Summary
In Kuhn v. Banker, 133 Ohio St. 304, 10 Ohio Ops. 373, 13 N.E.2d 242, 115 A.L.R. 292, the court held that where there are two or more causes which might have produced the injury, for only one of which the defendant is responsible, and where there is no evidence to show to which cause the injury is actually attributable, a verdict should be directed for the defendant, the underlying reason for the rule being that there was in such case no evidence to justify the conclusion that the injury resulted from the defendant's malpractice.
Summary of this case from Watkins v. U.S.Opinion
No. 26509
Decided February 16, 1938.
Physician and patient — Malpractice — Failure to take X-ray photograph after setting bone — Evidence of negligence or unskillfulness presents issue for jury, when — Defendant entitled to directed verdict — No evidence that malpractice direct and proximate cause of injury.
1. In localities in which accepted medical and surgical practice requires that, if, after proper setting of the parts of the broken neck of a femur by the attending physician and a bony union has formed, there is a grating sensation in the broken parts, an X-ray photograph should be taken to determine whether there has been disunion of the parts through absorption, so that the broken bone may be reset if it has become disunited, the failure of the attending physician who has been in charge of the patient from the beginning to cause or advise the taking of such a photograph on learning of the grating sensation, until it is too late to reset the bone, the parts of which have become disunited through such absorption, is evidence of the negligence or unskillfulness of the attending physician amounting to malpractice and warrants the submission of that issue to the jury.
2. Even though there is evidence of malpractice sufficient for submission to the jury on that issue, a verdict must be directed in favor of the defendant where there is no evidence adduced which would give rise to a reasonable inference that the defendant's act of malpractice was the direct and proximate cause of the injury to the plaintiff.
APPEAL from the Court of Appeals of Summit county.
Amanda E. Kuhn, appellant, brought an action in the Court of Common Pleas of Summit county, Ohio, against appellee, Edward C. Banker, a physician and surgeon licensed to practice in this state, to recover damages for alleged malpractice in treating a broken hip bone sustained by plaintiff, a woman approximately fifty-five years of age, at her home on December 18, 1932.
The day after her injury the defendant was employed in his professional capacity to treat the injury; on his advice she was on that day taken to St. Thomas Hospital in Akron, Ohio, and on arrival there X-ray pictures were taken which disclosed an intra-capsular fracture of the neck of the left femur. The fractured limb was placed in a splint and about five days later another X-ray picture was taken, which showed the fracture had been reduced and the shaft in normal position. On January 12, 1933, still another X-ray photograph was taken which disclosed a bony union with the parts of the bone in good position. She remained at the hospital until January 23, 1933, at which time she was taken to her home and the leg was kept in a splint for about two weeks thereafter. When the defendant took off the splint at the end of that period, he twisted the plaintiff's leg and caused her much pain. He then told her to get up and walk with the assistance of crutches. At first the pain was so severe she found it impossible to get up; but she kept trying. A few days later the defendant again told plaintiff to get up and walk, and warned her that if she did not, she would have a stiff leg. Finally she got up on her leg and as she did so exclaimed: "My God, my hip isn't together, I can feel it grating." Then she fainted. When she told the defendant her leg was not together he said she was crazy and that it was the ligaments and cords that made the grating. Although the defendant for some time thereafter came frequently to her house to treat her husband for rheumatism, he did not advise the plaintiff to have another X-ray picture taken and (aside from giving her some tablets for pain and telling plaintiff she was crazy upon her saying that her leg "wasn't together," as she did from time to time) never recommended any treatment except that she should bathe the injured limb and walk on it and call his office if she wanted anything.
Acting on his advice, she finally succeeded in walking with the use of crutches and kept on doing so until about June 15, 1933, when she went to the Akron Clinic and had an X-ray picture taken which showed there was no bony union of the broken parts.
On July 10, 1933, she consulted Dr. Walter G. Stern, an orthopedic surgeon of Cleveland, Ohio. On examination he found that she had a shortening of the left limb, that the left foot was rotating externally so that when she was on her back on the table, the foot was turned outward to such an extent that the outer side of the foot or leg was on the table and that she was unable to raise the limb by her own strength and any attempts by him to turn the limb inward was accompanied by a contraction spasm of muscles about the hip and expressions of pain from her.
