Bryant v. Rankin, 468 F.2d 510 (8th Cir. 1972)

ROSS, Circuit Judge.

This is a malpractice action brought by the plaintiff, Jean Bryant, against Dr. John Rankin, a surgeon, and Dr. William Harper, a general practitioner. The complaint alleged that negligent diagnosis and treatment of a hip fracture sustained by the plaintiff in an automobile accident, resulted in her permanent disability. The ease was tried to a jury which returned a verdict in favor of Mrs. Bryant in the sum of $150,000.00. However, the trial court granted motions filed by both defendants for judgment notwithstanding the verdict and, in the alternative, for a new trial, 332 F. Supp. 319 (S.D.Iowa 1971). We affirm the judgment n. o. v.

Mrs. Bryant was involved in the automobile accident on September 10, 1965, sustaining, among other injuries, a fracture of her left hip. She first was seen by Dr. Harper at St. Joseph’s hospital in Keokuk, Iowa about three hours after

the accident. Dr. Harper examined her and gave instructions to take x-rays which were then taken by the hospital radiologist. These x-rays indicated an impacted fracture of the left femoral neck. Dr. Harper consulted Dr. Rankin, a general surgeon with whom he often worked; and on September 15, 1965, Dr. Rankin performed an operation which involved an open reduction and insertion of a Smith-Peterson nail. X-rays indicated good alignment and that the fracture had been properly reduced.

X-rays were taken thereafter at about two-week intervals. On October 26, 1965, the defendants, in consultation with the radiologist, noted some detachment or deterioration of the head of the femur. On November 17, 1965, the x-rays showed some further deterioration of this bone. Dr. Harper testified that the radiologist (who was not available to testify at the trial) indicated that there was some evidence of aseptic necrosis,1 but “he felt that the thing that we should do is to wait and watch and see, because he felt that if aseptic necrosis were present, even though at this time he could not definitely diagnose it, it would not hurt anything to wait.” At that time, Mrs. Bryant was complaining about pain and Dr. Harper discussed this with Dr. Rankin and the radiologist. The radiologist stated that “[h]e saw no evidence of any infection of the joint. And he felt that we should wait, and in approximately a month to six weeks repeat the x-rays and see; and that if he were right about the aseptic necrosis, it certainly wasn’t going to hurt to wait this length of time.”

On January 3, 1966, x-rays disclosed “a little flattening of the head of the femur which is expected in avascular necrosis,” and all three doctors agreed on the diagnosis of avascular necrosis at that time. Mrs. Bryant was then advised that eventually this was going to require a further surgical procedure.

Mrs. Bryant indicated a desire to be transferred to the Columbia Medical Center at the University of Missouri and the transfer application was made. X-rays were again taken on January 13, 1966, and February 10, 1966, which, according to Dr. Rankin, showed no marked change except some further “destruction of the head in the superior or upper part of the hip bone.” Mrs. Bryant was admitted to the Columbia Medical Center on March 8, 1966..

Shortly after her admission to the Columbia Medical Center, x-rays were taken and Dr. Thomas Culley, an orthopedic surgeon, testified that the staff discussed possible diagnoses and thought that it could be an infection in the hip joint or “that it might be an avascular necrosis of the head of the femur, which is a reasonably common place complication of a fracture.” The Smith-Peterson nail was removed, and a biopsy and culture of the hip were performed which showed that Mrs. Bryant did in fact have a chronic, low-grade infection of a type rarely found in hip joints. She was then placed in a spica cast in hope that there would be a voluntary fusion of the hip joint. This cast was left on (although changed twice) until October, 1966, when the hope for a voluntary fusion was discarded and a bone graft was performed. This was also unsuccessful; and in March of 1967, a further operation was performed which was a resection of the femoral head, also referred to as a Girdle Stone Procedure. This amounted to the removal of the ball portion of the hip joint which allows the hip to ride out of the socket and results in a shortening of the leg. In June of 1969, further surgery was performed to correct a condition of her left foot resulting from the lengthy time her foot was in the cast. Plaintiff now has a permanent disability of her left leg and hip which leaves her left leg functionally disabled from 50% to 60% of normal.

