*1 MARINE INSURANCE FIRE AND PAUL ST. PROTHRO COMPANY Jim CA 79-133 24, 1979 delivered October
Opinion 3,1979.] December review denied for [Petition 5, 1979 December for and released publication P.A., & Phillips, Shackleford, appellant. Shackleford *2 Prewitt, Brown, & for Compton appellee. Prothro, 76- a H. Appellee Pilkinton, Judge. Jim James man, at El was a in Warner-Brown
year-old Hospital patient Dorado, Arkansas, awith fractured surgery hip. Following 21, 1974, to a or metal ball on October prosthesis implant an of into the Mr. Prothro developed right hip, aureus, infec- as a known commonly staphylococcus of as the result tion. He this infection was acquired alleges incident the during physical patient’s surgical therapy wound was reopened. from a circuit of the court appeal judgment in a verdict the sum of
entered on jury appellee $75,000,0o.1 no evidence to contends there is substantial
Appellant verdict. the in to used the tests reviewing findings to substan- well in Arkansas. As the established appeal evidence, we will the conclu- the not disturb tiality jury’s sion on we there is reasonable unless can say appeal version, then after in favor of only appellee’s probability to in favor of effect giving legitimate presumption 518, Beard v. jury findings. 249 459 Ark. S.W. 2d Coggins, Co., (1970); 791 v. Hembree Oil 245 Ark. Fanning 434 S.W. 2d 822 (1968), and LumbermensMutual Co. v. Ins. 245 Cooper, Further, (1968). the suf- Ark. 2d S.W. testing substantial on appellate ficiency review, being need we consider only is most favorable to the
and that the evidence which part Lovev. H. F. ConstructionCompany, appellee. 15, 17 (1977). most favorable evidence, light viewed was in Mr. Prothro surgery shows following
appellee, Part recovery. normal a was making hospital Court, Supreme the Arkansas appealed 1This case 29(3). under Rule Appeals to the Court of Arkansas assigned court in a treatment involved physical therapy post-operative bath. atten- bath, known as Hubbard A hospital whirlpool over the Mr. in a basket dant was Prothro swing lowering came when a the basket Hubbard bath chain attached Mr. The attendant Prothro to fall. caught apart allowing somewhat, the metal his fall but and broke part patient, sur- basket struck Mr. Prothro on the hip right reopening result, and was to bleed wound. As began gical an un- unsterilized to the bath water. Subsequently, exposed over the wound the order- sterilized towel was bath placed blood; to his and the was returned ly stop patient reported duty nurse, to the The incident was room. did not examine or the nurses Mr. Protho treating but wound but it with cleanse the reclosed only tape. *3 but should have made a record the incident Wharton, did not. Dr. B. who was Mr. Prothro’s doc- Joseph tor, and wound next discontinued any inspected day bath, further baths. Prior in the accident whirlpool none of doctors or Mr. had in- nurses Prothro treating formed that he was from an He him infection. suffering were to him. testified infection evident symptoms Mr. first that he was Prothro noticed having problems bath. He ex- several after incident in the Hubbard days and ache all over his He had began body. perienced rigor These fever and was told for first time he had an infection. continued after was from the released problems appellee was red and area around the hospital, and was inflamed. Additional on Mr. Prothro’s surgery hip of the ar- and infection the removal necessary required tificial had in the second that been prosthesis hip. placed operation February performed Bundrick, William S. surgeon, Shreveport, orthopedic of his Louisiana. attributes the hip staph Appellee in the incident Hubbard bath. It is severe admitted all that Mr. Prothro suffered infection. now has no has what ball or in his He
Appellee joint hip. known “flail” difference is as a there several inches is hip, the left. He with right leg length compared there is con- is walks with a undisputed limp, to Mr. Prothro’s siderable and serious damage permanent body. admits, for the also appeal, purpose
Appellant bath constituted the occurrence in the Hubbard negligence. is issue, therefore, sufficient The main is whether — that such the incident during physical negligence — infection. caused the therapy is no evidence that contends there substantial Appellant infection was caused by proximately appellee’s staph Mr. Prothro’s as a layman, testimony, hospital negligence. to a conclusion that alone leads reasonable standing of the sur- infection did not exist to the prior reopening in the bath. wound and was the result of the occurrence gical contends, however, that if the injury Appellant origin or obscure and not to a layman, subjective readily apparent condition, or there are several causes of the probable causation. says essential establish Appellant case, this is such a claims substantial lacking issue to have been for this necessary proper- submitted to the ly jury. 925, 481
As out Davis pointed Kemp, is well (1972) rule in cases the applicable malpractice *4 Sisco, 6, 449 settled in Arkansas. Grahamv. Quoting 949 said: (1970), 2d S.W. our Court Supreme medical the introduction necessity expert in con- cases was exhaustively testimony malpractice Trammell, sidered in Lanier v. Ark. is not (1944). There we held that expert when the asserted lies within
