Conservative Measures: Three Early Colorado Medical Malpractice Cases
| Publication year | 2009 |
| Pages | 91 |
| Citation | Vol. 38 No. 9 Pg. 91 |
2009, September, Pg. 91. Conservative Measures: Three Early Colorado Medical Malpractice Cases
September 2009
Vol. 38, No. 9 [Page 91]
About the Author
Frank Gibbard is a staff attorney with the Tenth Circuit Court of Appeals and Secretary of the Tenth Circuit Historical Society-(303) 844-5306, frank_gibbard@ca10.uscourts.gov. The views expressed are those of the author and not of the Tenth Circuit or its judges. The author is grateful for the research assistance of Dan Cordova and Lynn Christian of the Colorado Supreme Court Law Library. Readers may contact Frank Gibbard with topic suggestions or to volunteer to write Historical Perspective articles.
In recent years, concerns have been raised about the practice of "defensive medicine."(fn1) Fear of litigation, it is claimed, has caused doctors to conduct unnecessary tests and procedures, which has helped to drive up the cost of health care.
Three early medical malpractice cases from the Colorado courts illustrate how society may once have faced an opposite problem. In the cases discussed below, a doctor called on to provide treatment downplayed the seriousness of the patient's injury and/or prescribed conservative measures that were inadequate to treat the injury. This led to further injury and, ultimately, to malpractice litigation. These cases also serve as a time capsule, revealing something of the state of medicine in Colorado's early years.
The Case of McGraw v. Kerr
The patient and plaintiff in the first case, Clayton Price Kerr, was a 5-year-old boy.(fn2) On June 23, 1907, he fell off a horse and fractured his right arm.(fn3) An unnamed physician was called to the scene. The doctor determined that Clayton had only dislocated his shoulder. He "pulled [the boy's arm] back into place," bandaged it, bound it to his body, and advised the parents to go to Denver for treatment.(fn4)
Dr. McGraw's Treatment
The next day, Dr. Henry R. McGraw examined Clayton in Denver. The boy's father informed Dr. McGraw that the first doctor had diagnosed the boy with a dislocated shoulder. Dr. McGraw inspected the arm visually, as well as by touching and manipulation. He stated it would be best to let Clayton get over the shock of the injury before taking any other measures. He recommended an X-ray, but stated that because X-rays were expensive, he would order only one if he later determined it to be necessary.(fn5)
Dr. McGraw rebandaged Clayton's arm and placed it in a sling. He re-examined the arm daily and applied electricity to the arm on several occasions.(fn6)
On further testing, on July 8, Dr. McGraw discovered that the boy had broken his arm. The doctor immediately ordered an X-ray (known in those days as a "skiagraph"), which verified that not only did the boy have a broken arm, but "the ends of the fractured bone were not in exact apposition; only about three-fourths of the ends butt[ed] against each other."(fn7) After they examined the X-rays, the X-ray specialist and Dr. McGraw informed Clayton's father that they had detected crepitus, a grating or rubbing together of the end of the bone, which proved that it had not healed. They recommended that Clayton be operated on to reduce the fracture of his humerus and, as a further step, that the bone be bound in place with a length of silver wire, if necessary.
Arrangements were made to transport the boy to a hospital, where Dr. McGraw could operate on him. However, before this could happen, the father fired Dr. McGraw.
Treatment at the County Hospital
Clayton's father took him to the county hospital, where doctors took an additional X-ray and re-examined the arm. Dr. Aubrey Williams, who treated Clayton during his time at the hospital, testified that by July 15, he had determined that the bones had actually begun to ossify. As a result, he advised against surgery. Another unnamed doctor called as a witness stated that the proper treatment would have been to place the arm in a splint or to immobilize it with a plaster cast.(fn8) However, the doctors agreed it would have been difficult for a doctor to make an initial determination as to whether the arm was dislocated or broken.
The Lawsuit
Clayton sued Dr. McGraw for malpractice. The arm had healed, but the bone was misshapen and the union was somewhat angular. By the time of trial, Clayton still had a lump on his arm where the bone had broken and fused unevenly. In bad weather, he favored the broken arm. Although the bone was actually stronger where it had knitted together, the contour of the shoulder was imperfect, and the arm hung in an unnatural position.
The jury awarded Clayton $800. Dr. McGraw appealed.
Appellate Decision
The Colorado Court of Appeals proved remarkably sympathetic to Dr. McGraw's position. First, it found that two of his proposed jury instructions had been improperly refused. One of the instructions would have informed the jury that "the fact that perfect or even good results were not obtained is not of itself any evidence that the physician was negligent."(fn9) The same instruction also would have informed the jury that:
[I]n determining the question of whether the defendant, upon the facts in evidence, was negligent or not negligent, the condition of plaintiff's arm at the time of trial or when defendant's treatment ceased was not to be considered as evidence bearing upon that question.(fn10)
The Court of Appeals concluded that this instruction should have been given, because the evidence of a bad outcome is not in itself proof of negligence.
Second, Dr. McGraw had requested an instruction that the jury, when determining whether he had been negligent, must be guided solely by the testimony of physicians. The Court of Appeals was not so much interested in which physician set the standard of care. If the experts were in disagreement, the jury could pick one of the standards advocated by one of them. The important thing was that the jury be instructed that there must be some medical testimony to set the standard.(fn11) In earlier cases, the Colorado courts had wrestled with how to establish a standard of care in the face of widely divergent opinions provided by various schools of medicine.
Finally, the Court of Appeals considered an instruction that the trial court had...
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