The essence of Mrs.' Bryant’s cause of action against these two doctors is that they were negligent in failing to diagnose the low-grade infection, which she claims the jury could find was present in her hip in October and November of 1965 when the x-rays started to show some deterioration of the head of the femur. There is no question but what under the applicable Iowa law the failure to exercise skill, care, and attention in making a diagnosis may result in a determination of negligence on the part of a doctor.

On the other hand, an error in diagnosis “will not support a verdict for damages unless there is evidence of lack of skill or care in making the examination or forming the doctor’s judgment.” Wilson v. Corbin, 241 Iowa 593, 41 N. W.2d 702, 706 (1950). Evidence of the required skill and care, which must be exercised by a physician, must be given by an expert witness unless the physician’s lack of care is so obvious as to be within the comprehension of the layman’s common knowledge or experience, or the physician injures a part of the body not under treatment.2 Sinkey v. Surgical Associates, 186 N.W.2d 658, 660 (Iowa 1971); Grosjean v. Spencer, 258 Iowa 685, 140 N.W.2d 139, 143-144 (1966).

In the trial of this case, plaintiff offered no testimony as to what the standard of care under similar circumstances would be;3 no expert testimony that the defendants. Rankin and Harper violated any standard of care or that they were negligent in failing to make an alternative diagnosis of infection; and no expert testimony that the delay in making this diagnosis of infection contributed in any specific way to the ultimate disability of the plaintiff.

It is true that Dr. Rankin testified that if he had “felt there was an infection in the hip joint” he would have attempted to aspirate the hip joint to try to determine whether or not infection was present.4 He also testified that

none of the classical or clinical signs of infection were present. Dr. Rankin chose to rely on clinical findings such as white blood corpuscle counts5 and lack of toxicity, swelling, or redness, lack of temperature elevation, together with the advice of his radiologist and his own experience of over thirty years, in making his diagnosis of an aseptic necrosis.6 If this was negligence, it most certainly did not amount to negligence “so obvious as to be within the comprehension of the layman’s common knowledge or experience.” Sinkey v. Surgical Associates, supra, 186 N.W.2d at 660. This is not a case of obvious lack of care comparable to dropping a part of a tooth into a patient’s lung; or failing to x-ray the proper portion of a patient’s lumbar vertebra; or puncturing a patient’s neck instead of her trachea.7 If the plaintiff in this ease was to make a submissible issue for the jury, it was incumbent upon her to establish that the failure of the defendants to make the diagnosis of infection, was negligent and a breach of the standard of care to be expected of surgeons and physicians under similar circumstances. She failed to produce any expert testimony that the attending physicians failed to use reasonable care and, as we have already noted, the conduct of these physicians was not so obviously negligent as to be within the comprehension of the layman’s common knowledge or experience. Her failure to offer such testimony justified the trial court in granting judgment n. o. v.

However, even assuming that Mrs. Bryant made an adequate showing of negligence to permit the trial court to submit the case to the jury, she completely failed to establish that her disability resulted from the failure of Dr. Rankin or Dr. Harper to correctly diagnose her condition and treat her for the infection. There was no evidence offered by the plaintiff to the effect that the disability would have been avoided or reduced by earlier diagnosis and treatment of the infection, although Dr. Litton did testify generally that “the sooner you find an infection, the better the chance there is of obtaining a good result.” This opinion was also expressed by Dr. Schnell.

Dr. Litton, the orthopedic surgeon at the Columbia Medical Center, testified that if the operation which was performed in March of 1966 had been performed as early as December of 1965, he doubted that the result would be any different.

