Geraldine Burton, a minor, through her father and next friend, C.A. Burton, instituted an action in the district court of Tulsa county, Okla., against Dr. N. Stuart White, to recover damages for alleged serious and permanent injuries she received as the result of certain alleged acts of malpractice. From a judgment in her favor, the defendant appeals.
The defendant advances 14 grounds, some of which are subdivided, for a reversal of said judgment. At least six of these relate to the main issue, and will be considered together. This contention may be summarized thus: There was a total absence of competent medical testimony to attribute the failure of plaintiff's leg to heal to a lack of care or skill in diagnosis and treatment by the defendant, or, to put it another way: The overwhelming and uncontradicted evidence is that plaintiff's ununited fracture of the tibia is the result of a congenital condition and a systemic deficiency, and that no amount of care, skill, or treatment would have produced any better results. The defendant contends that he diagnosed the plaintiff's injury properly, and that he treated it with a skill commensurate with his professional ability and responsibility. It is proper at this point to summarize the evidence and indicate wherein it is or is not in conflict.
The plaintiff jumped from her high chair when she was about 21 months old. Thereby she injured her left leg. This happened at night, and defendant was called to see her. The parents testify that defendant came to visit plaintiff while on his way to a party and only made a cursory examination and pronounced the injury to be a sprain. Defendant denies this, and testified he made as much examination as was possible, prescribed treatment, and called the next morning when he thought the leg could be better examined and treated. Plaintiff was taken to the hospital, where defendant reduced the fracture and had her leg X-rayed. The parents testified defendant told them the fibula or small bone was broken, that such bone was of small consequence to humans, and it would heal in due course and without trouble. The X-ray, which defendant did not then examine, showed a fracture of the tibia, and not of the fibula, and a good setting thereof. All physicians testified that the reduction of the fracture showed good apposition of the ends and good alignment. Defendant denies he said the fibula was broken, and insists he knew it was the tibia. The X-ray bears him out in this, and he insists it was not necessary for him to examine the X-ray, since a child's limb is small and manual examination is sufficient. After four or five weeks, defendant removed the cast and advised the parents to have plaintiff walk on the leg. He made no X-ray at the time. Plaintiff refused to walk, and after some lapse of time defendant put a new cast on the leg. This procedure of applying and removing casts lasted for months. The parents testified that during all of this time defendant said plaintiff's fibula was making satisfactory progress. Defendant testified he knew the child was suffering from rickets and that the bone would not unite for this reason, and, further, that he advised the parents to consult a specialist for that condition. Defendant made no effort to treat her therefor. The injury was sustained May 21, 1931. In January, 1932, the defendant had a second X-ray made. The parents testified that at that time defendant admitted to them he had labored under the impression the fibula was broken, and now this X-ray showed the tibia broken instead, he could and would fix that. Defendant emphatically denies this. Within a short time defendant and another doctor operated on the plaintiff's leg by cutting into the bone. They discovered some callus, scraped the ends of the bone, and inserted a beef bone peg to maintain apposition and alignment. Their testimony was that not enough serviceable callus had formed to produce a union. During this operation the fibula was broken, and apparently no attempt was made to treat it. The theory was that the fibula was causing an adverse effect upon the tibia and causing the leg to bow. This treatment did not produce a union and the beef bone peg slipped down into the medullary canal of the lower portion of the bone. Thereafter defendant again operated upon the plaintiff's leg, and removed the beef bone peg, rescraped the ends of the bone, and sutured *Page 501 them together. This did not produce a union. The parents thereupon took the child to Mayo's, where a homogenous graft (using a portion of bone from the father's leg) was performed. This operation did not succeed, although the bone graft did unite to the upper end of the tibia. We have pointed out herein where competent evidence of the parents conflicted with the evidence of defendant as to the diagnosis, early treatment, and later diagnosis. We do not mean that the parents' testimony was of a scientific character, but it was recitation of what defendant told them — all of which defendant denied.
The most serious aspect of plaintiff's condition is this permanent nonunion. Consequently, the most serious question is whether it is in any wise attributable to defendant's diagnosis and treatment. This issue, under our decisions, is one to be determined upon medical testimony. Inter-Ocean Oil Co. v. Marshall, 166 Okla. 118, 26 P.2d 399, and other cases. Therefore, our decision upon the arguments embraced under this contention turns upon the testimony of the various physicians.
The defendant was supported in the correctness of his diagnosis, the propriety of the treatment given by defendant to plaintiff, and in his contention that the permanent nonunion resulted from the congenital condition of the bones and the presence of rickets, by the positive testimony of ten other physicians. Several of these physicians had treated plaintiff, and all of them had made some examination of her. At least four of these physicians testified that an examination of the various X-ray pictures of plaintiff's leg demonstrated the congenital condition of the bone and the existence of rickets. All of these physicians testified positively that the permanent nonunion resulted from the failure of the plaintiff to produce the callus substance necessary to form a union and that this resulted from the congenital condition of the bone and the rickets; and all denied that this permanent nonunion resulted from any failure of diagnosis or treatment. It is difficult to conceive a stronger defense in this respect. Even the eminent bone specialists at Mayo's Hospital, who treated the plaintiff at the request of her parents, and whose deposition was taken by the plaintiff but introduced by the defendant, unqualifiedly supported the defendant's theory and defense.
But, however positive and strong this defense is, it is not uncontradicted, and, therefore, was a question for the jury.
The plaintiff's testimony on these points was embodied in the depositions of two physicians. It may be said at this point that these physicians never examined or treated the plaintiff. This does not render their testimony incompetent, but would go to the weight thereof. This is for the jury. Under the strenuous argument of the defendant that the testimony of these physicians does not conflict with the testimony of his expert witnesses, we deem it advisable to point out wherein it does conflict.
