Darling v. Charleston Community Memorial Hospital (50 Ill. App. 2d 253, 1964)

CROW, P. J.

This action was brought by the plaintiff Dorrence' Kenneth Darling II, a minor, by his father and next friend, Dorrence Kenneth Darling, to recover damages allegedly occasioned by the alleged negligence of the defendant, Charleston Community Memorial Hospital, an Illinois not for profit corporation, in the furnishing of hospital services to the plaintiff. Originally, there was another defendant, Dr. John R. Alexander, a medical doctor, — Count I being against the Hospital, and Count II against the Doctor. The ad damnum in each Count was $207,430. The injured plaintiff had ultimately lost one of his legs. The defendant’s motions for directed verdict at the close of the plaintiff’s evidence and of all the evidence were denied. The plaintiff’s motion for a directed verdict at the close of all the evidence was allowed as to the issue of contributory negligence and denied in all other respects. The jury rendered a verdict for the plaintiff for $150,000. Prior to trial the plaintiff had settled with the other defendant, Dr. Alexander, the plaintiff receiving $40,000 in consideration of a covenant not to sue Dr. Alexander, and he had been dismissed as a defendant. The defendant hospital’s motion for setoff in that respect, to which there was no objection, was allowed, after the verdict. The defendant filed a post-trial motion in arrest of judgment, for judgment notwithstanding the verdict, for a new trial, and for correction of the amount of the verdict and judgment. This was denied except as to the credit for the foregoing $40,000. The post-trial- motion, briefly, urged the complaint, as amended at the trial, did not state a cause of action and is not sufficient to sustain a judgment for the plaintiff; there is no competent evidence, with its intendments most favorable to the plaintiff, to make a prima facie case against the defendant; there were errors in the voir dire examination of the jury, the verdict is clearly and palpably against the manifest weight of the evidence, the amount of the verdict is excessive and indicates passion, prejudice, and sympathy, the defendant’s motions for directed verdict should have been allowed, the jury did not deliberate long enough, the court erred in permitting the plaintiff’s amendments to the complaint at the close of the plaintiff’s evidence, the ad damnum should have been reduced to $100,000, there were errors in the rulings on evidence, the issue of contributory negligence should have gone to the jury, there were errors in the instructions, and plaintiff’s counsel abused the privilege of argument; and the amount of the verdict should be corrected to $100,000, or alternatively, there should be a $40,000 credit on the verdict. The court reduced the verdict to $110,000, and entered judgment for $110,000, from which this appeal is taken by the defendant hospital. The defendant hospital had made a motion to reduce the ad damnum of Count I to $100,000, alleging it was incorporated under the General Not for Profit Corporation Act of Illinois, it is operated as a charitable and scientific organization not for profit, and the only funds available to satisfy any judgment against it, other than trust funds held for specific uses and funds held for expansion, improvements, developments and such hospital purposes as the board of directors deems necessary, are the proceeds of an insurance policy, the limits of which are $100,000. This was supported by the affidavit of the hospital administrator, a copy of the liability policy, and a copy of the articles of Incorporation. That motion, uncontroverted, was denied. The post-trial motion, inter alia, had asked that. the verdict and judgment be reduced to $100,000 for the same reasons, which motion, as indicated, was denied in that regard. The defendant’s notice of appeal prays that we reverse the judgment and enter judgment for it, notwithstanding the verdict, or arrest the judgment, or allow a new trial, or reduce the judgment to $100,000.

The trial required approximately two weeks. The evidence was extensive, and the record, abstracts, and briefs here are lengthy.

On Saturday, November 5, 1960, the plaintiff, Dorrence Kenneth Darling II, was a student at Eastern Illinois University in Charleston. He was a member of the football team, and on that afternoon he was playing defensive left halfback during a game. A member of the opposing team threw a block at him, and he sustained a broken right leg. He was carried from the field on a stretcher to the field house and received emergency care .from Dr. William Heath, a doctor associated with the university. He was then taken to the defendant Charleston Community Memorial Hospital, in Charleston.

On November 5, 1960 the Charleston Hospital had a forty-six bed capacity. It was a member of the American Hospital Association and was accredited by the Joint Commission on Accreditation. It was licensed by the State of Illinois. It had been open since September, 1957. The following hospital personnel were available in the medical-surgical area during the shifts designated:

1. 7:00 a.m. to 3:00 p.m. shift:

Two registered nurses — one was a supervisor and the other a medicine nurse — three licensed practical nurses, one graduate practical nurse, a female aid and a male aid.

2. 3:00 p.m. to 11:00 p.m. shift:

A hospital supervisor, two registered nurses, a medicine nurse, three licensed practical nurses and two male aids.