Dr. Schnell, Mrs. Bryant’s expert witness, acknowledged that he could not say that the infection “was causally related to the destruction of the head of the femur and the neck of the femur.” He testified that he suspected that there was a possibility that this was “one of the causal factors of the change in the joint space and the femoral head as we see it in the x-ray.” He also testified that perhaps Dr. Rankin and Dr. Harper felt “this was a low grade infection, which, without systemic signs of infection: wound change, lack of change of white cell count, erythrocyte sedimentation rate, et cetera, that the body was controlling this infection, having limited

it to the hip or femoral head, or both. Therefore, they would have expected the body to continue to control and eradicate the infection, without the use of antibiotics. I don’t know this, but this is suspect.” Dr. Schnell was then asked this question: “Doctor, do you have an opinion, based upon reasonable medical certainty, and based upon your qualifications and experience, and your review of those documents presented to you by plaintiff’s attorneys, whether the condition of Mrs. Jean Bryant would be any different today if in fact she had the hardware removed in January of 1966 and then she was placed in a spica cast in an attempt to — in an attempted voluntary fusion?” Dr. Schnell responded: “No, I think the end result could have been the same.” Later he acknowledged that his answer would probably be the same if similar treatment had been instituted in December of 1965.

In Iowa, the issue of proximate cause is ordinarily for the jury where there is substantial evidence of a defendant’s negligence. Wilson v. Corbin, supra, 41 N.W.2d at 708. But the evidence adduced by the plaintiff must show that “plaintiff’s theory is reasonably probable, not merely possible, and more probable than any other theory based thereon. It is not necessary that the proof be conclusive or exclude every other suggested or possible cause.” Stickleman v. Synhorst, supra, 52 N.W. at 507.

In this case, the evidence may have shown that it was possible that the failure to diagnose and treat the infection contributed to the disability of Mrs. Bryant, but it certainly could not be interpreted as haying shown that it was reasonably probable or “more probable than any other theory” to have been the cause of Mrs. Bryant’s condition.

In Barnes v. Bovenmeyer, 255 Iowa 220, 122 N.W.2d 312, 316-317 (1963), the Iowa Supreme Court made it clear that proof of negligence alone does not entitle a plaintiff to go to a jury in a malpractice case. “There must also be substantial .evidence that it was the proximate cause of plaintiff’s damage.” See also Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 498-499 (1928).

We conclude that Mrs. Bryant failed to produce substantial evidence that the alleged negligence was the proximate cause of her damage and the judgment n. o. v. was properly granted for that additional reason.

Judgment affirmed.

LAY, Circuit Judge

(dissenting).

I respectfully dissent from the affirmance of the judgment n. o. v.

Although judges properly serve as an ultimate safeguard to prevent a miscarriage of justice and as such possess the legal authority to take away a jury’s finding of fact, nevertheless, the exercise of that power should be used only in exceptional circumstances. Unfortunately, this power is often exercised merely because judges sometimes feel that other results under the evidence are more reasonable than what the jury found. When this occurs we act without judicial authority. Tennant v. Peoria & Pekin Union Ry., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520 (1944). Judges possess no expertise in evaluating facts or drawing inferences from the evidence. When as judges we act as fact finders we draw from our human experiences and biases just as jurors do. Yet when judges attempt to decide questions of reasonable care and causal connection, we more often fall short of the valued expertise of the jury. In resolving factual issues judges cannot possess the community values and judgment of a composite jury in attempting to equate conduct in terms of the common affairs of life. See Railroad Co. v. Stout, 84 U.S. 657, 664, 21 L.Ed. 745 (1873). When a judge holds that a jury’s verdict is wrong on a factual basis, he substitutes his reasonableness for that of twelve individuals who have resolved their subjective reasoning into an objective analysis and result.

When this occurs the record should be so void of any substantial evidence that a court can objectively say that no reasonable man could ever differ in the result reached. It is impossible to say this on the present record.