required negligence such as a sur- of the or laymen, comprehension jury a his instruments or to remove failure to sterilize geon’s other before it. from the incision On sponge closing hand, not is a standard of care applicable matter of have the common must knowledge assistance of witnesses in a conclusion expert coming the issue of negligence. based
This is an action for damages upon negligence, rule However, the same not says appellant malpractice. as we have issue causation such should be to an applied of the words, cause other contends the us. In before appellant not be a us in the case before would infection staph some and to the therefore matter of common knowledge jury, for us It not necessary required.2 so, not because we do do decide and that specific question, is some favorable expert testimony an unsterilized towel placed case. There is also that proof over the wound. reopened is noted bacteria
Dr. Bundrick said the staph presence He sick there. the reason you hospitals, being people infection, and it is serious said can’t you explain staph that Both doctors testified wounds. danger conditions, under does present fully profession, infections, does not all the and understand causes staph know how to control it entirely. fall of the
As or not the and to whether reopening is relevant as a factor in transmission bath determining Prothro, to Mr. following testimony “staph” Bundrick, who the second performed orthopedic surgeon and the metal ball from the removed operation hip, applicable: doctor, then if And we didn’t know about
Q, anything medicine, if we were a we and were lay jury, just using our own if he didn’t have the reasoning capacities infection he had all went staph hip surgery to the and then broke the way joint wound open site, infection at we got would almost of two, reason relate the would we not? necessarily Yes, if know he you had at the site. *5 fact, As a matter of have a did infection at
Q. staph site, did he not? Fowler, (1957), 2d 97 313 P. where Whaley App. 2See 152 Cal. required. culture of I know of any I that because don’t A. can’t say that wound. doctor, infection this But, the only staph place
Q. itwas was at the site of hip surgery, manifested itself not? Yes, in the
A. deep hip. infection manifestation didn’t any HeQ. his he? else in did body, anywhere I saw him. at the time A. Not was for treatment entire And
Q. your the site of that at hip surgery? right A. That’s correct. was? that’s where trouble And
Q.
A. correct. That’s was ask- At in his Bundrick another testimony, point ed following questions: said be true that in what Mr. Prothro
Q. Assuming and the situation device used to lift physical therapy him broke him in the tub and fell collapsed wound, of that wound would that breaking open of bacterial in- make source that wound is, infection? fection? That for bacterial opening back the wound Yes, up think I anything opened infection. make would susceptible it was infection that it be more susceptible Would Q. after it was sutured?
A. Yes. more, it not? Considerably *6 Yes.
A. in the of a wound true that the Isn’t not opening Q. where bacteria is room from the away operating hospital out, true that the is it opening fought room from is very dangerous? away operating it drain like Yes, are about letting A. unless talking out. of a wound accidental I am about talking opening
after a surgical procedure. Yes, of it would be a infection. danger medical favorable There other testimony appellee, that we cannot with the appellant agree record in the plaintiff- testimony supporting infection was caused by that the theory appellee’s this bath. And incident Hubbard point, to some of Mr. is entitled probative Prothro He that the which states attended in- pain weight. until the fall in bath fection did not or exist after develop wound. his which While was reopened those or things a testify layman, probably or conditions in connection with his bodily facts injuries from man of science is which a layman distinguished capable observing. Trammell, Lanier v. Court
In supra, quoted Supreme with law: following approval principle in his “Medical discusses Herzog, Jurisprudence,” sustain quantum necessary recovery proof 161, 162, rule 186): down this lays
malpractice, (pp. § “It is not a shadow doubt necessary beyond prove caused by injury negligence preceding it, but a of the causal rela- probability showing strong tion is . . . Where sufficient injury negligence connection them es- causal between may proved, evidence, inferences tablished circumstantial from facts.” physical circumstantial, does not
Though mean it must be conclusive a reasonable doubt. beyond States, (1966). v. United 248 F. Kapuschinsky Supp. burden does become onerous because