3. 11:00 p.m. to 7:00 a.m. shift:

One registered nurse, two licensed practical nurses, and one aid. On five nights out of the week, there was one additional registered nurse.

There was also a surgical department which had a registered nurse, a licensed practical nurse, and a female aid. The surgery and emergency room was on a call-hack basis during the shifts from 3:00 p.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m. A registered nurse and a licensed practical nurse were subject to call during those shifts. The hospital also had a laboratory which was approved by the State of Illinois Department of Health. During the 7:00 a.m. to 3:00 p.m. shift, there were two full-time technicians, certified as American Medical Technicians, and one part-time technician. During the shifts from 3:00 p.m. to 11:00 p.m. and 11:00 p.m. to 7:00 a.m., the lab personnel were on a call-back basis. Many tests could be performed and carried out in the laboratory. Also, the laboratory facilities of the Mattoon Memorial Hospital, Mattoon, and the Burnham City Hospital, Champaign, were available to the Charleston Hospital. Also available was a registered pathologist at the Burn-ham City Hospital. There was no orthopedic medical staff at the defendant hospital. There was no designated surgical staff, though at a medical staff meeting November 9, 1960, after the plaintiff’s injury and while he was in the hospital, a certain other doctor had been appointed Chairman of the Surgical Division. Dr. Alexander had been “qualified” by approval of the Board of Directors of the hospital to perform surgery. There was an active medical staff. There was a consulting medical staff. There were two orthopedic surgeons, Dr. Boss and Dr. Peterson, of Champaign, on the consulting staff. The Medical Staff had an executive committee and a medical records committee. In evidence are photographs of certain parts of certain walls of the hospital indicating a sign “Medical-Surgical-Nursing,” and also a list of the various laboratory tests available at the hospital.

The plaintiff was brought into the emergency room of the Charleston Hospital sometime between 3:00 p.m. and 4:00 p.m. Delia Carroll, a surgical scrub nurse (sterile nurse who assists doctors), had completed her shift at 3:15 p.m., but had not left the hospital. Patricia Jenkins, the director of Nurses, found Miss Carroll before she had an opportunity to leave, and asked her to stay and assist in the emergency room. Dr. John Alexander, a graduate of the University of Illinois, was called and asked to come to the hospital. Dr. Alexander had been on the medical staff since the new hospital was started, and before that he was on the old Charleston Hospital staff. On this day, he was the doctor on emergency call. He examined the leg and had an X-ray taken. He diagnosed a com-minuted (multiple) fracture of the right tibia and fibula (what he described as a “bad break”). Mary DaVan, a certified registered nurse anesthetist, was called to the emergency room. Also present in the emergency room, besides Mrs. DaYan, Doctor Alexander, and Miss Carroll, were Mrs. Bezruki, a nurse, and Steve Goodson, an orderly. Miss Carroll filled out a form entitled “Authority to Operate,” and the injured plaintiff signed it while in the emergency room. He was then anesthetized. Miss Carroll asked Doctor Alexander if he wanted any stockinette (knitted cloth, like a stocking) to use under the cast, and he said “No.” While Steve Goodson held the plaintiff’s leg, Dr. Alexander wrapped muslin around it or part of it. Pursuant to Dr. Alexander’s instructions, Miss Carroll applied traction by holding the patient’s right thigh and pulling the leg towards the body. At the same time, Dr. Alexander applied countertraction by pulling the end of the patient’s foot away from his body. When Dr. Alexander was satisfied that he had proper traction, he asked Mrs. Bezruki to take the position of Miss Carroll, and Steve Groodson to take his position and they continued to apply traction and counter-traction. Dr. Alexander then applied the cast material (“Quick setting” cast, he called it). Eight plaster rolls were applied and then X-rays were taken to determine if there was good alignment and good reduction. After these X-rays had been taken and examined, the injured plaintiff was then returned to the emergency room and two more plaster rolls were applied. The cast covered the leg from a point three or four inches from the groin to the toes. The toes were left exposed. The leg was again X-rayed and there was good alignment and good reduction. The plaintiff was taken to a hospital room and placed in bed. This was a two-bed room and in the other bed was an elderly patient who, in Dr. Alexander’s best recollection, was a “bladder case.” Two pillows were placed under the injured plaintiff’s right leg, and then Dr. Alexander ordered and placed over the cast, in order to help dry it, a heat cradle containing two fifteen watt bulbs. Pursuant to Dr. Alexander’s order, the heat cradle was removed about twenty-four hours after it had been placed over the cast. The plaintiff was in the Charleston Hospital from November 5, 1960 until November 19, 1960. In evidence are a heat cradle, sample equipment used or available in casting, a bottle of Dr. John’s cold-pain-fever pills, photographs of the emergency room, photographs of the patient’s room, and a plat of the hospital. Various X-rays were in evidence but are not reproduced in the abstracts.