Dr. Stern, the physician, the only expert witness called, testified in substance to the following: Accepted surgical practice required that the defendant, upon becoming aware of the statements of the plaintiff to the effect that there was a grating when she attempted to walk and the broken ends of the bone were not together, should have taken an X-ray photograph to ascertain whether the bony union had disappeared through absorption, and on discovery of nonunion by reason of such absorption there should have been remanipulation or rubbing together of the broken ends of the bone causing fluid to exude and then the bones should have been reset. After union is had absorption frequently takes place and brings about disunion at the point of original breakage. The grating sensation could come from a disunion or certain other causes. After a bony union has taken place a disunion could have been caused only by breakage or absorption. There was no evidence of a second breakage of the bone, and the disunion could have resulted only from absorption. When the plaintiff came to him it was too late for him to attempt to obtain another bony union by remanipulation and resetting. All he could do was to perform an operation, which he did. He took out the ball or head of the bone and shaped up the broken end of the crook of the femur so it was more or less round, and put it in the socket and wired it. This operation took place on or about July 26, 1933, and resulted in a fifty to seventy-five per cent disability from active occupation.
It further appears from Dr. Stern's testimony that in cases of the type of fracture involved here, especially to persons from forty-five to fifty-five years of age, there are only twenty to thirty-five per cent of cases wherein there is a failure of the bones to unite with the best care that could be given. On resetting after absorption the chances of a bony union are not more than one-fourth as good as the first time.
We quote from Dr. Stern's testimony verbatim:
"Q. Now, let me ask you this question, would it make any difference, would there be any difference once the absorption took place, and the surface of the end of that bone had become smooth and ceased to bleed, or having a tendency to throw out callus, once that occurred, would the length of time that expired have any effect one way or another as to a later treatment of trying to agitate those bones together? A. Yes, sir.
"Q. In what respect? A. Well, it is our experience that after a good three months has elapsed that it is useless to expect healing under those conditions, it is only exceptional, very exceptional that healing takes place, very exceptionally so.
"Q. That is why, at the time you got this patient, you did not attempt the method which you say you thought ordinarily you would have attempted, or at least you would have attempted had you discovered the absorption of the union at the time that the patient first complained about it? A. Yes, sir.
"Q. Now then let me go to this question, assuming upon the facts that you have here, that there was no bony union at the time that this cast was taken off of this leg, and this patient was suggested to move her leg, assuming also that at that point an agitation had been made of the ends of that bone, with a view to causing new callus to take place, and differentiating between the words possibility and certainty, and probability, was there any reasonable probability that a bony union would have taken place upon such treatment that would have remained a bony union? A. Would you let me use the word 'possible'?
"Q. Well, I don't want 'possible,' we deal in the court room with probabilities. Now, what probability, was there a greater probability that a union would have taken place and remained, or was there any greater probability in that respect? A. It was a lesser probability.
"The Court: Anything further, gentlemen?
"Redirect Examination:"Q. (By Mr. Ormsby): Lesser than in the first instance, you mean? A. If understood the Judge's question correctly, it would be whether there was a greater or lesser probability of the union upon a remanipulation of the bone, such as I have described.
"Q. Whether the probability was greater or less as to forming union? A. I say the probability was less.
"Q. By having it let go three months, whatever chance there was, was lost? A. Yes, sir.
"Recross Examination:"Q. (By Mr. Nesbitt): You used the word 'possibility.' Of course, if there had been an absorption of this callus of this bone by nature, there would not be very much probability after that of any uniting of that bone by any natural process, would there? A. Not much probability.
"Q. There would be very little probability, would that be true? A. It would be enough that I would think warranted in trying it.
"Q. Would you say to the jury had that been done, that the probabilities are that this condition that you found would not have resulted and the work that you were required to do, would not have had to be per-formed? A. No, I can't say that."
The trial court, at the conclusion of plaintiff's case, sustained the motion of the defendant for a directed verdict and rendered judgment in defendant's favor. After the Court of Appeals had affirmed the judgment this court allowed a motion to certify the record.