The majority decision emphasizes that there is no expert opinion evidence to prove negligence or causal connection in this medical malpractice case. It is true that in medical malpractice cases it is held that the standard of care of a skilled physician is not within the general knowledge of a lay jury and under these circumstances expert testimony is generally needed. However, this rule is not to be interpreted so strictly as to require that the expert testimony should always be in the standard form which necessarily elicits an opinion as to the negligence and causation. Jurors apply common sense to all factual circumstances in arriving at a fair verdict. This is really their only tool. Trial lawyers seek opinion evidence to corroborate their evidence, seldom to prove the case itself. Indeed, opinion evidence offered by expert witnesses is nothing more than a swearing match by professional witnesses. In this day and age, even in malpractice cases, it is not overly difficult to hire expert opinion evidence on either side of a medical proposition. The law is not so stilted as to depend on such evanescent testimony. Significantly, our jurisprudence leaves it to the nonexperts, the jury, to determine which side of the case is more reasonable and just. In Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959), where the question of trauma as an aggravating cause of a tubercular condition was at issue, the Supreme Court cogently observed in the language of an Indiana case:1 “ ‘Indeed, if it were not for the saving grace of what we call common sense, justice would be defeated in almost every case where opinion evidence is admitted.’ ” 361 U.S. at 110 n. 3, 80 S.Ct. at 175.

Common sense dictated the jury’s verdict here. Although the standard form questions were not asked by plaintiff’s counsel and precise opinion evidence is absent from the record, nevertheless, there exists an abundance of expert testimony which adequately demonstrates the lack of reasonable care by the defendant doctors in making their examination and resulting diagnosis of Mrs. Bryant.

It is true that a mere mistake in judgment is not a basis of liability in a medical negligence case. However, to avail himself of the defense of a mistake of judgment, as has been observed, “it must appear that the physician used reasonable care in exercising that judgment. . . . ” Foose v. Haymond, 135 Colo. 275, 310 P.2d 722, 727 (1957). Iowa law is in full accord. Iowa law recognizes that a physician skilled in his professional calling must make a thorough and professional examination or liability for negligent diagnosis may follow. See Wheatley v. Heideman, 251 Iowa 695, 102 N.W.2d 343, 349 (1960). Application of this rule governs the proof of negligence in this case.

The fundamental issue is whether Dr. Rankin, a skilled practicing surgeon, was aware of and knew there was the possibility of low grade infection existing (even though it be unusual) which would not manifest itself by the usual clinical findings of redness, temperature and a high white blood count. There can be little doubt of this evidence since Dr. Rankin admitted in his own expert testimony his awareness of such a possibility. Once this fact was established and recognizing that a doctor must make a thorough examination, is it unreasonable to inquire as to whether the doctor did anything to rule out this possibility before he made his diagnosis of aseptic necrosis and elected to “wait and see?” The plain and simple fact is that Dr. Rankin admitted he did nothing to rule

out that possibility.2 Was there a diagnostic technique available to him which was followed in that locality to ascertain whether a low grade infection existed? Again by his own expert testimony he stated “had he suspected a low grade infection he would have aspirated the hip” in order to obtain a culture for study.3 Is a skilled surgeon to be excused because he did not suspect this infection since he relied on the absence of clinical symptoms which one doctor characterized as “Reader’s Digest and Good Housekeeping” signs of infection? At best is not this an issue of fact for the jury? Is this not especially true when the same physician admitted that low grade infection could exist without these symptoms?

