Lewis v. Johnson

LANGDON, J.

This is an appeal by plaintiff from a judgment based on a directed verdict.

Plaintiff was injured in an automobile accident, and was sent to Seaside Hospital in Long Beach for treatment of fractures in his left leg. The treatment was unsuccessful and the leg was later amputated. Thereafter plaintiff brought the present action for malpractice, against Dr. Carl G. Johnson, Dr. Carl H. Gans, the Seaside Hospital, and Miriam Furlong, superintendent of nurses of the hospital. The complaint alleged negligence of the doctors in using too tight a east, and negligence of the other defendants in failing promptly to advise the doctors of discovery of this fact.

The case 'went to trial before a jury on August 13, 1937. While it was in progress, negotiations were commenced between Mr. Quail, claim superintendent for the insurance company representing the hospital and nurse, and Mr. Fritz, one of counsel for plaintiff, the object being to obtain a covenant not to sue said defendants. An agreement was reached to pay $6,000 in consideration of the giving of such a covenant, and on August 23d the money was paid and the instrument delivered. Mr. Fritz then informed Mr. Hunter, counsel for these defendants, that he would give him a dismis

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sal as to them, and accordingly handed him a document entitled “Dismissal”, in the usual form of a request to the clerk of the court to enter the dismissal against the said defendants. The attorneys then went to the courtroom, where counsel for the defendant doctors obtained permission to amend their answer to allege that plaintiff had settled with two joint tort-feasors and had thereby released them all. A discussion took place in which Mr. Fritz pointed out that there was no release but only a covenant not to sue. The court called for the document requesting dismissal, and ordered it filed. Thereupon the trial proceeded. On August 27th the motion of defendant doctors for a directed verdict was granted. Judgment for defendants followed, and this appeal was taken.

A review of the record discloses competent evidence sufficient to go to the jury. The fracture in plaintiff’s leg was reduced and the cast applied about 10 A. M., Sunday, August 9th. Dr. Johnson visited plaintiff at 11:30 that same morning. He did not see him again, nor communicate in any way, until 8 P. M. When Dr. Johnson left plaintiff on Sunday morning, he gave no instructions to the nurses as to what they should do in an emergency resulting from a tight cast. Meanwhile, in the afternoon, the patient felt such severe pain that narcotics were administered, and his toes appeared swollen and dark blue in color. Dr. Johnson partially split the east Sunday night, but plaintiff continued to suffer great pain, and the swelling and discoloration continued. The condition of plaintiff’s leg became increasingly worse, and required continual treatment with frequent hospitalization, until on June 10th amputation was made.