legal upon appellee the evidence is circumstantial, out in though pointed the “burden of is more Kapuschinsky necessarily persuasion” nature, difficult. In cases of this direct evidence is difficult to Trammell, obtain.3 The court in Lanier v. also supra., quoted Bridenstine, with from Helland 470, v. 55 104 Wash. approval 626, P. where the Court of said: Supreme Washington was not to her case “Respondent required prove beyond reasonable doubt nor direct or evidence. It was by positive that she show a chain of only necessary circumstances from which the ultimate fact to be established is required reasonable and inferable.” naturally Vernon,
In v. 57 611, 178, Ind. 105 N.E. Longfellow App. 185, at it is stated:
When facts some them are having testimony prove stated to a witness hypothetically having requisite scientific to form and knowledge express opinion and he based thereupon, gives expert opinion thereon, such evidence is to be considered by case, with other and should be along testimony such as the under given instructions weight jury, proper court, from the it deem to merit. or The fact that all may of the statements in such part hypothetical question may depend entirely proof upon witnesses who have testified to them will nonexpert such value, deprive but the ex- testimony probative based pert thereon will be and con- testimony weighed sidered the rules by such governing weight and, if a fact such generally; by supported be found cannot be proof said to jury, result of a mere or to be guess, wholly unsupported evidence. States, (1966) 732 notice judicial 248 F. Supp. 3In v. United Kapuschinsky reluctance of recognized court termed well
was taken of what is where a testify in cases profession the local medical members of with charged negligence. 1028 rule, to the case and is think this a sound applicable
We before us. use Arkansas law the questions hypothetical Co. Insurance v.
well settled. New Empire Taylor, Inc., Co., Feed & (1962), 4 Shaverv. Parsons 2d Supply McClintock, 690, see Ark. also Taylor 322 S.W. 243 at 294. was made any Ark. No objection case us and asked before hypothetical questions additional counsel for defense had the opportunity put facts, before the not included in the original question(s), medical witnesses on cross-examination. LaCroix, 2dP.
In case of Robertsonv. Okla. App. some (1975), after stating principle said: the court required, *8 However, of medical witness that testimony event, a certain have been caused by could injury evidence layman with the corroborating together which layman to those facts concerning injury sufficient to allow issue of bemay observing capable of be submitted to the jury. causation not in a of infection mere fact The enough hospital Bartlett v. See the door of damages. Argonaut awarding (1975), 258 Ark. 523 S.W. 2d InsuranceCompanies, Co., Pilcher, 11, 424 2d & 244 Ark. S.W. Aetna Casualty Surety However, on these cases can (1968). distinguished facts from the their present litigation. issue or here is in every
The evidence sharp dispute, in the trial contested below. fact involved was hotly important that his wound “burst” For Mr. testified Prothro example, that the site to the effect his testimony open, Dr. Wharton and in a material was broken way. open deeply no on did not think so the doctor had the other hand although had made record recollection of the incident and personal could not this of the matter. Dr. Wharton concerning phase oc- even first remember Mr. Prothro reported currence Hubbard to him. doctor in the bath thought from but was Prothro was the hospital after Mr. discharged not He admitted that he the baths could be certain. stopped in about the time Mr. Prothro he told November early says in most cases Wharton. Doctors and are busy people, over worked. It is understandable that Dr. Wharton could not remember all of the details after a material time. lapse too, Dr. some Then Wharton on dependent degree records, records made which people indicates, evidence were not reliable or very complete many respects. Dr. Bundrick and Dr.
Although Wharton were of the the fall and opinion of the wound in the bath did reopening not cause Mr. Prothro’s infection, a of Dr. Bun- part drick’s does support the case. appellee’s theory with the together Prothro and Richard Jim was sufficient to the trial court justify overruling James defendant’s motion for verdict, a directed this submitting issue to the and in jury, denying defendant for a prayer judgment the verdict. withstanding Even we feel that the though strongest issue of causation was offered fact, appellant, course, would not a reversal. We justify are only permitted under the law to determine whether there was substan- any tial evidence to the view of the prevailing litigant. Brannon, Mallett v. (1969). evidence is in issue sharp dispute, every involved was hot- contested in the trial ly below. Each issue was submitted to *9 the under instructions jury which are proper not questioned The has decided appeal. the fact issues in jury favor of the and we cannot appellee, there nois sub- conscientiously say stantial evidence to the verdict. also
Appellant verdict excessive argues because the amount awarded by included the con- jury infection. sequences We need not staph consider this argu- ment since we find the issue infection was involving staph submitted to the properly jury.
Affirmed.