During this period the Charleston Hospital kept a complete record relating to the plaintiff. Included in the hospital record was the “nurse’s record” or nurse’s notes. For the Doctor’s information, the nurses made many notations concerning their observations about the injured plaintiff’s condition. Some of the principal notations from November 5, 1960 through November 8, 1960, when the cast was split in its entirety, were as follows:

1. November 5, 1960 — 4 p.m., chymar 1 cc— Heat cradle over rt. leg, and cast — demerol 2 cc — for pain — 6 p.m. S. E. D. 1 gm. — 7 p.m. demerol 2 cc — pain in leg — toes swollen— very restless — 10 p.m. — heat lamp to leg—

2. November 6, 1960 — 12 a.m., chymar 1 cc — foot very edematous — toes warm to touch — demerol 2 cc — 2 a.m. complains of pain in frax. limb— carbital given for pain — 2:35 a.m. still complains of pain — demerol given — 5 a.m. complains of severe pain in frax. limN — demerol 2 cc given for pain — 7 a.m. chymar 1 cc— carbital — complained of pain — 3 p.m. chymar 1 cc — complains of pain in leg — toes appear very swollen — color good and warm— appears blisters on his foot — 5 p.m. carbital— 7 p.m. Dr. Alexander here, cast cut at top of foot by Dr., foot elevated on 4 pillows, heat cradle removed—

3. November 7,1960 — 12 a.m., chymar 1 cc — irrational — demerol 2 cc — complains of pain in frax. limb — 4 a.m. complains pain in injured limb, foot very edematous and dark, color better when placed on more pillows— 7:30 a.m. — carbital—8 a.m. chymar — 8:30 a.m. demerol 2 cc., cold, pain, fever tabs. — Dr. Alexander visited — complains of pain in leg — 10 a.m. large blister on foot, toes swollen, states no feeling in toes on being touched — 10:30 a.m. restless — 2 p.m. complains of severe pain in leg, toes feel cold to touch and slight cynotic —7 p.m. petromul — complaining of severe pain, toes very tight, becoming more dusky in color — Dr. Alexander here, cast cut approx. 3 inches up foot by Dr. — 9 p.m. moaning, unable to settle down — 10:30 p.m. complaining again of pain.

4. November 8, 1960 — chymar 1 cc — complains of severe pain in frax. limb — demerol 2 cc given for pain — 3 a.m. very restless — 5:30 a.m. carbital — foot and toes still swollen and cold— 6 a.m. demerol 2 cc — 8 a.m. cold, pain and fever pills — 9 a.m. Dr. Alexander visited— 10 a.m. complains of pain — 11:45 a.m. chymar 1 cc — 12 p.m. carbital — 1:30 p.m. Dr. Alexander here, cast on B. leg split on sides, retaped, and merthiolate added, also some blisters on foot opened — 5 p.m. complains of pain in leg —8 p.m. carbital — complains of pain — 10 p.m. demerol 2 cc.—

Some of the notations therein from November 9 to the 19th were:

5. November 9, 1960: “still crying of pain”— “turning head from side to side and crying, rubbing face and hands, elbows very red from twisting and turning, begging for mother”— “begging for ‘pills’ for pain in leg” — “very poor night, slept only short intervals after medicine” — “says he is in pain” — “complaining of severe pain in right leg after company left.”

November 10, 1960: “complaining of pain in limb” — “patient asking for pain medicine” 6. —“restless night” — “complaining of pain”— “complaining of pain” — “complaining of pain” — “crying of pain” — “poor afternoon” —“very restless.”

7. November 11, 1960: “patient complaining of pain and moaning” — “poor night” — “complaining of pain” — “complaining of dizziness” — “complaining of pain in leg.”