Assume the owner of a truck took his vehicle to the garage to have its brakes fixed since they would not hold; assume that all the skilled mechanic did was to check and replace the brake fluid; assume the vehicle was returned and shortly thereafter the truck was involved in a serious accident because the brakes failed to hold when attempting to stop; and assume an inspection then revealed that the brakes were otherwise completley worn out and defective. Would there be any doubt that in the absence of an expert’s opinion the skilled garage mechanic would be held to have been negligent in failing to check out other possible causes for the brake condition? Cf. M. Dietz & Sons, Inc. v. Miller, 43 N.J.Super. 334, 128 A.2d 719 (1957). How is the skilled physician any different or immune from this same standard of care? The ordinary layman is no more a skilled mechanic than a skilled physician. Yet, it does not require an expert opinion to prove that reasonable care was not used in making a thorough inspection of the truck. There is greater reason that the same rule should apply to an examination of the human body. Is it not axiomatic in negligence cases that the standard of care required is commensurate to the risk involved? Foy v. Friedman, 108 U.S.App.D.C. 176, 280 F.2d 724 (D.C.Cir. 1960); Prosser, Law of Torts, § 34 (3d ed. 1964); Restatement (Second) of Torts, § 298 (1965).4

In addition to the defendants’ own admissions,5 which uniformly have been held sufficient to provide the required expert testimony,6 there existed other overall evidence for the jury to consider.

Expert testimony was adduced for the jury to consider that insertion of the Smith-Peterson nail in the femur includes the possibility of infection;7 that infection in any major joint in the body is considered a major medical problem in orthopedic procedures; that the condition of avascular necrosis can be caused by a septic as well as an aseptic condition; that low-grade infection, as found in Mrs. Bryant, is not associated with all of the “Reader’s Digest and Good Housekeeping” signs of infection (swelling, high temperature and general sickness) ; that low-grade infection is as significant as any of the more virulent forms of infection which might result from this type of surgery; that such a low-grade infection requires immediate treatment; and that severe pain as exhibited by Mrs. Bryant is generally associated with infection and not with an aseptic necrosis. In addition to the above evidence, the jury could consider that Dr. Schnell would have included evidence of infection as part of his differential diagnosis as early as October '26, 1965. Dr. Litton testified that his examination of the X-rays revealed the possibility of infection as early as the November 17 X-ray. Moreover, when Mrs. Bryant was transferred to the Columbia Medical Center the attending physicians’ initial diagnosis included the possibility of infection.

The majority opinion reasons that even assuming evidence of negligence there was no expert opinion as to causation.' This again totally and completely ignores the admonition and standard of the United States Supreme Court in the Sentilles case when dealing with a precise challenge to equivocal proof concerning medical causation.8 The Supreme Court observed:

tioner’s tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of the aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony, into consideration. See Sullivan v. Boston Elevated R. Co., 185 Mass. 602, 71 N.E. 90; Miami Coal Co. v. Luce, 76 Ind.App. 245, 131 N.E. 824. Though this case involves a medical issue, it is no exception to the admonition that, ‘It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. . . . The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. . . . Courts are -not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.’ Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, 35, [64 S.Ct. 409, 412, 88 L.Ed. 520]. The proofs here justified with reason the conclusion of the jury that the accident caused the petitioner’s serious subsequent illness. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, [77 S.Ct. 443, 1 L.Ed.2d 493].” (My emphasis.) 361 U.S. at 109-110, 80 S.Ct. at 175.

The majority opinion reasons that both of Mrs. Bryant’s experts testified that had the nail been removed and a spica cast applied in December 1965 or January 1966 rather than in March 1966, the results would probably have been no different. This analysis misses the critical issue. The issue is whether sufficient evidence was adduced upon which the jury could find a reasonable probability that the defendants’ failure to properly diagnose and treat the infection proximately contributed to the radical treatment ultimately required and resulting in Mrs. Bryant’s disabling condition.

Apropos here is comment (b) of the Restatement (Second) of Torts, § 433B (1965):

have occurred if the defendant had acted otherwise. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion -may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case.” (My emphasis.)

