Opinion
No. 89-14987.
Decided May 1, 1991.
Gerald R. Horning, for plaintiffs.
Lee I. Fisher, Attorney General, and Mary J. Stepanic, Assistant Attorney General, for defendants.
On December 29, 1987, a snowplow, owned and operated by defendant, Ohio Department of Transportation ("ODOT"), struck a vehicle in which Michael Pace ("plaintiff") was a passenger. The impact caused plaintiff to strike the small finger of his left hand against the interior of the automobile. He also sustained various injuries to his neck and back. Plaintiff was transported to a nearby hospital where he received treatment for his injuries. Hospital records indicate that plaintiff's finger was swollen, but that he had incurred no more than a sprain.
Plaintiff went to the emergency room of the Kaiser Permanente Hospital on January 4, 1988, at which time, the treating physicians diagnosed the previously injured finger as infected. Over the next several days, physicians were unable to contain the scope or degree of infection. The tissues of the finger became necrotic, first at the tip, and this condition began to spread up the finger. Plaintiff was thereafter admitted to St. Luke's Hospital, where, on January 15, 1988, his finger was amputated.
On December 26, 1989, plaintiff filed suit against ODOT, contending that it was responsible for the loss of his finger as well as the attendant losses of wages, future economic value, and pain and suffering. He was joined in the action by his wife, whose complaint was for an alleged loss of consortium. The matter was tried before the court and is determined as hereinafter set forth based upon the evidence adduced by the parties.
At trial, the parties stipulated that the driver of defendant's snowplow negligently struck the automobile in which plaintiff was a passenger. Consequently, the only issue before the court is whether defendant's negligence proximately caused the amputation of plaintiff's finger.
The law applicable to the instant circumstances is set forth in 22 American Jurisprudence 2d (1988), Damages, Section 281, as follows:
"[A] tortfeasor runs the risk that the person whom [ sic] he injures may be in such condition that the injury will be far more serious than had such person been strong. Thus, one who violates the duty, imposed by law, of exercising due care not to injure others may be compelled to respond in damages for all the injuries which he inflicts by reason of the violation of such duty, even if a particular injury may have been aggravated by or might not have happened at all except for the peculiar physical condition of the injured person. This is the rule that the defendant takes the plaintiff as he finds him, or the `thin skull' or `eggshell skull' rule. * * *" (Emphasis added.)
This view is also set forth in the 2 Restatement of the Law 2d, Torts (1965) 502, Section 461, which states that:
"The negligent actor is subject to liability for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct."
A more particular explanation is provided by Comment a to this section: "A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent." See, also, Reeg v. Hodgson (1964), 1 Ohio App.2d 272, 278, 30 O.O.2d 293, 296, 202 N.E.2d 310, 315.
The preponderant evidence set forth by the parties indicates that a diabetic condition such as plaintiff's could easily metamorphose even a simple impact into a much more serious injury. The medical testimony was to the effect that diabetes interferes with the flow of blood to the major bodily organs, but especially to the extremities. Also, the capacity of the blood to carry oxygen to the cells is impaired by this disease, and markedly so as the amount of sugar in the blood increases. Additionally, when a trauma to an extremity, such as a finger or toe, causes swelling of the digit, the swelling creates internal hydraulic pressure that constricts the blood vessels and virtually eliminates circulation at the capillary level. The consequent suspension of the flow of oxygen to the damaged cells as well as the accumulation of cell debris in that area could easily result in cell death and necrosis of the affected tissues.
Medical records and testimony establish, by a preponderance of the evidence, that when plaintiff was brought into the emergency room on the date of the collision, his finger was noticeably swollen and had tenderness, i.e., was painful to touch. In fact, plaintiff's finger was so swollen that treating physicians feared plaintiff had a broken bone and they ordered x-rays for his entire hand. Apparently, the swelling later increased, as did the pain, and plaintiff was unable to wear safety gloves at work.
When plaintiff again sought medical treatment six days later, the finger was still swollen and the skin was unbroken. The treating physician lanced the finger, both to relieve the pressure from the swelling and to drain the accumulated pus and abscess material from the area. After the second lancing, the finger developed a noticeable odor and necrosis of the tissues had begun. There remained only a question of how much of plaintiff's finger could be preserved.
Defendant contended at trial that the degeneration of the tissues was caused by plaintiff's heroin addiction and, more specifically, that plaintiff created the infection by injecting drugs into the area. Such infection would purportedly result from a contaminated needle or from impurities in the material injected. The basis for defendant's assertion was a notation made by one of the treating physicians that plaintiff probably used drugs. This conclusion was based upon the physician's observation of needle scars on plaintiff's arm and also that plaintiff displayed slow responses to the physician's questions. Additionally, when questioned by the physician, plaintiff admitted that he had been a drug abuser.
The physician was unable to conclude with any degree of certainty that plaintiff had indeed injected himself with drugs during the time at issue or that any recent drug abuse had occurred. Nor was there expert evidence of any kind offered to prove that the infection was actually created through such a process. Instead, the preponderance of the credible evidence indicated that, while plaintiff had certainly been a drug abuser at a previous time, he had ended his drug dependency in the early 1980s, well before the events now considered. Furthermore, the evidence was conclusive that the skin of the infected finger had not been punctured, and, as previously mentioned, unrelieved pressure had built up in the finger.
Defendant also contended that, by failing to control his blood-sugar level after the auto accident, plaintiff acted negligently and so himself created those conditions that resulted in his infection. A diabetic controls his blood-sugar level by limiting his intake of sugar and by periodic injections of insulin. Evidence indicated that susceptibility to infection is increased for a diabetic when his malady becomes uncontrolled.
Plaintiff admitted at trial that he had failed to maintain his prescribed diet or to obtain the appropriate injections of insulin. Analysis of his blood, performed after the finger became infected, indicated a blood-sugar level of three hundred fifty-eight. A normal blood-sugar level is one hundred, and the sugar content of plaintiff's blood was sufficiently high to have possibly hindered the normal healing process.
However, none of the experts testified that a causal relationship existed between plaintiff's failures and the infection. There was, however, evidence that the onset of infection in the body causes the blood-sugar level to rise. While a reading of three hundred fifty-eight is an extraordinary amount of blood sugar for a normal individual, it is not so high for a diabetic. Medical testimony indicated that a blood-sugar level of one thousand might have been considered an abnormal reading for a diabetic.
Moreover, the preponderance of credible evidence indicated that a diabetic, such as plaintiff, will not heal well even if he has consistently maintained his diet and injected insulin. This is because of the reduced circulation in the extremities of the body. Thus, the capacity of the blood to carry oxygen to the damaged cells becomes irrelevant when blood circulation is cut off from the area.
It was established to a virtual certainty that plaintiff's finger had swollen immediately after the accident. Likewise, the finger was noticeably swollen and quite painful when plaintiff sought additional treatment. There had been no relief of pressure in the finger during the intervening time. The court therefore finds, by a preponderance of the credible evidence, that the necrosis of the tissues in plaintiff's finger was caused by a lack of circulation, which resulted from the swelling occasioned by an impact to that finger and plaintiff's pre-existing diabetic condition.
Accordingly, judgment is rendered in favor of plaintiffs and against defendants as follows: the sum of $12,000 to plaintiff Michael Pace for the loss of his finger, lost wages, pain and suffering, and for loss of earning capacity, which was substantially obviated by the loss of plaintiff's leg the following year; the sum of $3,000 to plaintiff Renee Pace for the loss of consortium of her husband during the time he was so afflicted. Plaintiffs are hereby awarded the total sum of $15,000.
Judgment for plaintiffs.