8. November 12, 1960: “complaining of pain in leg” — “complaining of pain in leg” — “complaining of pain in leg.”

9. November 13, 1960: “complaining of pain in fractured leg” — “complaining of pain.”

10. November 14, 1960: “complaining of pain in right leg” — “complaining of pain.”

11. November 15, 1960: “complaining of pain in fractured leg” — “complaining of pain in leg” —“leg, foul odor.”

12. November 16, 1960: “complaining of pain in right leg.”

13. November 17, 1960: “complaining of pain in left leg.”

14. November 18, 1960: “restless” — “complaining of pain in leg.”

15. November 19,1960: “medicine given for pain.”

Dr. Alexander read the nurse’s record. He also received telephone calls from various nursing personnel about the patient’s condition. Dr. Alexander visited the patient many times, and he had left written orders for the nurses to follow during his absence from the hospital. The nursing staff carried out the doctor’s orders. In his opinion circulation in the leg was satisfactory. He considered this bone setting a major problem, but not major surgery, and that he did not need a doctor assistant. He said he looked at the toes every day. Dr. Alexander testified that, during the plaintiff’s stay in the hospital, he did not call any specialist in for consultation, because, in his judgment, everything was all right. The patient received SRD, being penicillin and another drug, chymar, being a drug to reduce swelling, demerol, being a narcotic for pain and relaxation, Dr. Alexander’s cold-pain-fever tablets, Chloromycetin, being an antibiotic, and carbital, being a sedative and tranquilizer, at various times. On November 8th, for example, from midnight to midnight, in a 24-hour period, demerol was given five times, carbital was given three times, and cold-pain-fever tablets were given three times.

On November 6, at approximately 7:00 p.m., Dr. Alexander cut a “notch” in the cast around the toes. At about 7:00 p.m., on November 7, he cut the cast approximately three inches up the foot. On November 8, between 1:30 p.m. and 3:00 p.m., he split the entire cast by removing a lengthwise strip from it. Dr. Alexander used a Stryker saw (a vibrator type saw) when he cut the cast. A cut on each side of the leg was accidentally made by the cast cutter. An antiseptic was put on and a sterile dressing. The saw was in evidence but a photograph thereof is not reproduced in the abstracts.

The injured plaintiff’s parents, who lived in Collinsville, 'Illinois, arrived at the Charleston Hospital at about 8:30 or 9:00 p.m. on the day of his admission. His father signed the form entitled “Authorization for Medical and/or Surgical Treatment” and “Authorization for Release of Information.” They visited their son on many occasions while he was in the hospital. Their last visit was on Saturday, November 19, and the patient left that day, by ambulance for Barnes Hospital in St. Louis. Dr. Alexander put back in place, over sterile dressings, the part of the cast that had previously been cut and removed, prior to that trip.

At Barnes Hospital, lie was under the care of Dr. Fred Reynolds, the head of orthopedic surgery at Washington University School of Medicine and Barnes Hospital. He remained at Barnes Hospital until December 16, at which time he was permitted to return to his home. He was readmitted to Barnes Hospital on December 27. He remained there two days and again returned to his home. He was readmitted to Barnes Hospital on January 16 and remained until February 7. On January 23, his right leg was amputated at a point below the knee.

The complaint, as amended prior to trial, so far as now material, stated, in substance, at the time of trial and immediately before the amendments made at the close of the plaintiff’s evidence:

“4. That the defendant corporation then owed to the said plaintiff a duty to use that degree of skill in the care of such patient as would be exercised by institutions of like kind and character in that county; but that in violation of the duties which the said defendant owed to the plaintiff, the said defendant was guilty of one or more of the following negligent and careless acts or omissions which directly and proximately caused injury and loss to the plaintiff:

A. Permitted surgery to be performed in its operating rooms upon the plaintiff without the consent of said patient or, although the patient was then a minor, the consent of his parents;

B. Permitted the defendant, John D. Alexander, to perform orthopedic surgery upon the plaintiff although the said defendant was not skilled or qualified in the performance of such surgery;

C. Permitted assistance in such surgery by a layman not admitted nor licensed to practice medicine in the State of Illinois;

D. Failed to set up standards which would have required the head of the orthopedic staff of such hospital to check upon the operative procedures employed, the casting of the limb, and the post-operative care, so that as a result of such failure improper techniques were followed and utilized;

E. Permitted, or caused, a heat lamp to be used in the drying of such cast in such a manner as to cause blistering of the plaintiff’s affected extremities, thereby causing blistering, edema, and subsurface infection;

F. Permitted a cast to be applied at a time which was far too early for the patient’s welfare, when the flesh was bruised and swollen, and permitted it to be applied in such a manner as to create and cause infection, and the said defendant by its agents and servants actively assisted in such casting procedures;

Gr. Used student nurses for post-operative care of the patient who were unskilled in bone injuries and infections resulting therefrom so as not adequately to recognize the presence of infection and to provide care for the patient, or capable of preventing or checking the spread of infection;

H. Used nurses for post-operative care who were not skilled in the recognition of the presence of infection so as to direct the existence thereof promptly to the attention of the attending physician;

I. Used nurses for post-operative care possessing insufficient experience and skill to recognize the significance of the symptoms of infection displayed by the patient;

