Seifter v. . Brooklyn Heights R.R. Co.

Parker, Oh. J. The only serious question presented in this case is whether the guessing of medical experts, based upon inaccurate hypothetical questions, to the effect that a broken bone in the ankle, which did not perforate the skin, caused septic pneumonia four and one-half months afterwards, furnishes sufficient support for a verdict of a jury awarding damages against the negligent party for the resulting death. The. question of the defendant’s negligence will not be considered, for it can be said that there was some evidence in its support. 27or can there be any reasonable doubt of the proposition that the.most favorable view of the'evidence would justify the submission of the question to the jury whether the plaintiff was free from contributory negligence. But whether *257 there was evidence in the record authorizing the jury to find, •as they necessarily did, that the injury which the plaintiff received was the proximate cause of his death four and a half months afterwards presents a very different question. After the accident, which the jury have found to be due to a collision between one of the defendant’s cars and the wagon of plaintiff’s intestate upon which lie was riding, the latter was taken to the hospital, where it was found that he had sustained a simple fracture of the left fibula, which means that the broken bone did not perforate the skin. Ambulance •surgeon Dr. Love reduced the fracture and attended the patient until the arrival of the regular house surgeon, Dr. Schall, who thereafter continued the treatment. His stay at the hospital lasted about five weeks, during which time his weight was reduced from 260 to 210 pounds, and upon his return home his appetite was bad; he could not sleep, nor could he walk, except with the aid of crutches. About three weeks after his return to his home Dr. Schall called upon him and removed the plaster cast which had been about the injured limb, and made an examination of the fracture, which disclosed to him that the bone had united perfectly and that there remained the usual swelling and soreness incident to the presence of the plaster east and nothing more. This was about the middle of February, and a little later a swelling on Mr. Seifter’s thigh troubling him, the family sent for Dr. Love, who prescribed a liniment which being applied a few times, the swelling disappeared. From this time on until the twenty-first of April, no physician saw Seifter, but Mrs. Seifter testified that a .few days after the first of February, when Dr. Love left, three lumps, each as large as two fingers doubled, appeared in the groin, and she also noticed that he had chills, and at the same time was warm •and sweating. She testified that these chills continued right along, and that the lumps remained in the groin without change until his death on May second. The daughter also •observed the presence of the lumps and believed that they remained until her father’s death, although the family physi *258 cian, Dr. Moitrier, who was called in on the twenty-fourth of April, failed to discover them. On the twenty-first of April Seifter had a very violent chill, and Dr. Glauvit, who lived near by, was called in and continued in charge of the patient until the family physician was called on April twenty-fourth. Dr, Glauvit was called to the witness stand, but there seémed to be no curiosity to find out what he knew about the patient, as no questions of that nature were put to him. When Dr. Moitrier took charge of the patient, he diagnosed the case as acute croupous pneumonia. He continued to believe in that diagnosis and to treat his patient accordingly down to the day of his death on May 2nd, after which he prepared a death certificate in which he stated it to be his opinion that the cause of death was acute croupous pneumonia, a disease which no one pretends could have resulted from a fracture of the leg. Later, some one evolved the theory that if the pneumonia should be diagnosed as septic pneumonia, an opportunity would be presented for the expression of medical opinion to the effect that the death might have been an indirect result of the fracture. And it happened that the family physician (on more mature reflection, presumably) changed his mind as to the cause of the death of his patient, and testified upon the trial that in his judgment it was septic pneumonia, and another physician who saw the patient agreed with him. Physicians were called by the defendant, all of whom were of a contrary opinion, but it must be conceded that there was some evidence to show that Seifter died of septic pneumonia, and the jury having seen fit to believe that testimony, we shall in the further discussion of the case assume the fact to be established that the cause of death was septic pneumonia. We 'are soon to inquire whether there is any evidence to support a finding of the jury that the fracture was the proximate cause of the septic pneumonia which resulted in death. But before its discussion it will be well to have in mind the rule upon that subject as it was last expressed by this court in Laidlaw v. Sage (158 N. Y. 73, 99): “ A proximate cause is *259 one in which is involved the idea of necessity. It is one the connection between which and the effect is plain and intelligible y it is one which can be used as a term by which a proposition can be demonstrated, that is, one which can be reasoned from conclusively. A remote cause is one which is inconclusive in reasoning, because from it no certain conclusion can be legitimately drawn. In other words, a remote cause is a cause the connection between which and