(1) These physicians criticize the defendant for not reducing the plaintiff's fracture immediately, and for waiting until the next day as he did; (2) they criticize defendant for not keeping the bone fragments in a continuous and satisfactory alignment and apposition; (3) they criticize him for not taking X-ray pictures with more frequency, whereby he might have studied the alignment, the apposition, the formation of callus and other details of healing, and might thereby have known positively of the failure of a union and to have taken steps to bring it about; (4) they criticize defendant for failure to have made analyses of the blood by which constitutional deficiencies might have been determined accurately and treated; (5) they criticize the cast applied (one of them saying that splints was the proper treatment for a child); (6) they condemn the insertion of the beef-bone peg in view of its size, saying that it was bound to act as a foreign body and to irritate the plaintiff's leg and to interfere with the functions of the medullary canal, and especially do they attribute deleterious effects to permitting the peg to slip out of place and into the lower fragment and remain there for some time. Both of these physicians said it was apparent from an examination of the X-ray pictures that no proper and normal and continuous apposition of the fragments was maintained. Dr. Shaw was asked to what he attributed the nonunion, and he said: "The long period of severance and the lack of union where nutrition can take place." He likewise said as many as three times that the X-ray pictures did not indicate any constitutional causes for the leg not healing. This positively contradicts the testimony of the physicians for the defendant whose readings of the same X-ray pictures indicated the presence of such constitutional causes. Dr. Henning testified that from an examination of these X-ray pictures, there was evidence of vitality in the bones at all times, and that there was evidence of vitality in the upper fragment following the *Page 502 bone graft at Mayo's Hospital. In answer to at least five questions on direct and cross-examination, he said that the X-ray pictures indicated nonunion, due to lack of apposition and to irritation by foreign body and to irritation caused by the ends of the fragments rubbing due to the lack of fixation and apposition. We have come to the conclusion that the effect of the testimony of these physicians is to raise a conflict with the testimony of the physicians testifying for the defendant in respect to the cause of the permanent nonunion. Criticism is made of the form and contents of many of the hypothetical questions put to plaintiff's medical experts. This criticism is merited, but it does not follow that these physicians failed to deny the existence of the alleged congenital and rachitic conditions. We are of the opinion that the testimony of plaintiff's physicians was of sufficient probative value to support a finding by the jury that the defendant did not diagnose and treat the plaintiff in keeping with the medical standards of the community, and that the failure to obtain a union of the fractured bone was the result thereof, rather than any deficiency in plaintiff's physical self.
Defendant has two contentions upon which he bases claims of prejudice. The first relates to the introduction of incompetent evidence, and the second to improper argument to the jury by one of plaintiff's attorneys. The incompetent evidence was inadvertently admitted at a time when the court was admitting testimony of the father of conversations he had with another physician and repeated to defendant and the defendant's comments thereon. Plaintiff's counsel readily conceded the incompetency of certain statements which the father made, and the court more than once strictly admonished the jury to ignore such statements. The argument of the attorney for plaintiff was violent and full of strong and expressive terms not customarily used in presenting a client's cause to a jury. Such argument to a jury was improper. Our object is to say whether prejudice to the defendant resulted from these. In our opinion it did not. We do not believe the incompetent evidence was of a character to produce prejudice, and, in any event, not to the extreme degree claimed. The language and argument of the attorney appear to us to be more calculated to repel than produce sympathy. There is one thing above all others which convinces us that no prejudice resulted to defendant from these things, and that is the amount of the verdict. The plaintiff, a small girl, has a deplorable, life-long physical handicap. This alone is capable of eliciting strong sympathy. Candor compels us to say that the testimony of plaintiff's witnesses of the long continued, unavailing efforts to produce healing, under (as they say) a course of misapprehension of the real trouble and wasted time and effort, is strongly appealing to the sympathies. Yet, in the face of all this, the jury's verdict was for $7,500. Every day juries return, and this court approves, verdicts for far larger sums under fact situations no more harsh, and oftentimes even less so, than this. We are unable to see any prejudicial results to defendant.
We see no abuse of discretion in refusing a continuance in order to enable defendant to produce Dr. Dixon. The jury understood that witness Burton was undertaking merely to repeat certain conversations, and the plaintiff's attorneys admitted to the jury that if Dr. Dixon was present, he would deny making such statements.
Likewise, we see no abuse of discretion in permitting plaintiff to amend her petition. The amendment related to the descriptive location of the fracture. It is true that defendant had objected to the plaintiff's evidence locating the fracture elsewhere than as described in her petition. But the defendant had introduced evidence corroborating plaintiff's evidence, and in truth there was no dispute in the evidence over the location (that is, in points of distance) of the fracture.
The instruction complained of might, if standing alone, be susceptible of the interpretation defendant argues it has. However, we do not believe the jury could get the impression from it that defendant would be liable if he expressly warranted a cure and then failed, to the extent of excluding the inferences from the record and ignoring the other instructions.
The contentions that errors were committed in admitting certain evidence, and In permitting certain hypothetical questions, would not, if entirely true, work a reversal of the cause. All of this evidence was upon technical medical matters. The objections are largely technical, and such as may be found in the record of every contested action. We have given this record much consideration and cannot believe the errors urged by defendant were in any wise to his damage. We say again we think the amount of the verdict is supported by competent evidence, and, above all is moderate.
Judgment affirmed. *Page 503
OSBORN, C. J., and PHELPS, CORN, and HURST, JJ., concur. BUSBY and WELCH, JJ., dissent. GIBSON, J., not participating. RILEY, J., absent.