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January 21, 1954


The opinion of the court was delivered by: YOUNGDAHL

In this malpractice action, the jury returned a verdict for the plaintiff in the sum of $ 30,000. Plaintiff asserted negligence on the part of defendant in setting and treating a broken wrist of plaintiff, resulting in deformity and disability to the forearm and hand.

Defendant has moved for judgment notwithstanding the verdict or for an order setting aside and vacating the verdict and granting a new trial, and in the event such relief is denied, for a remittitur.

 At a prior trial before another judge of this court, defendant's motion for a directed verdict was granted at the close of plaintiff's case. The Court of Appeals reversed, holding that plaintiff's evidence warranted submitting the case to the jury. Chambers v. Tobin, 92 U.S.App.D.C. 274, 204 F.2d 732.

 In reviewing plaintiff's case the Court of Appeals noted that, 'The evidence in part showed that the fracture was of a common type, known as a 'Colles' fracture'; that the usual period for a union was from four to eight weeks; that casts applied by defendant during a period of postoperative treatment were too tight; and that a state of severe contraction developed. Plaintiff offered to prove that the usual prognosis is good in the case of a Colles' fracture, with only slight widening of the wrist, and that the functioning of the hand, wrist and arm is usually unaffected.' The Court said that the offered evidence was improperly rejected.

 In concluding that the case should have gone to the jury, the Court stated:

 'A careful consideration of all the evidence, construed most favorably to plaintiff, with the benefit of every legitimate inference, leads us to conclude that it brings the case fairly within the scope of our opinion in Goodwin v. Hertzberg, 1952, 91 U.S.App.D.C. 385, 201 F.2d 204'.

 In Goodwin v. Hertzberg, supra (91 U.S.App.D.C. 385, 201 F.2d 205), it was stated:

 "The rule applicable in the District of Columbia on a motion for a directed verdict, in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury * * *.' * * * It is immaterial that no expert testified that appellee acted negligently. 'Malpractice is hard to prove. The physician has all of the advantage of position. * * * What therefore might be slight evidence when there is no such advantage, as in ordinary negligence cases, takes on greater weight in malpractice suits. * * *"

 The evidence adduced at this trial is even stronger for plaintiff than at the first trial because of the additional evidence received as to the usual prognosis in the case of a Colles' fracture which the Court of Appeals held was erroneously excluded in the first trial. It seems to this Court, therefore, that the Court of Appeal's determination that a jury question was presented is decisive and defendant is now in no position to assert that a case was not made for the jury. Of course the evidence as now submitted must be considered in deciding whether plaintiff made out a case, rather than the evidence at the former trial.

 Construed most favorably to plaintiff with the benefit of every legitimate inference, plaintiff's evidence may be summarized thus:

 On February 2, 1947, plaintiff slipped on a scatter-rug in her home, fell and broke her left wrist, sustaining a simple comminuted Colles' fracture. After receiving first aid treatment at Georgetown University Hospital, she returned the next day and employed defendant to treat the wrist. She was given a general anesthetic; the fracture was reduced and her arm put in a cast. At that time she was suffering some pain; there was some discoloration, but no swelling.

 On numerous occasions after this cast was applied, plaintiff complained to defendant about the cast being too tight, but was told it couldn't be touched. On February 5th or 6th the cast was cut and remained in that condition until February 12th when it was removed and a new cast applied. No anesthetic was given the plaintiff at that time. Before applying the second cast, defendant took one of plaintiff's hands with one of his hands and her elbow with the other hand and pushed the bones together. Plaintiff asked why he hadn't given her an anesthetic and he replied, 'I should have and may still have to.' After the second cast was applied, Dr. Rush, defendant's assistant, looked through the fluoroscope at the point of fracture and said to defendant, 'Bill, there is something wrong here.' Whereupon defendant replied, 'Finish up, I've got to go back to my classes.'

 The second cast was also very tight and plaintiff suffered considerable pain. There was swelling and discoloration. The fingers were so swollen that there was no space between them. Plaintiff could not supinate or pronate the hand. Between February 12th and February 22nd, plaintiff complained to defendant many times about the tightness of the cast and asked defendant to cut it, but he said it could not be done. Plaintiff also complained to Dr. Rush about the tightness of the cast, but nothing was done. The pain was intense at all times and defendant was informed by plaintiff of the intensity of the pain and swelling, but did nothing about it. Subsequently defendant told plaintiff he was worried about the arm and said he was afraid she was going to lose the arm because of a gangrenous condition.

 Defendant sent plaintiff to Dr. Fulcher, a nerve specialist, and upon examining the arm he said, 'When I see something like this, it makes me want to go back to orthopedics.' Dr. Fulcher said that plaintiff had a Volkmann's contracture; that it was an orthopedic mistake, an over-corrected arm. Dr. Fulcher called defendant's attention to the tightness of the cast and stated that he (Dr. Fulcher) would not touch the arm until the cast was cut; and when plaintiff returned to defendant to ...

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