Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d. Francis, J.c.c. (temporarily assigned) (dissenting).
Defendant Paul C. Wiesenfeld appeals from the final judgment entered against him in the amount of $100,000 in favor of plaintiff Laura H. Swanson, and $25,000 in favor of plaintiff Victor H. Swanson, subsequently reduced by the court to $70,000 and $20,000 respectively.
The action was one grounded in tort wherein Mrs. Swanson sought recovery of damages for injuries allegedly attributable to the malpractice or negligence of the defendants Paul C. Wiesenfeld and Sol Gurshman, who treated her for her injuries. Her husband sued per quod. The case was tried before the Superior Court, Law Division, Middlesex County, and a jury. A verdict of no cause of action was returned in favor of the defendant, Dr. Sol Gurshman.
On Sunday morning, May 7, 1950, Mrs. Laura H. Swanson, then 55 years of age, stepped out the back door of her home on to a porch to empty some trash when a gust of wind blew the storm door against her, knocking her off the porch backwards to the ground, causing a comminuted fracture of her right leg in the area of the knee. The Metuchen Safety Squad ambulance was summoned, and after applying first aid, removed her to the Perth Amboy Hospital. Dr. Sol Gurshman, the family physician, was called by Mr. Swanson and he arranged for Mrs. Swanson to be treated by Dr. Wiesenfeld, an orthopedic surgeon.
The admitting diagnosis and examination report and X-rays showed fractures of the tibial plateau of the knee and also the fibular head. Multiple fragments of the tibia were observed. Under anesthesia, a closed reduction (cast) was applied from mid-thigh to the toes. The post-operative condition of the patient appeared good and X-ray reports of the post-reduction of the leg, ankle and knee showed the femur to be normal, and a comminuted fracture of the lateral 1 1/2 inch of the tibia, with moderate spreading of the fragments and a fracture through the neck of the fibula without displacement.
Mrs. Swanson's leg was elevated and an ice cap applied to her knee. Later in the afternoon of the same day Dr. Wiesenfeld visited the patient at the hospital and asked how she felt. She complained of pain in her leg. The doctor told her to work her toes as much as she could. Later in the day morphine and a sedative were administered to assist Mrs. Swanson in rest.
The next day, Monday, the patient received some morphine to deaden the effect of the pain in her knee. It was noted that she slept long intervals and that circulation appeared good in the toes, although she could not work them.
On at least two occasions, on the theory that Mrs. Swanson was neurotic, a placebo (sterile) injection was administered and she was noted to be sleeping thereafter.
On Tuesday, May 9, the patient complained of pain and that she could not move her toes. Again, on Wednesday, May 10, she reported inability to move her toes. It was noted that her toes had become bluish in color and were somewhat cold. Dr. Wiesenfeld bivalved the cast and the circulation seemed to improve. Mrs. Swanson rested comfortably for the remainder of the day.
On Thursday, May 11, Dr. Wiesenfeld removed the cast and noted that there was no sensation or motion in the patient's toes and that they were bluish in color. He ordered a spinal anesthesia, but the right foot failed to "warm up." He then ordered a lamp treatment to the foot. Dr. Gurshman came in and ordered the lamp turned off and called Dr. Isabelle M. London, a peripheral vascular specialist, for a consultation with him and Dr. Wiesenfeld. Dr. London ordered the patient's leg lowered and head elevated and suggested the use of an oscillating bed. The patient was transferred in the afternoon of the same day to St. Peter's Hospital in New Brunswick, where an oscillating bed was available and to have Dr. Norman Rosenberg, associate with Dr. London.
The final diagnosis at Perth Amboy Hospital had been a fracture of the right tibial plateau, a fracture of the neck of the right fibular and thrombosis of the popliteal artery.
Three operations were performed upon Mrs. Swanson by Dr. Rosenberg: on May 11, longitudinal incisions into the lower leg to reduce the pressure; on May 14, a guillotine amputation below the knee; and on June 2, another amputation above the knee, at approximately mid-thigh.
The amputations were made necessary by a gangrenous condition which had developed by reason of interference with circulation in the patient's leg. The cause of the interference with circulation and the question of whether the attending physicians, named as defendants in the matter, should have foreseen this difficulty or ought reasonably to have anticipated it and guarded against it, is the crux of the issue in this case. The plaintiffs contend that the blood supply to the leg was cut off by the normal swelling of the leg beneath the cast, in the vicinity of the fracture, and that the cast should have been bivalved prior to May 10, 1950, and that defendant's failure to do so was the proximate cause of the gangrene. The defendant contends that failure to bivalve the cast was not the proximate cause of the gangrene; that the necessity for the amputation was the obliteration of the anterior tibial artery, at the site of the fracture caused by the fracture and the consequent cutting off of the blood supply.