Mr. N.M. Greenberger, Mr. W.A. Spencer and Mr. Fred Ormsby, for appellant.
Mr. R.H. Nesbitt and Mr. R.G. Jeter, for appellee.
The sole question presented is whether the trial court committed prejudicial error in directing a verdict for the defendant.
To maintain her action the plaintiff was required to prove not only negligence or unskillfulness amounting to malpractice on the part of the defendant but also that the act of malpractice was the proximate cause of injury and damage to plaintiff.
The appellate court took the position that the evidence was sufficient to establish prima facie negligence on the part of the defendant but that there was lack of proof to show that the negligence was the proximate cause of injury and damage.
What was the proof of defendant's negligence?
The bony union which results from a proper setting of the broken parts of the neck of the femur may be followed by a disunion through absorption by the processes of nature within a few weeks after the union takes place. This disunion can be disclosed only by an X-ray picture. In the instant case there was evidence to show that accepted practice required photographing by X-ray at the time the absorption could reasonably be expected to have taken place, if at all, to determine whether there had been such absorption. The evidence further shows that after the first setting there was a bony union, and that when plaintiff attempted to walk at about the time an absorption might have taken place she felt a grating sensation in the hip and complained to the defendant that the broken ends of the bone were not together, and that thereafter no X-ray photograph was taken or advised until too late. Under the circumstances there was evidence that required the submission of the issue, of negligence of the defendant to the jury under the rule laid down in Ault v. Hall, 119 Ohio St. 422, 164 N.E. 518, 60 A. L. R., 128, and in Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, and kindred cases.
Was there evidence of proximate cause which required the submission of that issue to the jury? In directing a verdict the trial court said: "The testimony is undisputed showing that, instead of a greater probability of the fact being that the condition would not have resulted except for the negligence of the doctor, the evidence indisputably shows that the greater probability of the truth is that it would have resulted whether the doctor had been guilty of negligence or not."
In cases of malpractice in which the tortious wrongdoing consists of an act of omission, the causa causans is usually difficult of ascertainment and frequently impossible of proof. A good illustration is presented by instances in which the neck of the femur is broken and the surgical treatment consists of an attempt to bring about a union of the parts by placing and maintaining them in apposition. The uniting of these parts after setting must be accomplished by the healing processes of nature, and essentially there is always the possibility that nature will fail to achieve the desired result even when the attending physician has properly done everything known to surgical science; similarly, if the treatment has been unskillful or negligent and the broken parts do not unite there is, too, the possibility that the nonunion would have resulted even with due care and skill on the part of the physician.
Proof of proximate cause in cases of this kind is not dependent upon the percentage of recoveries to normal condition of the broken neck of the femur in a number of like cases over a given period of time. The law of causation can not thus be reduced to a mathematical certainty through the medium of statistical experience in other surgical cases in which the patient has suffered a like breakage. Were the rule otherwise, more than fifty per cent of recoveries would be sufficient to require submission to the jury and fifty per cent or less would necessitate direction of a verdict for the defendant.
There are numerous reported cases in which it has been held that where there are two or more causes that might have produced the failure of the bones to unite, for only one of which the defendant is responsible, and there is no evidence to show to which cause the nonunion is attributable, a verdict must be directed for the defendant. Such cases are collected in Hubach v. Cole, ante, 137, 140.
A careful analysis of such cases lends logically to the conclusion that the underlying reason for the rule is that there was no proof that the failure of the bones to unite was probably caused by the alleged act of malpractice. This element of probability in maintaining the affirmative of an issue is recognized in this state. Davis v. Guarnieri, 45 Ohio St. 470, 15 N.E. 350, and Cincinnati, Hamilton Dayton Ry. Co. v. Frye, 80 Ohio St. 289, 88 N.E. 642, 131 Am. St. Rep., 709.
The jury deals with probabilities and it is for the jury in weighing the evidence to determine where the probability lies. If a jury finds from the evidence that a fact probably exists, then it has been proved by a preponderance of evidence.
