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Hull v. Plume

Decided: April 20, 1944.


On appeal from the Supreme Court.

For the plaintiff-appellant, Milford Salny.

For the defendants-respondents, William P. Braun.


The opinion of the court was delivered by

THOMPSON, J. Roy S. Hull, Jr., was seriously injured as a result of an explosion at the plant of the Hercules Powder Company, near Dover, New Jersey, on September 12th, 1940. He was taken to the hospital and died there approximately six months later. He had been attended and treated principally by the defendants, Drs. Plume and Costello, for his injuries, though having also received the attention of other physicians and internes during the period of his stay at the hospital, and the benefit of examination and report by Dr. H. E. Reading, called in on the case at the request of his

family. The connection of the defendant Plume with the case is said to have been limited to the taking of two X-rays in his capacity as a roentgenologist in the hospital, and it is claimed that he did not personally prescribe any treatment, although he saw the patient frequently and consulted with the various doctors and attendants. The defendant Costello appears to have been chiefly in charge of the case throughout.

The claim is that the death of the patient Hull, Jr., notwithstanding the serious nature of the injuries he received in the explosion accident in which over fifty other persons were killed, was actually caused as the result of the negligent treatment of his case by the defendants. The father of the decedent, Roy S. Hull, Sr., as administrator ad prosequendum, instituted an action in the Supreme Court in Sussex County to recover damages for the wrongful death of Roy S. Hull, Jr. At the conclusion of the plaintiff's case, the defendants moved for a nonsuit, which was granted by the trial court, and this appeal is from the judgment entered accordingly. The record shows that the court, in dismissing the jury after it had been recalled to the court room subsequent to the argument of the motion, stated that the nonsuit had been granted, "because there was no professional or expert testimony upon the question of negligence."

The plaintiff's appeal is based upon the argument that at the conclusion of the plaintiff's case there was sufficient evidence to warrant the submission of the issues to the jury; that it is not essential, in proving negligence by a physician, that there be testimony by a physician or surgeon that the attending physician or surgeon was negligent or administered improper treatment; that if such expert testimony be essential, it was present in the instant case by virtue of the testimony of the defendant, Dr. Costello, himself, as well as by virtue of certain of the testimony of Dr. Reading; and that if the testimony of Dr. Costello was insufficient, it was so because the court sustained objections to the questions addressed to the doctor for the purpose of eliciting such testimony.

Appellant's decedent was one of many injured in the terrific explosion that took place at the plant of the Powder

Company. The resources of a considerable territory in the area of the plant were called upon to assist in the rendering of aid to the injured. The defendants, Drs. Plume and Costello, were on the staff of the Dover Hospital to which plaintiff's decedent was taken for treatment. The complaint describes the condition of Hull as follows: "He was unconscious for a long period of time, became paralyzed, lost the use of his legs and the ability to perform most of the normal functions of the human body. He was helpless, unable to move. In addition he suffered many other injuries to various parts of the body, all severe and extremely painful." The diagnosis at the hospital on admission was, "General lacerations, particularly a severe laceration of the back in the lumbar area, probable injury to spinal cord and nerve system, as evidenced by diminished sensation and paralysis in both legs, shock, and poor general condition, with a very poor prognosis for continuance of life beyond six months." Subsequent diagnosis as a result of X-ray was, "fractures of the vertebrae with a displacement of one of the lumbar vertebra, and it showed a foreign body in the boy's back." The testimony shows that the patient suffered from many and varied types of injury, externally and internally, the presence of foreign substances within his body, the matter of the removal of one of which was one of the stressed items advanced by the plaintiff in this case, and the condition of the patient was such that, according to the record, the original prognosis indicated poor prospects for life beyond six months; the consulting physician of the family, Dr. Reading, found on January 17th, 1941, that, "A prognosis in this case under any circumstances, as far as life is concerned, appears poor," and the patient did in fact die on March 14th, 1941, within two days of the six months originally predicted as the probable maximum of life.

The crucial question in this case is whether the defendants, as attending and treating physicians, were negligent in the treatment administered, and, if negligent at all, whether such negligence ...

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