Iowa 776, 779, 5 N.W.2d 7, 9, and citations.

In Viita v. Fleming (Viita v. Dolan), 132 Minn. 128, 135, 155 N.W. 1077, 1080, 1081, L. R. A. 1916D 644, Ann. Cas. 1917E 678, widely approved in other jurisdictions, the Minnesota court as early as 1916 rejected the rule that a physician is to be judged only by the qualifications that others in the same village or similar villages possess and adopted the rule that a doctor is (to quote from the opinion) “required to exercise such reasonable care and skill as an ordinary physician or surgeon in good standing would exercise under like circumstances, and that, among the circumstances to be' considered, was the location of the physician #

Another leading case is Tvedt v. Haugen, 70 N. D. 338, 349, 294 N.W. 183, 188, 132 A. L. R. 379, cited with approval in Wambold v. Brock, 236 Iowa 758, 764, 19 N.W.2d 582, 585, and in Wilson v. Corbin, supra, 241 Iowa 593, 602, 41 N.W.2d 702, 707. Tvedt v. Haugen states:

“Today, with the rapid methods of transportation and easy means of communication, the horizons have been widened, and the duty of a doctor is not fulfilled merely by utilizing the means at hand in the particular village where he is practicing. So far as medical treatment is concerned, the borders of the locality and *1131community have, in effect, been extended so as to include those centers readily accessible where appropriate treatment may be had which the local physician, because of limited facilities or training, is unable to give.”

See also Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707, 715, 716; Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338, 344, both cited in Wilson v. Corbin, supra (at page 600 of 241 Iowa, page 706 of 41 N.W.2d).

3 Shearman and Redfield on Negligence, Rev. Ed., section 617, page 1532, says:

“The rule is not such skill as is possessed by medical men in the same locality * * *. But * * * such skill as capable members of the profession ordinarily possess under similar circumstances, having regard to similar localities and the opportunities they afford for keeping abreast with the advance in medical knowledge and science.”

Restatement of the Law, Torts, section 299, comment d, page 805, states: “In those professions which can be safely practiced only by persons who have been trained thereto, one * * * is required to have the skill normal to the average member of the profession.” This does not limit the required skill to that in the same or like localities.

The above sufficiently indicates the trend of the authorities. There seems to be sound basis for holding a physician to such reasonable care and skill as is exercised by the ordinary physician of good standing under like circumstances. And the locality in question is merely one circumstance, not an absolute limit upon the skill required.

But even under the rule which has prevailed in this state Dr. Fowler was shown competent to testify to the methods of treating varicose veins in localities like Davenport and whether the blocking of the femoral artery could be repaired. He should not have been held incompetent merely because he had practiced mainly in and around Chicago or because he was still a medical student in 1939. Perhaps Dr. Fowler could not have testified to such methods of treatment by a small-town general practitioner. This is not such a case.

Nothing more need be said as to the metropolitan character of the Davenport area and its proximity to Chicago. Defendants’ *1132argument refers to- tbe Davenport hospital where plaintiff was confined as a “metropolitan” one. Further' it is to be remembered Dr. Bessmer held out Dr. Spang to plaintiff as an expert or specialist in the treatment of varicose veins and plaintiff had a right to believe he was more skillful in such matters than the ordinary general practitioner. It is not unreasonable to expect a specialist in a particular field located in a city like Davenport to be informed of methods in use outside the city where he is located.

A physician or surgeon who is held out as a specialist is required to exercise that degree of skill and care ordinarily used by similar specialists in like circumstances, having regard to the existing state of knowledge in medicine and surgery, not merely the average skill and care of a general practitioner. Rayburn v. Day, 126 Or. 135, 268 P. 1002, 59 A. L. R. 1062, and annotation 1071; Coleman v. Wilson, 85 N. J. Law 203, 88 A. 1059, Ann. Cas. 1915D 1122, 1124, and note; Baker v. Hancock, 29 Ind. App. 456, 63 N.E. 323, 325, 64 N.E. 38; Gabrunas v. Miniter, 289 Mass. 20, 193 N.E. 551; annotation 141 A. L. R. 111, 119, 120; 41 Am. Jur., Physicians and Surgeons, section 90.

For the errors pointed out in Divisions II and III, this cause is — Reversed and remanded.

Bliss, C.J., and Oliver, Hale and Mulroney, JJ., concur. Smith, J., concurs in Divisions III and IY and in the result. Hays, Wennerstrum and Mante, JJ., dissent.