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Simpson v. Johnson

OPINION FILED FEBRUARY 14, 1977.

FORREST G. SIMPSON, PLAINTIFF-APPELLANT,

v.

JED JOHNSON, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of La Salle County; the Hon. WILLIAM P. DENNY, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiff, Forrest Simpson, brought this action in the circuit court of La Salle County against defendant, Jed Johnson, seeking to recover damages for medical malpractice. The jury returned a verdict in favor of the defendant. Plaintiff's post-trial motions were denied and this appeal follows.

On January 2, 1971, plaintiff Simpson was doing some carpentry work on a building in Marseilles, Illinois. He fell from a scaffold situated approximately 22 feet above the ground landing on hard frozen ground. He fell on his outstretched right arm, and his right shoulder, elbow, and arm sustained the force of his fall. The defendant, Jed Johnson, a general practitioner in Marseilles, was called to the scene where he examined defendant and performed some initial procedures. Plaintiff was then taken to the hospital where he was treated further by the defendant. Either as a result of shock or the injection given him for pain, plaintiff lost consciousness in the hospital and when he recovered consciousness later, his right arm had been placed in a cast and immobilized. The cast was for the purpose of immobilizing plaintiff's dislocated elbow caused by fractures of the forearm bones. The cast extended beyond the wrist almost to the knuckles of plaintiff's right hand.

There is substantial testimony regarding what happened between January 2, 1971, and March 2, 1971, which need not be detailed at this juncture. It is sufficient to say that when the cast was finally removed on March 2, 1971, it was discovered that the plaintiff had serious problems regarding his wrist. It is the injury to the wrist which is the basis of this litigation. The substance of the charges of medical malpractice are that the defendant negligently failed to discover, diagnose or properly treat the Colles's fracture of the plaintiff's right wrist. Plaintiff was referred to another physician who performed surgical procedures in 1971 and 1972, which were not successful in remedying the consequences of the injury to plaintiff's wrist.

Dr. Paul Meyer, the physician who performed the surgical procedures, was called by the plaintiff as an adverse party under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60). (Meyer was originally named as a party defendant, but during the course of the trial the action was dismissed as to him.) In addition, Dr. Frank Friedman testified as an examining medical expert on behalf of the plaintiff. Dr. Johnson testified in his own behalf and also called Dr. G. Alan Neufeld to testify as an expert witness, the latter doctor having neither treated nor examined the plaintiff.

From the evidence it is undisputed that the defendant did not discover or treat any fracture of the wrist at the time of his original treatment on January 2, 1971, or during the period prior to the removal of the cast on March 2, 1971. The medical testimony is directed primarily to the question of whether the defendant employed reasonable medical skill in discovering and diagnosing the injuries occasioned by the plaintiff's fall.

On this appeal the plaintiff argues first, the trial court erred in refusing to direct a verdict in his favor on the issue of liability or to grant his motion notwithstanding the verdict and second, he should have been granted a new trial because of the occurrence of prejudicial trial errors.

• 1 The general rule in a medical malpractice case is that the plaintiff has the burden to prove the proper standard of care imposed upon the defendant and then to prove by affirmative evidence an unskilled or negligent failure to comply with the standard and a resulting injury. Livengood v. Howard, 11 Ill. App.3d 1, 295 N.E.2d 736; Estell v. Barringer, 3 Ill. App.3d 455, 278 N.E.2d 424; Comte v. O'Neil, 125 Ill. App.2d 450, 261 N.E.2d 21.

According to plaintiff, the evidence presented in support of his cause of action was substantial and unrefuted. If, as he argues, the plaintiff's evidence was unrefuted, then it follows that the application of the Pedrick rule (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504) requires that the trial court grant his motion for directed verdict at the close of all the evidence or alternatively, a judgment notwithstanding the verdict pursuant to his post-trial motion.