J. Failed to notify the attending physician of the vile odor of the injured area, the patient’s constant complaints of pain, and other symptoms which would have apprised the attending physician of the existence of a state of infection;

K. In the light of the symptoms clearly indicating the presence of infection, failed to require consultation with or examination by competent members of the hospital surgical staff and require steps to be taken to prevent the spread of such infection;

L. Failed to use that degree of skill required by law of hospitals in the post-operative care customary for cases of like kind and character in said community;

M. (Withdrawn during the trial.)

N. (Withdrawn during the trial.)

O. That the defendant hospital failed to conform to and to observe one or more of the following standards customarily required of and adhered to by accredited hospitals in the area involved at that time:

(1) Failed to provide a licensed, graduate professional nursing service available to all parties at all times, and particularly to the plaintiff here;

(2) Failed to provide qualified personnel adequate to supervise and conduct the supervision of medical patients and, in particular, the plaintiff here;

(3) Failed to make adequate provision for hematology and serology examinations as pertains to this plaintiff, and to conduct such other blood tests and examinations as would have disclosed the progressive deterioration of the circulation in this plaintiff’s right leg;

(4) Failed to maintain a modern and adequate medical library relating to modern orthopedic methods and casting techniques;

(5) Permitted the defendant physician to be appointed as a member of the active staff when he was not qualified professionally to perform orthopedic surgery, which, as a member of such staff, he was permitted to do;

(6) Failed, through its medical staff, to review the treatment rendered to the plaintiff and violated its duty to make certain that the attending physician in this case did not fail in the matter of calling consultants as needed, there being doubt as to the best therapeutic measures to he utilized, and it being apparent under the circumstances of this case that a qualified orthopedist should have been called into consultation;

(7) Failed to have reports of a tissue committee on orthopedic cases previously handled by the said physician, in order to determine his qualification to do surgery of that type and character, and failed to have monthly meetings to review surgical procedures following in this and in other cases;

(8) Failed to have a sufficient number of licensed, graduate, professional nurses for the bedside care of all patients at all times, and thus failed to have such nurses available for bedside care of the plaintiff at all times capable of recognizing the progressive gangrenous condition of the plaintiff’s right leg, and of bringing the same to the attention of the hospital administration and to the medical staff so that adequate consultation could have been secured and such conditions rectified.”

To these charges the defendant had filed its answer. The answer, so far as material, admitted the defendant Hospital owed to the plaintiff the duty to use that degree of skill in the care of such patient as would have been exercised by institutions of like kind and character in the County at that time, alleged that it did use such degree of care and skill, and denied the remaining allegations of paragraph 4. As to the amendments at the trial there was a motion for leave to amend certain parts of paragraph 4, made at the close of the plaintiff’s evidence. Leave was granted. This was over the objection of the defendant hospital. Nothing was changed in any of the subparagraphs A through 0 specifying the alleged breaches of duty charged against defendant, except in subparagraph “0” where the words “customarily required of and” were stricken, and the words in the opening part of paragraph 4 “as would be exercised by” were changed to “required of.” The defendant interposed an oral, and later a written, motion to dismiss the complaint, as thus amended. The court overruled this motion. The defendant then moved for a continuance, as urged by it, to enable it to prepare its defense to the complaint as thereby amended. This motion was denied. Its original answer was permitted to stand to the complaint as so amended. The defendant’s Post-trial Motion, again presented, as indicated, in the form of a Motion in Arrest of Judgment, its Motion to Dismiss the Complaint, as thus amended at the trial.

Plaintiff’s Exhibit 8 contains the Rules and Regulations promulgated by the Illinois Department of Pub-lie Health under the Hospital Licensing Act. The particularly important provisions are:

“Section A of Part II — Administration.

‘1. For each hospital there shall be a governing authority, hereinafter called the board, responsible for its organization, management, control, and operation, including appointment of the medical staff. For hospitals owned by an individual or by partners, the owner or partners shall be considered the governing authority. For all other hospitals there shall be a Board of Directors, Board of Trustees or similar governing authority. . . .

‘4. The board shall appoint a competent executive officer or administrator and vest him with authority and responsibility for carrying out its policies. There shall be a qualified individual responsible to the administrator in matters of administration who shall represent him during his absence.

‘5. The board shall employ competent well-qualified personnel in adequate numbers to carry out the functions of the hospital.

*6. The board shall be responsible for the maintenance of proper standards of professional work in the hospital and shall require that the medical staff function in conformity with reasonable standards of competency.’ ”

“Part III — The Medical Staff.

“Section A — Organization.

