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Weintraub v. Rosen

December 13, 1937


Appeal from the District Court of the United States for the Southern District of Illinois, Southern Division; J. Earl Major, Judge.

Author: Sparks

Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

By this action appellants sought to recover damages from appellees, who are practicing physicians, which it is alleged resulted from malpractice. The case was tried before a jury and at the conclusion of appellants' evidence the court sustained appellees' motion for a directed verdict, and rendered judgment for costs against appellants, from which judgment this appeal is prosecuted.

The damages involved resulted from injuries to Mrs. Weintraub by reason of an automobile accident which occurred near Springfield, Illinois, on August 9, 1933. At the time of the accident she was accompanied by her husband, who is her co-appellant, together with her brother and her son. They are all residents of Kansas City. She was immediately taken to a hospital in Springfield where it was found that she had suffered very serious injuries. Appellees who were called to attend her found that she has sustained a skull fracture extending from the frontal bone almost to the base of the skull, and she was unconscious for several days. She was then about forty-seven years of age and weighed about one hundred and four pounds. The injury to her head was of such a serious nature that her life was despaired of for several days. After four or five days she regained consciousness, and was able to take nourishment, and to perform the bodily functions of excretion. At the expiration of about three weeks she was placed in a wheel chair for short periods of time, and on September 7, she was returned to her home in Kansas City by ambulance and by train. This was accomplished by the advice and consent of appellees who then informed her husband that she was out of danger although they ordered that she be accompanied by a nurse, which was done. During the time she was in the Springfield hospital she gave many indications that she was suffering pain in her right hip. Appellees thereupon tested the sole of her right foot for sensation, and stated that the injury had probably caused a partial paralysis. Later they requested the patient to move her toe, which she did. They at no time examined the hip and at the time the patient left Springfield they had no knowledge that the hip was fractured.

When she arrived at her home she was visited and examined by her family physician who said that she was conscious and partly rational at times. On the third day he observed that her right leg was shorter than the left, and at his direction she was taken to a hospital for an X-ray examination of her hip. Upon consultation with other medical counsel it was decided to put an extension on the leg. This causes considerable pain, and it was removed in a day or two. The family physician who continued to treat her said that she was nervous and physically incapacitated in every way imaginable.

It is unnecessary to recite the evidence of the attending physicians at Kansas City. It may be said from their testimony, however, that an examination of the hip, if made while the patient was at Springfield, would have disclosed the fracture, and that her right leg was perceptibly shorter at the time she left the Springfield hospital.

The undisputed evidence disclosed that in fractures of this nature if the fracture is not reduced within two or three weeks from the injury a fibrous tissue begins to cover the ends of the broken bone, which renders it practically impossible to secure a bony union thereafter.

In April, 1934, Dr. Dickson, an orthopedic surgeon, was first called to see her. At that time the X-ray showed a fracture of the neck of the femur, but not an impacted one. Dr. Dickson said she was so excitable that it was very difficult to make a complete examination, but that she had some shortening, limitation of motion, and pain in the right hip. He saw the X-ray which had been taken at the Kansas City hospital and which showed a fibrous union. On May 16, 1934, the hip was put in an abduction case to see if the fibrous union could be converted into a bony one. The case was allowed to remain until June 22, when she was put on crutches and exercises. She seemed to progress fairly satisfactorily, and on October 10, 1934, he took an X-ray of her hip which looked very encouraging. In March, 1935, her symptoms became definitely worse, and he recommended a Whitman reconstruction operation which he performed on May 29, 1935. The operation was quite successful, but the shortage in her limb was permanent.

It is not denied that appellant suffered a very serious injury, both to her head and to her hip, and we need not discuss that subject. It is condeded that the injury to the patient's head was the more serious of the two, and caused her to linger between life and death for several days.

The first question for our consideration is whether the court erred in directing a verdict for the appellees. We agree with the latter's contentions: (1) That the burden was upon appellants to establish a prima facie case of negligence on the part of appellees; and (2) that one or more of the alleged injuries proximately resulted from that negligence.

The court directed the verdict on the theory that the first duty of the physicians was to save the patient's life, if possible, and that even though the appellees might have been guilty of negligence is not discovering the condition of the hip, yet they would not be held for damages unless the evidence showed that they could have safely examined and cared for her injured hip without endangering her life while she was undergoing treatment for the serious condition of her head.

We cannot agree entirely with this theory. We think the correct statement under such conditions would be that appellees could not be held for the resulting damages, if any, if the evidence disclosed that they could not have safely examined and cared for her injured hip without endangering her life. The error in the adopted theory lies in the fact that the court placed the burden upon appellants, in the first instance, of proving that the patient was in a fit condition to have her hip examined and care for without endangering her life. This, we think, placed upon appellants a greater burden than the law warrants. In Davis v. Kerr, 239 Pa. 351, 86 A. 1007, 46 L.R.A., N.S., 611, it was held that the burden of showing care was upon a surgeon who left a sponge enclosed in a wound. To meet that burden was his defense, and in the absence of supporting evidence the plaintiff's prima facie case, if made, would not be defeated. So in the case at bar, conceding that a prima facie case of negligence had been established, the burden was upon appellees, if they desired to avail themselves of that defense, to prove that the patient's condition was such that examination or treatment of her hip would have endangered her life. That defense, if established would have been complete, even if established by appellants' evidence. It can not be contended, however, except by unwarranted inferences, that such defense was established, and the case was disposed of because appellants had not disproved the negative of a defence which had not been established.

Aside from the injury to the patient's head there can be no doubt that appellants established a prima facie case of negligence, with proximately resulting damages. It may be conceded that the injury to her head prevented an examination and treatment of her hip sooner than five days after the injury, for she was unconscious during that time. However, this record discloses that the patient was in a condition to undergo an examination of ...

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