Formont v. Kircher

420 P.2d 661, 91 Idaho 290, 1966 Ida. LEXIS 275
CourtIdaho Supreme Court
DecidedNovember 21, 1966
Docket9546
StatusPublished
Cited by17 cases

This text of 420 P.2d 661 (Formont v. Kircher) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Formont v. Kircher, 420 P.2d 661, 91 Idaho 290, 1966 Ida. LEXIS 275 (Idaho 1966).

Opinions

KNUDSON, Justice.

On May 29, 1961, plaintiff-appellant, while engaged in the loading of a horse into a truck, was thrown from the truck on to the ground, as a result of which he suffered, among other things, a compound comminuted fracture of the tibia and fibula of his right leg approximately 6 inches above the ankle joint.

Plaintiff was promptly taken to a hospital in Nyssa, Oregon, where he was treated by Dr. Kenneth E. Kerby, under whose care he remained until June 3, 1961, at which time he returned to his home at Paul, Idaho.

Upon returning to his home in Paul, Idaho, during the afternoon of June 3rd plaintiff’s wife contacted defendant, Dr. James R. Kircher, by telephone, under whose care plaintiff remained until June 19th, on which date plaintiff was transferred to the Bannock Memorial Hospital in Pocatello, Idaho, and into the care of Dr. David Nelson, an orthopedic surgeon. Dr. Nelson saw plaintiff for the first time on June 20th. Following examination, treatment and evaluation of plaintiff’s condition by Dr. Nelson during the five succeeding days, plaintiff’s leg was, on June 26th, amputated at about 6 inches below the knee.

By this action plaintiff seeks to recover damages from Dr. Kircher allegedly resulting from defendant’s negligence in his care and treatment of plaintiff. Trial was had before the court sitting without a jury, and judgment was entered in favor of defendant. This appeal is from the judgment entered.

[292]*292Although the trial court found that defendant was negligent in his care and treatment of plaintiff, the court also found that it was not established that such negligence was the proximate cause of the loss of plaintiff’s leg. Plaintiff contends that the court erred in so finding.

During our consideration of the questions presented by this appeal and as an aid to clarification of the facts, we shall follow the format adopted by the trial court by dividing the history of plaintiff’s injury and treatment into five periods:

Period No. 1 (May 29th through June 3rd) includes the time when the trauma occurred. The bones of the fracture were forced through the clothing and boot which plaintiff was wearing and into the barnyard earth which contained manure and other debris.

This space of time also includes the period during which plaintiff was hospitalized at Nyssa, Oregon under the care of Dr. Kenneth Kerby. As a part of Dr. Kerby’s treatment he debrided non-viable tissue and otherwise cleaned the wound; the fracture was manipulated and reduced; the skin edges were sutured together, leaving a small area for drainage, and a cast applied. The cast extended from just above the middle one-third of the right thigh to the toes. On the second day, due to swelling and numbness of the toes, the cast was split on the anterior side, up to the ankle. On the succeeding day by reason of tightness, due to swelling of the leg and foot, the cast was split to the knee. A combiotic, a combination of streptomycin and penicillin, was administered twice each day, and on the day plaintiff left the hospital at Nyssa he was changed to declomycin.

Period No. 2 (June 3rd through June 9th) The record discloses that upon arriving at their home in Paul, Idaho, during the afternoon of June 3rd, plaintiff’s wife called defendant by telephone and advised him of the date and nature of plaintiff’s injury; of plaintiff’s stay in the Nyssa hospital, and that plaintiff’s leg was in a cast. She also read to the defendant a note sent by Dr. Kerby which was a brief résumé of treatment which had been given plaintiff. The evidence is conflicting as to whether defendant was told, during said telephone conversation, that plaintiff possessed antibiotic tablets; however the court found that during this period plaintiff had medication which had been sent by Dr. Kerby. It is uncontradicted that defendant was at that time requested to provide medication for pain, which was prescribed. Plaintiff’s wife testified that during this period she called defendant by telephone on an average of at least every other day because plaintiff “was having so much pain.” Plaintiff testified that on Thursday, June 8th, he observed a watery colored spot about the size of a quarter on the cast, which developed, within a couple of days, into “a rather large brown spot.”

Period No. 3 (June 9th through June ISth) Pursuant to previously scheduled appointment, on June 9th plaintiff went to defendant’s office which was the first occasion defendant had seen the plaintiff. The details of this visit are also in dispute. It is undisputed that defendant took plaintiff’s temperature, X-rayed the fractured leg and stated to plaintiff that the position and allignment of the fracture were satisfactory. Defendant acknowledges that he at that time observed a spot on the cast approximately 2 inches in diameter which he stated to be dry and appeared to be normal drainage from the wound; that there was no evidence of active drainage from infection. Plaintiff testified that he expressed his anxiety concerning his condition and specifically requested defendant to open the cast and examine the wound; that he stated to defendant, “I am afraid the damn thing is going to rot off.”

Defendant’s office record relating to his examination and treatment of plaintiff on that day is as follows:

“6-9-61 .. .No temp, needs considerable pain pills (excp & cod. gr ss)
EXAM: Has cast to mid-thigh which split to just below knee.
[293]*293Has had bloody drainage in cast but no appearance fresh drainage.
X-ray-position OK cast OK
Rx. Percordon Carbitol
To Lower leg-
up for meals and bathroom ret in 1 wk.
prob tighten upper end cast.”

As concerns defendant’s treatment during this period the trial court found that

“On June 9, 1961, the Plaintiff’s supply of antibiotics was exhausted. The Defendant knew, or should have, in the exercise of the standard of medical practice of this community, known of this fact. Good practice demanded that anti-biotic therapy continue from this date for at least another ten days but the Defendant prescribed no antibiotics and supplied none to the Plaintiff. This was a departure from the standard of medical practice in the community.”

At this time an appointment was arranged for plaintiff to return to defendant’s office on June 17th.

Period No. 4 (June ISth through June 19th) Plaintiff’s wife testified that she called defendant by telephone on June 15th and told him that the cast on plaintiff’s leg was getting moist at the site of the fracture and that the odor was getting to be so bad that she could hardly stay in the house with him, and wondered if there was something that could be done; that defendant only advised them to keep the appointment [June 17] as arranged. Defendant admits that he received a telephone call from plaintiff’s wife on June 15th or 16th, at which time he told plaintiff’s wife “that inasmuch as he was coming to my office the next day, that this additional time would not make any difference.” In this connection defendant’s office record contains the following notation:

“6-15-61 Darvon 65 mg. q. 3^1 hours”

As concerns defendant’s duty following receipt of the telephone call above referred to, the court found:

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Cite This Page — Counsel Stack

Bluebook (online)
420 P.2d 661, 91 Idaho 290, 1966 Ida. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/formont-v-kircher-idaho-1966.