the effect is uncertain, vague or indeterminate. * * * The proximate cause being given, the effect must follow. But although the existence of the remote cause is necessary for the existence of the effect (for unless there has been a remote cause there can be no effect), still the existence of the remote cause does not necessarily imply the existence of the effect. The remote cause being given, the effect may or may not follow.” Applying this rule, it will readily appear that the record contains no evidence whatever establishing that the fracture was the proximate cause of the septic pneumonia. . When I say no evidence, I do not mean by that expression that none of the steps have such support in evidence that if the other steps were established there would be no evidence for the jury upon the general question, but instead that some of the links in the chain leading from the fracture to the disease which caused the death are without any evidence whatever in their support, and hence applying for the sake of clearness an oft-used figure of speech, as the chain is not stronger than its weakest link, it follows that there was no evidence for the jury upon the general question. The plaintiff’s theory is that there was a septic condition at the point of fracture, about the 21st of February, something more than two months after the injury, whiph was carried to the thigh where its further progress was obstructed with the result of inflammation at that point manifesting itself in swellings or lumps to which liniment was applied by the physician and in a week or more the inflammation and consequently the lumps disappeared, but reappeared in the groin a few days later, where they remained until a few days before Seifter's *260 death, when they disappeared, and as they did not break externally, it is presumed that they did internally, thereby discharging into the venous circulation, with the result that a piece of septic material was broken off and taken to the heart, and from thence to the lung where it lodged and caused the pneumonia of which Seifter died. It does not need the aid of medical experts to support the proposition that it was necessary for the plaintiff to offer evidence tending to establish infection at the point of fracture as the first link in the chain, but if it did, then it is furnished by the testimony of all the experts. Dr. Jeffrey, plaintiff’s expert, said if there was no evidence of any infection at the point of fracture and no inflammation and no pus at that point, then it is impossible •to attribute the inflammation either in this part of the thigh, in the middle thigh, or in the groin, to the fracture. Of the physicians called only one ever made any examination of the fracture after the plaster cast was removed. Dr. Schall, who treated Seifter at the hospital, after the first two weeks of his stay, and who subsequently removed the plaster cast, was asked this question: “ At the time that you examined the fracture after taking off the plaster bandage was there any evidence there of degeneration or of a septic condition ? A. There was not; most decidedly not.” And further the witness testified : “ I took off the plaster cast and examined the fracture. The fragments were approximated and united by the usual formation of callus; there was some swelling of the extremity, which is usual after the application of a dressing of that nature on account of the pressure on the circulation. With a man weighing from 250 or 260 pounds that would be quite apt to be the case. It is always so after all the cases in my experience. Q. In your opinion, Doctor, was there a complete and perfect union at the time of your examination of the leg ? A. There was in my opinion,-absolutely. This was a simple fracture; meaning by that, one in which the bone did not protrude through the skin at all, or communicate with the external air. There was ho breaking of the outer skin in any way. I examined it *261 carefully. There was not at that time any symptom of infection at or near the point of union, absolutely none. The union takes place by the callus that is thrown out, forming a sort of natural splint. Eventually it becomes bony; it contains the bone cells which form the bones, which come later. Q. Is there any possibility of that material degenerating and becoming septic? A. There is no case on record, to my knowledge.” No physician questioned Dr. Schall’s testimony as to the nature of the injury or its condition when about the middle of February he removed the plaster cast. Only three other physicians were in a position to speak upon the subject at all. Of one of them no questions were asked, and the other two did not challenge or attempt to challenge Dr. Schall’s statement as to the condition of the injury at the time "of the removal of the cast. Dr. Love, the ambulance surgeon, seems to have been called in about the 21st of February on account of the lumps which had developed upon -Seifter’s thigh, but these lumps did not suggest to his mind at the time that they were occasioned by any possible inflammation at the point of fracture, for he did not even look at the fracture. To the question, when you examined Mr. Seifter on February 21st, did you examine the fracture, Dr. Love responded: “ I don’t recollect doing so; I don’t think I did. I don’t think the splint covered it. I did not examine it at that time to see whether it had entirely united or not.” Dr. Moitrier, the regular family physician, and Dr. Grlauvitwhd were called in after Seifter had been seized with pneumonia, saw nothing indicating inflammation at the points of union, for they omitted to give any testimony