• 2-4 The major thrust of plaintiff's evidence is directed toward three areas of the defendant's diagnosis and treatment. The first of these areas deals with the defendant's failure to X-ray plaintiff's wrist on January 2, 1971, the contention being that if proper diagnostic techniques had been employed, the wrist would have been X-rayed and the Colles's fracture of the wrist discovered. The second involves the failure of the defendant to discover the existence of the Colles's fracture during the period January 2, 1971, to March 2, 1971. The third area relates to the improper treatment administered by the defendant after he removed the cast and discovered the fracture on March 2, 1971. While we agree with plaintiff there is ample evidence from which the defendant's duty and breach thereof may be inferred, we are not prepared to say that such evidence is unrefuted or that the evidence so overwhelmingly favors the plaintiff that no contrary judgment may stand. Of course the principal issue is whether under the circumstances the defendant should have X-rayed the plaintiff's wrist. In this respect it is undisputed that defendant did not X-ray the plaintiff's wrist. In his explanation of his failure to do so, the defendant insists that X-rays were not indicated because the wrist appeared normal, moved normally and did not evidence any localized pain. Whether this conduct was in accord with the standard of skill required is, we believe, a question of fact. Likewise, whether the complaints of the plaintiff were sufficiently specific during the period the cast was in place or whether the defendant should have observed other symptoms warranting examination of the wrist area by X-ray or other medical techniques, presented a question of fact. With respect to what occurred during this period, there is conflicting testimony both as to the nature and extent of the plaintiff's complaints and the conclusions which the defendant should have drawn from what he heard and saw. Lastly, the manner of improper treatment after the cast was removed depends in part upon what had already occurred. It is undisputed that defendant employed improper treatment for a new Colles's fracture. Since the defendant treated it the same as if it had been healed, there remains an issue of fact concerning the justification of the defendant for considering the fracture as healed under the circumstances and treating it accordingly. We are not prepared to hold that the evidence in support of plaintiff's claim is unrefuted or even substantially undisputed.

This brings us to plaintiff's general assignment of error that prejudicial trial errors occurred depriving him of a fair trial and requiring that he be granted a new trial. We agree that a new trial is required.

Although the plaintiff makes numerous assignments of error regarding occurrences which took place during the trial, we believe it necessary to consider only the following. One, whether the trial court erred in permitting testimony relating to some undisclosed accident. Two, whether the trial court erred in permitting Dr. Neufeld to testify and in failing to grant a new trial when it was discovered after the trial was over, that the Doctor had testified falsely concerning his acquaintanceship and relationship with members of the jury.

The first assignment of error which we shall discuss is the plaintiff's claim the trial court erred in permitting evidence which suggested or implied that plaintiff's fractured wrist was the result of some undisclosed occurrence which took place sometime between January 2 and March 2, 1971. At the beginning of the trial, plaintiff argued his motion in limine to restrain defendant from implying and making innuendoes to the jury that there might have been another accident, unless defendant first showed some evidence sufficient to justify it. The trial court granted the motion. When it became apparent the defense was ignoring the ruling, plaintiff renewed his motion. The trial court then reversed itself and refused plaintiff's motion. During cross-examination of the plaintiff as well as during direct examination of the defendant, counsel for the defendant asked numerous questions which sought to imply that because of weather conditions, plaintiff's physical condition, and the presence of the cast, plaintiff had or could have fallen causing the Colles's fracture. During his final argument, defense counsel argued to the jury that the injury did not occur on January 2, 1971. There was no evidence presented of any intervening occurrences which might have caused the wrist fracture and consequently no evidence of any relation between the injury complained of and any other occurrence, other than plaintiff's fall from the scaffold on January 2, 1971.

According to the plaintiff, the trial court erroneously permitted the introduction of evidence relating to possible intervening occurrences because such evidence was irrelevant. Furthermore, such evidence was highly prejudicial because it permitted and encouraged the jury to consider or speculate about facts not supported by the record. In support of the trial court's action in permitting such evidence, the defendant argues that the evidence was ...


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