In Davis v. Guarnieri, supra, at page 490, the court says: "It is not necessary to the determination of, the issues in a civil case (with very few exceptions, of which the present is not one), that the triers should believe the existence of any material fact, but that the probabilities, when weighed by them, preponderate in favor of the fact which they find to be established by the proof. It is legally and logically impossible for it to be probable that a fact exists, and at the same time probable that it does not exist." This language is cited with approval in Cincinnati, Hamilton Dayton Ry. Co. v. Frye, supra.
The exceptions referred to are cases in which a higher degree of proof than the greater weight of the evidence is required.
In Gedeon, Admr., v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924, at pages 339 and 340, it is pointed out in a discussion of proximate cause that the tort-feasor is legally liable only for the probable consequences of his wrongful act.
The principle that the efficient cause of a result in malpractice may be proved by evidence of reasonable probability of legal nexus between the wrongful act and the injury finds support in leading cases. Lippold v. Kidd, 126 Or. 160, 269 P. 210, 59 A. L. R., 875; Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492.
In the instant case the court is dealing with the problem of a directed verdict and only a question of law is presented for determination. Jacob Laub Baking Co. v. Middleton, 118 Ohio St. 106, 119, 160 N.E. 629.
The rule on directing a verdict is stated in Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St. 469, 189 N.E. 246: "Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him."
In applying this test in various cases that may arise the nature of the proof must be kept in mind. The evidence adduced may be direct and positive as to all ultimate facts, or the evidence may be direct or circumstantial with one or more of the ultimate facts left wholly to inference. Thus in some cases proof of proximate cause may be positive and in others inferential. In the case at bar, if there be any proof of probability of direct causal connection, it must arise as an inference from the evidence adduced. Proximate cause was an ultimate fact to be proved by plaintiff and, before the trial court could submit the case to the jury, there must have been evidence which would warrant the jury in drawing an inference of probability. There is no such evidence in the record; in fact the evidence is that there was a lesser probability rather than a greater that bony reunion would have taken place. Under the circumstances reasonable minds could reach but one conclusion on this issue and that unfavorable to the plaintiff.
The instant case differs from most of the reported cases in that the record shows that the chance of reunion of the broken parts of the bone upon a remanipulation and resetting was lost because the defendant had let the patient go on walking with crutches for three months without taking an X-ray photograph or giving other attention to the breakage. That evidence leads to the inquiry whether the loss of the chance of reunion may be the basis of an action on the theory that the tort has directly caused the loss of chance and resulted in damage. This theory is advanced in Craig v. Chambers, 17 Ohio St. 253, 261; Rogers v. Kee, 171 Mich. 551, 137 N.W. 260, 265; Burk v. Foster, 114 Ky. 20, 69 S.W. 1096, 59 L.R.A., 277, 279; holding the theory untenable is Connellan v. Coffey, 122 Conn. 136, 187 A. 901. No other cases have been found dealing specifically with this question.
In Craig v. Chambers, supra, the action was for an alleged malpractice of the surgeon in treating a dislocated shoulder and injured arm, which resulted in a verdict for the defendant. In the opinion on page 261, this language appears: "But, in view of one part of the argument of the counsel of the defendant in error, it is proper to say, that we suppose that any want of the proper degree of skill or care which diminishes the chances of the patient's recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury. " (Italics ours.)
A close examination of this case shows what was said by the court was at best obiter dictum.
In every case of malpractice, there would be a loss of whatever chance of physical recovery might come from proper medical and surgical treatment; but there may have been no real chance of recovery, for nature might fail to cure in any event. The problem of causation gets back to its original position; there may be malpractice in failing to use the care required by law in treating a broken bone, followed by loss of chance of recovery which might have been possible with proper treatment, and yet the case be one in which there could be no healing of the bone even with the best treatment. As has been stated, the patient cannot recover damages unless the act of malpractice is the direct and proximate cause of injury. Loss of chance of recovery, standing alone, is not an injury from which damages will flow. Connellan v. Coffey, supra.
Since there was no evidence from which proximate cause could be reasonably inferred, the trial court did not err in directing a verdict for defendant and the appellate court did not err in its judgment.
The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and ZIMMERMAN, JJ., concur.
GORMAN, J., concurs in the syllabus.