"2. The medical staff shall be organized in accordance with written by-laws, rules and regulations, approved by the governing board. The bylaws, rules and regulations shall specifically provide:

‘a. for eligibility for staff membership;

‘b. for such divisions and departments as' are warranted; (as a minimum, Active and Consulting divisions are required. . . .)

"d. for determination of qualifications and privileges; ...

‘f. for review and analysis of the' clinical experience of the hospital at regular intervals —the medical records of patients to be the basis for such review and analysis; . . .

‘h. for consultation between medical staff members in complicated cases’ ”;

“Part IV — Personnel.

“Section B — Nursing Personnel.

‘1. The nursing service shall be organized to provide adequate nursing care to each patient; and the authority, responsibility, and function of each category of nurse shall be clearly defined.

‘8. It is recommended that supervisors and head nurses have training and experience commensurate with the responsibility of the specific assignment.’ ”

Plaintiff’s Exhibit 15, to the admission of which there was no objection by the defendant, contains the Standards for Hospital Accreditation promulgated by the Joint Commission on Accreditation of Hospitals. These standards provided, in substance, as follows:

“I. Administration

B. Governing Body.

‘The governing body is legally and morally responsible for the conduct of the hospital. . . . For effective performance the governing body should do the following:

‘1. Adopt bylaws in accordance with legal requirements. . . .

‘5. Appoint members of tbe medical staff.

‘6. Appoint a qualified hospital administrator who is tbe official representative of tbe governing body. Tbe administrator is responsible for tbe conduct of tbe hospital, and provides liaison among tbe governing body, tbe medical staff, and other departments of tbe hospital. . . .

‘6. Medical Library.

‘a. Tbe hospital must maintain a medical reference library according to the needs of tbe hospital. . . .

“II. Medical Staff

‘A. Eesponsibilities.

‘The medical staff is responsible for tbe quality of medical care rendered to patients in tbe hospital. Maintaining high standards of medical care will depend upon tbe character of tbe staff and tbe effectiveness of its organization to carry out tbe following duties:

‘1. Selection of those recommended for staff appointments and hospital privileges.

‘2. Constant analysis and review of tbe clinical work done in tbe hospital. . . .

‘6. ... It is tbe duty of the hospital staff through its chiefs of service and Executive Committee to see that members of tbe staff do not fail in tbe matter of calling consultants as needed. A consultant must be well qualified to give an opinion in tbe field in which bis opinion is sought.

‘B. Membership. . . .

‘1. Appointment

‘b. Qualifications.

‘Members of the staff must be qualified legally, professionally and ethically for the positions to which they are appointed.

‘2. Categories

‘b. Other categories of the Staff.

‘The Consulting Staff shall be recognized specialists willing to serve in such capacity. . . ,

“III. Nursing Department.

‘Adequate care of the hospital patient requires well-organized and efficient nursing. All hospitals must meet the following requirements for accreditation:

‘A. Functions and Responsibilities.

‘Nursing care for all patients is a primary responsibility of the nursing department, which must function in close relationship with other services of the hospital, both administrative and professional. . . .

‘B. Personnel.

‘Personnel engaged for administrative or professional duties must be qualified by training and experience, and demonstrated ability for their assignments. All hospitals must provide nursing personnel to meet the following minimum requirements: . . .

‘4. An adequate number of professional nurses and ancillary personnel for bedside care.’ ”

Plaintiff’s Exhibit 5, Bylaws, Rules and Regulations of the Medical Staff of Charleston Hospital, to the admission of which there was no objection by the defendant, provided:

“Article II: Purpose.

The purpose of this organization shall be:

I. To insure that all patients admitted to the hospital or treated in the outpatient department receive the best possible care; . . .

Article VIII: Meetings.

II. Consultations.

Except in an emergency, consultation with a member of the Medical Staff will be required in all major cases in which the patient is not a good risk or should the diagnosis appear to be obscure, and also in all first caesarean sections.

13. Surgical Consent.

No patient will be operated on without the written consent of the patient. In the case of a minor, or if he or she be mentally incompetent, their nearest of kin or guardian must be a signatory to the consent; exception being, in case of emergency. . . .

H. All surgeons should review their operative routine at their earliest convenience so that they may be brought up to date and the Operating Room nurses so informed. . . .

18. Emergency Room Regulations, etc.

A. Personnel.

1. Medical.

The Medical Staff will provide medical coverage for emergencies on a rotation basis. A list indicating medical men on dnty will be provided and posted by the hospital at all points necessary. The hospital will notify the doctors as to their turn of duty in advance.”

