Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
This is a malpractice case, tried without a jury. Plaintiffs Clara Ann Clark and Norman Clark (husband and wife) appeal from a judgment for defendant entered at the close of the trial by the Superior Court, Law Division, Morris County.
Mrs. Clark was injured in an automobile accident on Saturday, August 10, 1957 and was taken by ambulance to the St. Clare's Hospital in Denville, New Jersey, suffering from injuries including a comminuted fracture of the left femoral shaft. She was placed in temporary traction and, on the following Tuesday, defendant Dr. Heins Wichman (an orthopedic surgeon), member of the hospital staff and the attending physician, performed an operation described as an open reduction with insertion of a Kuntscher intermedullary nail and the application of two Parham bands. The postoperative X-rays indicated an anatomical alignment.
While then at the hospital, Mrs. Clark was not permitted out of bed. She developed traumatic psychosis, suffered hallucinations "in the religious field," and became "irrational and very violent." On August 27 she was committed, upon the certification of two other doctors and by an order of court, to the Greystone Park State Hospital. The permit for treatment there was signed by her husband. Confinement at this institution continued until September 17, during which period she was not under the care of Dr. Wichman. Upon her release, she returned to St. Clare's Hospital and resumed treatment under Dr. Wichman, who obtained current X-rays of the injured extremity. In comparison with the previous films, these disclosed that there was some lateral angulation
at the fracture site. The doctor was "perturbed" at this discovery and testified that upon interrogating the patient, he was advised that "the other hospital" made her get up and walk, and the doctor (at Greystone) told her to "stomp" on the leg. Dr. Wichman then specifically told her not to bear any weight on the fractured leg and, according to her testimony, "I was given first a walker and then instructed in the use of crutches by the orderly." She was walking on crutches on September 27 when discharged from the St. Clare's Hospital. At regular intervals thereafter she visited the doctor at his office for X-ray examinations and treatment.
The following November Mrs. Clark was rehospitalized for ten days. The X-rays revealed a degree of shortening of the leg. Dr. Wichman expressed the opinion that the premature weight-bearing, before fibrous fixation of the fragments, resulted in a certain degree of telescoping or impaction which may have caused the "shortening." It was deemed necessary to reoperate for the purpose of abbreviating the "femoral nail" and to remove the Parham bands as the upper one had apparently become loose and was no longer discharging its function.
On January 9, 1958 X-rays were again taken and the patient was advised that she could begin partial weight-bearing -- a little weight "with the aid of crutches." She returned to Dr. Wichman in March; more X-rays were obtained and she was requested to exert "an additional amount of weight." Her next visit was May 1, when she was told to bear full weight on her leg.
At this point in the chronology of events, serious negotiations were undertaken by plaintiffs toward an amicable settlement of their then pending automobile negligence case; the trial date was June 11, 1958. The injured plaintiff was examined by Dr. Bertram Kummel, on behalf of an insurance company, who reviewed her case history and X-rays and made an independent physical examination. A copy of his findings was submitted to the attorneys handling that litigation; it concluded: "Mrs. Clark has what is
technically considered a delayed union of the femur. This will probably become a non-union and require surgery, including bone grafts." When confronted with said report on June 2, Dr. Wichman stated to plaintiffs:
"Well, I agree with what the other doctor says as far as the x-ray findings are concerned, but I have all hopes that this would go on to satisfactory union but that I thought that the opinion it would definitely go to non-union was premature, because you can't tell until you have waited and seen."
Mrs. Clark was also examined by Dr. Carl A. Maxwell, an orthopedic surgeon, on June 10, the day before her accident case was scheduled for trial. Although he detected some false motion in the lower third of the femur, such motion was not identified to exist at the fracture site. Dr. Wichman testified that he urged against effecting a settlement of the accident litigation at that time "because there may be future surgery necessary," and that "the prognosis was precarious" as the fracture had not yet healed. The case was settled in plaintiffs' favor for the sum of $28,500, which took into consideration the possibility that Mrs. Clark might have to undergo additional surgery.
In July the roentgenograms showed a continuation of callus formation; the patient was advised to "take it easy," and that "there probably would be no need for an operation." Approximately two months afterward (September 15) further X-rays disclosed that there was not as much healing as "previously had been indicated on one of the lateral films," and she was advised to stop bearing weight on the fractured limb. The possibility of further surgical procedure and bone grafting was discussed during that visitation. January 12, 1959 was her last visit to Dr. Wichman. The X-ray taken at that time revealed "abundant callus, which is bone formation which contributes to the healing of the fracture, and it shows actual trabeculations and bone growing." The film, said the doctor, "showed no definite evidence of a non-union, but it still did not show the fracture
completely healed." Mrs. Clark quoted the doctor as saying on that occasion, "Now, you can commence just again a small amount of weight." She was instructed to return to him in March, but she did not do so.
On April 18, 1959 the injured plaintiff consulted Dr. Harold T. Hansen, who specialized in orthopedic surgery. His X-rays indicated an abundance of callus about the fracture site, but disclosed an apparent fractural line. He rendered a diagnosis of nonunion of the fracture and recommended bone-graft surgery, which was successfully performed on May 6, 1959 at the New Jersey Orthopedic Hospital. Within five ...