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Horace R. Toy v. Rickert

Decided: November 28, 1958.


Goldmann, Conford and Haneman. The opinion of the court was delivered by Haneman, J.A.D.


Plaintiff sought damages for personal injuries alleged to have resulted from defendant's negligence in administering a dose of "bicillin" (penicillin).

Plaintiff's appeal is "from the final (sic) judgment of the * * * Law Division * * * entered in favor of defendant * * * on March 24, 1958." On that date the trial court made an order denying plaintiff's motion for a new trial. The final judgment was entered February 27, 1958 on defendant's motion for dismissal with prejudice, at the conclusion of plaintiff's case. However, counsel for both parties stipulated at oral argument that the date stated in the Notice of Appeal was an inadvertent error and that this appeal should be considered as from the final judgment of February 27, 1958. We shall so consider the appeal.

Plaintiff, a resident of Mountain Lakes, Morris County, owns and operates his own business in New York City. On the evening of February 17, 1956 he alighted from the train at Mountain Lakes at "about seven o'clock and had a slight chill, a feeling that I was getting a cold." Shortly after he arrived at his home plaintiff telephoned and advised defendant, a local physician, that he thought an injection of penicillin would be a "good idea."

Defendant went to plaintiff's home at about 9 P.M. and obtained some history from him concerning his prior experience with colds. Plaintiff informed defendant that colds "usually wound up in [his] chest," and that on at least two prior occasions he had received hypodermic injections of penicillin. Plaintiff testified that these prior injections had been administered to his right buttock. Defendant then administered a dose of "bicillin" by hypodermic injection into plaintiff's right buttock. Within ten seconds thereafter plaintiff's right leg from the thigh to the foot became numb, and within one-half hour later he was seized with violent shaking. Defendant, who had remained at plaintiff's home, then drew a sketch for plaintiff "showing how the contents of the hypodermic needle can get into the area of the sciatic nerve." Plaintiff's buttock became swollen to such an extraordinary

size that he could neither sit nor lie down. Several days thereafter plaintiff was admitted to St. Clare's Hospital at Denville, where he remained for two days. He continued under defendant's care for eight weeks. Defendant prescribed and plaintiff made use of narcotics to relieve the pain, and sleeping pills which induced three hours of "unconscious" sleep each night. This treatment continued for three months, i.e. , during the period of defendant's attendance, and thereafter at the direction of a physician whom plaintiff engaged in defendant's stead. The insensitivity of the leg subsided in about two weeks but was succeeded by extreme pain in plaintiff's foot. That pain abated in about eight months, but plaintiff still has a dull ache and walks with a slight limp.

Plaintiff adduced expert medical testimony which established that the cause of the pain was a neuro-vascular demineralization (osteoporosis) of the bones in plaintiff's foot, and that the condition was a result of sciatic nerve injury. Plaintiff failed to adduce any proof concerning the standard of care and skill to be exercised by a physician in administering a hypodermic needle to the buttock, or any evidence of the manner in which defendant administered the injection.

At the end of plaintiff's case the trial court granted defendant's motion for dismissal with prejudice upon the ground that plaintiff had failed (1) to establish the requisite degree of professional skill demanded of a physician, by expert testimony of those qualified by their own knowledge and experience in the same profession, and (2) to establish by such testimony that defendant had not exercised that degree of knowledge and skill which usually pertains to other members of his profession. Plaintiff urged, in opposition to the motion, that such proof was unnecessary, since the facts elicited justified the application of the res ipsa loquitur doctrine.

During the argument of this motion plaintiff requested leave to reopen the case and permit him (1) to call defendant to testify concerning a writing he had signed as to the

"causal relationship between the injection and the injury to the sciatica (sic) nerve." (This statement read "causalgia resulting from chemical and physical irritation to [the] right sciatic nerve after an injection of 600,000 units of bicillin"), and (2) to recall a Dr. Palazzi for the purpose of having him testify to the causal link between the injection and the injury to the sciatic nerve.

Defendant, in opposing the application to reopen, pointed out that the statement did not establish the two elements essential to the case -- the standard and a deviation therefrom. The same objection was made to recalling Dr. Palazzi. During the ensuing colloquy, plaintiff made it entirely clear that his motion to reopen concerned only the issue of ...

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