Dr. Kenneth Babcock, a witness for the plaintiff, testified that he is the director of the Joint Commission on Accreditation of Hospitals, which is governed by the American Medical Association, the American College of Surgeons, the American College of Physicians, and the American Hospital Association. The Joint Commission is an independent body which sets up the standards and regulations for the accreditation of hospitals. The Charleston Hospital was a member of the American Hospital Association and was so accredited during the month of November, 1960; as such, it was provided with a copy of the Standards for Hospital Accreditation, which are Plaintiff’s Exhibit 15. These same Standards control accreditation in all parts of the United States; they were in effect on a national basis. The Charleston Hospital had been first so accredited in December, 1959.

Wayne P. Annis, on cross examination by the plaintiff under Section 60 of the Civil Practice Act, testified that during November, 1960, he was the administrator of the Charleston Hospital and that it had received a copy of the Standards for Hospital Accreditation, plaintiff’s Exhibit 15, before that time. Plaintiff’s Exhibit 5, the By-Laws of the Medical Staff, were then in effect; and Annis was familiar with the Regulations of the Department of Public Health, contained in Plaintiff’s Exhibit 8. Those Standards and Regulations had to be met and conformed to in order to be licensed and accredited. The hospital administrator supervised the various divisions of hospital service. He was the representative of the Board. He had a right to examine the nurse or hospital records on any patient.

The Hospital Administrator stated that no laboratory or other tests were made of the plaintiff while a patient to determine micro-organisms or whether or not a process of necrosis was going on in his leg,— the Hospital had no such procedure. On behalf of the hospital, Annis had made, sometime before trial, an investigation to determine how the cast had been applied. He had then answered an interrogatory of the plaintiff before trial as follows:

“So far as this defendant knows, Dr. Alexander did not apply any gauze, dressing or padding to the leg before the cast was applied . . . .”

At no time had he recommended to the parents of the plaintiff that special nurses be employed. He kept acquainted with the case pretty generally. The nurses reported to him on a daily basis the developments. The nursing director reported to him the generalities of the condition of the patient. He said he was kept well informed of the progress of the situation. He knew the patient was a problem. He considered a comminuted fracture of both bones of the lower leg requiring closed reduction, as a minor orthopedic procedure in which there should be no complications if properly handled by the hospital and doctor. The nurses did tell him that the patient was experiencing a great deal of pain in the leg; they did not tell him that there was a foul odor in the room, or that the foot had become cold on November 7th. He was not told of the large blisters on the foot, or that the skin of the foot had turned black and blue within 24 or 36 hours. At first he could not say whether the cutting of the plaintiff’s leg, when the cast was split, had been reported to him, though later he stated that he was told that the leg had been cut by the hospital’s Stryker saw. There was no protective device on the saw by which the depth of the cut could be regulated. The nurse who assisted in splitting the cast was a hospital employee.

Bex Darling, Jr., the injured plaintiff’s cousin, a plaintiff’s witness, noticed blisters form on the toes and foot which protruded from the cast and called the presence of such blisters to the doctor’s and nurses’ attention. The heat cradle was in place over the leg until late Sunday night following. On Monday, the foot was hard, waxy, and stiff to the touch. The pain continued; the patient was in constant pain. The patient felt nothing Monday night when Bex Jr. pinched his toes. Bex Jr. told the Doctor the condition of the toes he’d noticed. After the cast was split the lower part of the cast was stained and soggy, wet to the touch. There was a great amount of drainage in the leg. Starting around Wednesday, after the injury, there was a definite smell in the room that got worse— a “rather putrid stench.” The pain was so bad that the plaintiff kept grabbing the sides of the bed and kept asking for medicine. He was very restless. The nurses would tell him to be quiet on occasion.

Kenneth Darling, the plaintiff’s father, a witness for the plaintiff, testified that his son had some difficulty recognizing him at first. At that time, Saturday evening, there was a heat cradle on the leg and it was still there Sunday evening when the father left. Tuesday evening, Mr. Darling talked on the telephone to a nurse who said: “she came very near to calling you today because Pat (the plaintiff) was in such terrific pain.” Later in the week, Friday, Saturday, and Sunday, there was seepage around the cast, which seepage extended out over the pillow — some medicine, and some blood. There was a very noticeable “terrifically foul stench” in the room. The foot was swollen and part was a. grayish-blue. One of the nurses also commented to Mr. Darling on the odor. The patient would writhe and his face would grimace with pain; he would grab the edge of the bed and hold on in attempting to relieve the pain. Wednesday of the second week when the father was there again the seepage continued and it was “a really foul odor in the room.” The second weekend, he was removed to Barnes Hospital. At that time Pat still had quite a lot of pain and there was “this terrible odor.” Dr. Reynolds tried to save the leg by successive strip-pings of dead tissue. The father saw some of this the day after admittance to Barnes Hospital. The limb was “real dark, decomposed condition of decay.” When, however, tissue had been lost to the extent shown by the Plaintiff’s Exhibit 1, taken January 23, 1961, it was considered better to remove the leg, and that was done. An artificial limb was subsequently obtained.