Penix, dissents. J.,
1030 reverse. I F. Penix,
Marian dissenting. Judge, verdict, to overturn I have reluctance jury great Although Ward, Harmonv. 202 Ark. the evidence. by unsupported Barboro & Co.v. (1941); James, 149 2d 575 A.S. S.W. Ark. 2d 202 Nuckols (1943); Flynn, S.W. felt verdict reflects (1958). The sympathy I, too, for the feel for the injured compassion plaintiff. who has suffered obviously 76-year-old greatly. However, not I do suffering feel caused act proximately negligent appellant. the answer to finds majority “hypothetical Dr. Bundrick redirect ex- question” propounded evidence. Here to be substantial have they amination enlarg- ed at- of this between exchange appellee’s importance and Bundrick. torney then, doctor, if we know about And didn’t
Q. anything medicine, if we we were were and lay jury, using just he didn’t our own and if capacities reasoning all infection he had the that went staph hip surgery then he broke way joint site, infection at we would almost got staph two, reason would we not? relate necessarily Yes, would if know he had a infection you at the site. fact, as a have a And matter did site,
at the he not? did I A. I can’t that because don’t know of culture say any that wound. is deficient for two reasons: “hypothetical question” can experts. only posed
1.
questions
Hypothetical
use of the
make
expert’s special
their
It is
design
and expertise
and expertise knowledge
knowledge
—
asked of Dr. Bun-
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possessed
*10
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asked
drick
expert
know
“.
. . if we didn’t
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answer
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.
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.
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.”
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Bartlett v.
Ins. Co. 258 Ark.
523 S.W. 2d
Argonaut
(1975)
v. Murl Pilcher
and Aetna
&
Co.
Casualty Surety
al,
et
(1968)
Q. you Mr. Protho February 1975, what was the condition of the wound surgical it? you saw wound was well-healed. Surgical itWat Q. draining?
A. No. doctor, Based Q. did finding, you opi- nion to whether the infection at the sur- developed site? gical
A. In my would abe blood-borne infection opinion, because this would be really only way you get could the infection into without hip joint proper having sinus. If it came from without and the draining area, I would sinus or which track expect draining down to the goes joint. hip words, In other if the made its micro-organism incision
entry portal through being surgical to have found infection from within the expect incision itself down into the hip joint? *11 sinus track. A. Right, draining first case, In found none you particular you him on first occasion? examined the No, was well-healed. the wound Did understand in the Q, you and material that history were able true, to review that that was the wound never drained?
A. That’s correct. to the “hypothetical” The answer predicated question at the site the the opening being record that the wound.There is absolutely itself at of the wound. infection manifested opening all, there is no substantial If there is no evidence at certainly evidence. evidence, new rules
Although particularly to his directly, appellee permit give opinion a fact resorted to a assuming question, “hypothetical” evidence, from his the desired answer in order to try get Bundrick, witness, Dr. Bundrick’s and circumvent own his witness’ has abused unfavorable testimony. testimony. where there are many expert jury apt, especially voluminous, to remember
witnesses and the evidence witness, with lit- net merely accept opinion on which it tle or no reference to the special premises Thus, from the if counsel were select based. most circumstances favorable evidential to his or least favorable to those opponent, party, thereon, that if the it is obvious obtain an opinion nature the partial opinion’s premises, jury forgets them, when count with perhaps may opinion and the at all. Now the law judge not to count ought offers course, cannot, of reject legitimate expected occasionally may of evidence because simply fail to But the Court may its perform intelligently. duty well under the interfere to which are prevent questions valueless, either in- circumstances and are practically Courts, or tended mislead Some fairly likely jury. at the not uncommon abuse the hypothetical looking to forbid question, putting properly attempted *12 abuse of this sort is whenever the questions probable. Evidence, (Third at 808-809 Edi- Wigmore §682, page tion, 1940). answer the Bundrick’s “hypothetical” question the a medical which only by expert supports contention of cause. As a matter law
appellee’s proximate by hypothetical question posed appellee deficient. The affirmance on this based majority demonstrates wants “hypothetical” question why Wigmore courts to abolish the use of the hypothetical question. misused hypothetical clumsy question, clever,
abused to intolerable has led practice obstruction truth. In first it has place, artifically witness, so that mouth his clamped expert to a answer complex actual question may express on the actual case. opinion Wigmore,supra §686. nd no evidence to verdict that of other than himself. This is not In a situation where plaintiff enough. or the normal injury damages beyond experiences understanding jury, expert testimony required. does not exist. has admitted for the in- appellant liability negligent cident of the I would reverse and for a hospital. remand deter- mination owed due to the damages negligent Therefore, incident itself. I dissent. respectfully