It is true that once again plaintiff’s counsel failed to produce any expert testimony specifically stating that the defendants’ action proximately contributed to the plaintiff’s condition. However, Dr. Schnell did testify that infection is always a serious complication in orthopedic surgery and that infection should be detected as early as possible in order to prevent destruction of the joint surfaces. Similarly, Dr. Litton testified that the sooner you find an infection, the better the chance is of obtaining a good result; he further related that as of March 1966 the extent of the infection necessitated removing the nail and placing Mrs. Bryant in a spica cast since “in the face of the infection that we had discovered there, we felt any attempt to do anything else would not be successful. And we knew that if she would get a solid hip fusion, she would have a very serviceable and a painless hip” (my emphasis) ; Dr. Schnell indicated that he would have performed other procedures when the infection was first noted with the expectation of better stabilizing the hip and reducing the amount of leg shortening; Dr. Anderson9 stated in his deposition that “[a] common cause in someone who you assume had an normal hip a short time previously for the cartilage to disappear is an infection.’’ (My emphasis.) The seriousness and destructive nature of infection is common knowledge to laymen. It should not require a doctor to establish that the presence of infection is not conducive to the body’s healing mechanisms.

In light of the above, it is difficult to reason that there is not sufficient evidence on which a jury could- find it reasonably probable that the failure to detect the infection contributed to Mrs. Bryant’s disabled condition. The fact that there is some testimony that the end result would “probably” be the same or that it is only “possible” that the infection caused deterioration of the femur is not, ipso facto, conclusive evidence that the case should be taken from the jury. Cf. Dickinson v. Mailliard, 175 N.W.2d 588 (Iowa 1970).10

A jury is entitled to draw reasonable inferences from all of the evidence to determine whether there exists sufficient probability that late discovery of the infection contributed to plaintiff’s disability. As the Iowa Suprem’e Court said in Daiker v. Martin, 250 Iowa 75, 91 N.W.2d 747, 752 (1958), “ . . . the question of [proximate cause] . . . was one of fact rather than medical theory or expert opinion and was for the jury to determine.” See also, Wheatley v. Heideman, 251 Iowa 695, 102 N.W.2d 343 (1960); Stickle

man v. Synhorst, 243 Iowa 872, 52 N.W.2d 504 (1952); cf. Marshall v. Humble Oil & Refining Co., 459 F.2d 355 (8 Cir. 1972). In Fireman’s Fund Insurance Co. v. Aalco Wrecking Co., 392 F.2d 179, (8 Cir. 1972), this court recently observed :

In Weintraub v. Rosen, 93 F.2d 544, 547-548 (7 Cir. 1937) (alleged malpractice in failure to discover and reduce a fracture of the femur), the court of appeals noted:

In Wilson v. Corbin, 241 Iowa 593, 41 N.W.2d 702, 708 (1950), the Iowa court observed:

Finally, the defendant-doctors argue that the lower court was correct in granting the judgment n.o.v. since the jury verdict necessarily involved speculation and conjecture as to the proximate cause issue. However, the forcefulness of any “speculation and conjecture” argument is effectively undercut by the Court in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946), where Mr. Justice Murphy states:

ble error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” (My emphasis.)

See also Jeanes v. Milner, 428 F.2d 598, 604-605 (8 Cir. 1970).

The record in the instant case reveals that the jury was properly charged as to proximate cause and admonished not to conjecture or speculate. The fact that the jury returned a verdict in favor of Mrs. Bryant indicates that they rejected the defendant-doctor’s speculative causal possibilities and in weighing the evidence found reasonable proximate cause.12 Cf. Marshall v. Humble Oil & Refining Co., supra.

I conclude under all of the evidence that the jury could find without opinion evidence13 that the defendants were negligent in failing to consider the possibility of a low-grade infection in making their diagnosis and in failing to use tests- known to them to determine whether infection existed as the cause of the plaintiff’s rapidly developing necrosis. I likewise conclude that the jury could legitimately infer from all of the evidence that the delay in treating the infection causally contributed to plaintiff’s long duration of pain14 and to the radical procedure ultimately used which has crippled a young housewife and mother for life.