The defendant contends that the trial court erred: (1) in permitting Dr. Tuby to answer the hypothetical question propounded to him; (2) in denying his motion for involuntary dismissal at the close of the plaintiffs' case and at the conclusion of all of the evidence in the case; (3) that the verdicts were so palpably against the weight of the evidence on proximate cause as to demonstrate that they were the products of sympathy, passion, prejudice and bias; (4) in denying a new trial on certain alleged misconduct of jurors; and (5) in reducing the verdict rather than setting it aside in its entirety.
At the close of the defendant's case counsel for defendant, Wiesenfeld, successfully moved to strike three subparagraphs of the complaint, that were not supported by the proofs.
We wish to direct our attention first to the question of the sufficiency of the weight of the evidence to support the verdict returned by the jury. Such a consideration demands a more detailed review of the evidence proffered by the parties.
Initially, we direct our attention to the testimony of Dr. Tuby, plaintiffs' expert. It will be noted that Dr. Tuby did not attend nor examine Mrs. Swanson, but testified for plaintiffs after a review of the hospital records. From a hypothetical question propounded to Dr. Tuby, he stated that "failure to loosen, bivalve or remove the plaster cast on the patient's right lower extremity, prior to May 10th, 1950, was a departure from and at variance with the usual, good, ordinary, sound and accepted medical practice," and that such failure "would be a competent and producing cause of circulatory interference, resulting in gangrene."
Thereafter Dr. Tuby explained that his theory was that the circulatory interference was caused by the normal swelling in the area of the knee of the right leg and the pressure produced thereby was confined within the closed cast, and defendant having failed to bivalve it, the flow of blood was cut off, resulting in a gangrenous condition necessitating the amputation. On cross-examination of Dr. Tuby as to the source of the factual element of swelling and pressure he relied upon for his conclusion, he admitted that it was not given to him as a factual hypothesis and that the records which he had examined did not contain evidence of it. The plaintiffs did not testify to swelling of the limb and Mrs. Swanson reported no pressure. Dr. Tuby assumed there was swelling because Mrs. Swanson complained of pain and that pain normally is an indication of swelling in fractures.
Our courts have ruled that:
"The opinions and conclusions of experts must be based either upon facts within their own knowledge which they detail to the jury or upon hypothetical questions embracing facts supported by the evidence and relating to the particular matters upon which the expert opinion is sought, which facts, for the purpose of the opinion, are assumed to be true." Beam v. Kent , 3 N.J. 210, 215 (1949).
It has generally been conceded that the opinion of an expert must be grounded in established facts or hypothesis assumed by the question posed to him, or his conclusions are worthless and inadmissible.
As stated in 2 Wigmore on Evidence (3 rd ed.), sec. 672. pp. 792-793:
"1. Testimony in the shape of inferences or conclusions rests always on certain premises of fact. * * * 2. These premises, a consideration of which is essential to the formation of the conclusion or opinion, must somehow be supplied to the jury by testimony. * * * 3. If * * * a witness is put forward to testify to the conclusion, the premises considered by him must be expressly stated, as the basis of his conclusion; otherwise, since his conclusion rests for its validity upon a consideration of the premises, the tribunal, if those premises are not made to accompany the conclusion, might be accepting a conclusion for which the witness had considered premises found by the tribunal not to be true. 4. Hence, the premises must be stated hypothetically in connection with the conclusion; * * *."
In the matter sub judice , neither the matter of pressure and swelling, nor the extent thereof assumed by Dr. Tuby in his conclusions concerning proximate cause, were supplied by evidence of the case or the hypothesis of the question posed.
Plaintiffs introduced no evidence attacking the type, manner of application or construction of the cast applied to Mrs. Swanson's leg. Dr. Tuby stated that he had not examined it, did not know how it was padded and did not know how restricting it was on the patient's leg.
Neither the patient nor her husband complained of swelling or pressure on her leg. The defendants proffered testimony that they did not observe any swelling of the limb or other indications of pressure. Furthermore, on removal of the cast it was observed that the skin of the member was not affected with blebs, bullae or ulcerations or other marks on the leg indicating pressure within the cast.
Mrs. Swanson was checked frequently and regularly by Doctors Gurshman and Wiesenfeld, and they testified they
observed no symptoms of circulation interference up to the time the cast was bivalved on May 10. The following morning, the patient's toes were cyanotic and indicated circulation interference. Various methods were used to correct the condition. Dr. Isabelle M. London, a peripheral vascular specialist, was called into the case. Dr. Gurshman was of the opinion that the difficulty was ...