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Jones v. Stess

Decided: July 27, 1970.


Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.


Plaintiff Lucille B. Jones appeals from a judgment in favor of defendant Leo Stess following the granting of defendant's motion for involuntary dismissal at the close of her case.

On September 12, 1966 plaintiff visited the office of defendant, a licensed chiropodist (podiatrist), for the purpose of having her "feet, her nails and her calluses taken care

of." Defendant had been treating her for a number of years and knew that she suffered from diabetes. In a portion of his deposition which was offered in evidence he stated that he had specifically noted that fact on his office record card, by underlining the word "diabetic" in red ink. He gave as the reason for this the fact that "diabetic patients are special patients to be considered with care" -- they "have to be watched more closely," "as a precaution against infection or injury." He added, "we don't work too close with diabetic patients" and agreed that "you don't want to unintentionally cut a diabetic."

On the day in question, after soaking plaintiff's feet in a whirlpool bath, defendant began clipping her toe nails. When he reached the great toe of her left foot he, in some manner, clipped the inside of her toe. When she jerked her foot back because it hurt, he allegedly said, "I'm sorry, Mrs. Jones, but those kids have upset me. They have been in here all afternoon * * *," (she had previously heard two boys talking and "kidding around" with the doctor). She felt pain in the toe but after he had applied a red substance to it she was permitted to return home.

By the next day the pain was worse. Two days later continued pain in the toe caused her to consult Dr. Wales, her personal physician. When she did not respond to his treatment he referred her to Dr. Slobodien, a surgeon, who observed an area of infection on the inside of the left big toe. Subsequent x-rays indicated that the infection had penetrated into the bone below. Dr. Slobodien ordered plaintiff admitted to Perth Amboy General Hospital where, on October 31, 1966, her condition was diagnosed as osteomyelitis of the toe, and an operation was performed which consisted of removing the nail and curetting the osteomyelitic area of the distal phalanx. When the infection persisted plaintiff was readmitted to the hospital on December 26 at which time, because diabetic gangrene had set in, her entire toe was amputated. When the condition continued to spread she underwent three more operations, the last, an

amputation, extending to her mid thigh. With the final amputation the infection was contained and healing took place. Eventually, an artificial leg was fitted.

There was medical testimony from Dr. Wales as to the existence of causal relationship between the cutting of the toe by defendant and the resultant loss of plaintiff's left leg. Dr. Slobodien testified that "diabetics have problems with regard to healing, particularly with infection." As to the reasons for this he stated, "Basically, one of them is that the blood vessels are older than the individual is, and the second is that because of the fluctuating sugar levels in the body, infection itself tends to recede more slowly than it would in individuals without diabetes." He added that, "[D]iabetes affects blood vessels in the body, primarily arteries of the middle size. Because these vessels are involved, the blood flow through these vessels is diminished," and "[I]n order to have proper healing, [w]hat you want is an adequate blood flow to the area as much as possible, and in diabetics this flow is decreased." He opined that the diminished blood flow would affect the lower extremities most severely.

Dr. Wales was in substantial accord. With reference to the extremities he testified, "Great care must be used in taking care of these areas because any type of trauma can precipitate an infection in the toe."

At the close of plaintiff's case the court granted defendant's motion for an involuntary dismissal on the ground that plaintiff was required, but had failed, to adduce expert testimony as to the standard of care required of defendant, and whether there had been a deviation from that standard.

The sole question presented by the present appeal is whether the foregoing testimony was sufficient to make out a prima facie case, and thus ...

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