at all upon the subject. No other physicians examined Seifter while living, and if his family had an examination made after his death the fact is not disclosed. Instead of meeting the burden of proof resting upon the ' plaintiff if he would establish a diseased condition at the fracture prior to the appearance of the swelling on the thigh, he did not even attempt it, while the defendant on the other *262 hand proved the negative by all the competent testimony apparently in existence. It is true that the plaintiff offered what his counsel thinks is “ some evidence ” tending in that -direction. It may have tended in that direction, but it did not go far enough to reach the vital point made by Dr. Schall, that there was no disease at the point of fracture two months after the accident nor ever had been. Members of the family testified that his leg was swollen and red at the seat of the injury, but Dr. Schall said in effect: True, but no more so than is ordinarily the case where the fractured limb is for so long a time in a plaster cast — which statement he followed by stating the result of an actual examination made in order that he might discover whether the bone had united and was in good condition. The members of the family did not pretend that they made or were competent to make that test, and so they fail to offer any evidence upon the crucial point. The plaintiff’s superstructure of speculation and fact combined is, therefore, without any foundation to rest upon, and it must fall, thereby rendering it unnecessary to inquire whether it could stand if it had a respectable foundation, but it may be noted in passing that it is open to attack and that this is so may be suggested, at least, by calling attention to the evidence upon which the claim is rested, that the swelling in the groin broke internally. “ A piece of septic material was broken off and carried through the veins into the heart, and from thence into the lung where it lodged, and gave rise to lung inflammation and pneumonia symptoms,” is the claim made by plaintiff’s counsel, and it is founded on the testimony of two members of the family that in March three lumps appeared in the groin about the size of two fingers doubled up which remained until after Seifter’s death. • Without the presence of this swelling, the theory of plaintiff’s experts, based upon its internal rupture and the passing of septic material which it contained into the veins, thence to the heart and so on to the lungs, would have no foundation whatever. But if the testimony of the only witnesses who saw the lumps and who swore to their continuing presence until Seifter’s *263 death is to be fully credited, the plaintiff is equally unfortunate, for then there was no internal rupture with the claimed result that the poisonous material passed into the circulation. No physician saw these swellings in the groin, and Dr. Moi-trier says he examined him on the 24th of April and continued to attend him down to the date of his death on May 2nd, and he testifies positively that there were no swellings in the groin at that time. So the triers of fact were asked to credit the witnesses who saw the lumps (which the physicians did not discover) down to the 21st of April, when Dr. Glauvit was called, and not to believe their testimony from that time down to the date of his death. For that period of time they were necessarily requested to believe Dr. Moitrier, and, therefore, to conclude that there were lumps which disappeared before the doctor saw them, which, if true, would tend to support the opinion expressed by an expert that the septic material in the groin might have passed into the circulation. Our attention is called to the testimony of an expert (who never saw Seifter), from which selections are made, which, it is argued, convey the opinion of the expert that there was infections material at the fracture, but I do not so read his testimony. He was plied with hypothetical questions assuming infection at the point of fracture, and all of his testimony tending to show how it was possible that the death might have resulted from the diseased condition of the fracture was based in the first instance upon the assumption that there was a septic condition there; an assumption not founded upon a personal investigation or upon evidence, but upon questions put by counsel for the plaintiff, which assumed to correctly state the facts established upon the trial. Now, as we have seen, those questions did not correctly state the facts, in that, among other things, they embraced a statement that there was infection at the point of fracture prior to and at the time of the appearance of the swelling upon the thigh. But I shall not pursue this subject further, for it has already been made to appear that the most favorable view of the testimony contained in this record does not permit a finding that *264 the injury to Seifter was the proximate" cause of his death.. Death from pneumonia is not ordinarily the necessary and. natural result of an injury to the fibula bone, and when, as in this case, it is sought to establish almost entirely by expert, evidence that such result actually followed, the connection between cause and effect should be made so clear that the conclusion can be said to be the reasonable result of the proof. In this case the proof falls far below that standard, and the-verdict of the jury is left to rest too largely upon conjecture- and speculation, and so, I think, is not supported by evidence,, and, hence, the verdict should not be allowed to stand. The. judgment should be reversed and a new trial granted,, with .costs to abide the event.