Rex Darling, basketball coach at the University, who was the injured plaintiff’s uncle, testifying for the plaintiff, said he saw the plaintiff almost daily. He saw discoloration of the injured tissue, seepage in the cast, and an odor like decaying flesh from the leg which he said he had not smelled since World War H. Around Thursday of the first week he noticed and discussed this odor with the nurses. One nurse told him this was a normal cast odor. Rex told her that it was not, that he had a good deal of experience from sports with casts, and that this smell was completely different. He did not notice any abating of the patient’s pain.

. Anna Myers, called by the plaintiff, testified that sbe was a Registered Nnrse at the hospital and was medication nnrse and relief supervisor when the plaintiff was there. She thinks the foot was swollen. She observed blisters. The references in the Nurses’ Notes on November 6 and 7 that the foot was “very edematous” meant that it was very swollen; on the 7th there is an entry “very edematous and dark”; the entries as to it being “cyanotic” meant that it was bluish in color; she recalled the situation prompting the entry “foul odor” — it didn’t “smell good.” At the trial she said she had talked to Dr. Alexander about her observations as to pain, odor, or color of the foot. In a pretrial deposition she had testified she had not so talked with him.

Joy Schelling visited the plaintiff in the hospital Sunday, Tuesday, and Thursday following his injury. As a witness for the plaintiff, she said, Sunday, he was in a great deal of pain and sweating excessively. Tuesday, he did not recall her having been there on Sunday. At that time, she noticed blisters on his right foot. Thursday, Joy observed a smell in the room which seemed like “burnt flesh.” Tuesday of the second week she observed the leg where the cast had been opened and, as an art student, observed that the leg was rough, hard, tight, and of a grayish-purple color. His face was contorted with pain and the cast was soaked with drainage. The odor was more intense the second week.

Albert Fisher, a plaintiff’s witness, observed Tuesday after the injury where the leg and the cast had been cut, with drainage into the cast. The patient was in great pain. Fisher observed a strong odor Thursday after the injury and more intensely in the second week, which, as a zoology student, he stated was similar to that encountered when he cut open animals which had been dead for a long time.

Marjorie Darling, the plaintiff’s mother, testified for the plaintiff that he was in great pain at the hospital; that since the injury his disposition and personality had greatly changed. Where he was formerly easy-going and considerate, he was now sharp-tempered. The stump is tender and forms blisters which break, with puss and blood getting into the stump socks which she observes in washing them. Because of this soreness, he often cannot wear the artificial leg. She saw the upper part of the cast, which had been removed, taken out of a cabinet in the room and put back on top of the leg just before the plaintiff left Charleston Hospital.

The plaintiff himself testified that he was in a good deal of pain at the Charleston Hospital. He remembered Dr. Alexander splitting the cast Tuesday of the first week, and, in that process, cutting him on one side of his leg. When he protested, one of the nurses gave him a hypo, and he didn’t remember anything more. The next morning when they changed the bedding, the underside of the pillow on which the leg rested was full of blood. He stated that when he was taken to Barnes Hospital, Dr. Reynolds, from November 19 to February 23, kept stripping away dead skin and flesh. Sometimes he was under no anesthetic, and there was no sensation. The leg was then amputated. The stump is still very tender and forms blisters. He has had to give up all of his recreational activities, including athletics. There are phantom pains which feel as if the foot is still there and like someone is sticking it with a pin; at other times, the missing foot will seem to itch.

Dr. Fred C. Reynolds, for the plaintiff, testified that he was director of the Orthopedic Clinic at the Barnes Hospital Group and head of the Orthopedic Surgery section at Washington University School of Medicine; and that he is president of the American Board of Orthopedic Surgeons. Dr. Reynolds described the plaintiff’s medical history and appearance. When he first saw the patient, November 19, 1960, there was dark discoloration on the top of the foot and front of the ankle, some blisters on the foot and ankle, the foot was swollen, there was inability to move the toes, loss of feeling on the top of the foot, a slight nick on the side of the leg, and a 3 inch laceration on the other side of the leg.- The reduction of the fracture, by the X-rays, was excellent. The dark skin was in an area which had lost vitality, in all probability from interference of circulation. The blisters came from swelling after an injury where there is a large amount of hémorrhage or edema. He thought there was an interference of circulation to some of the muscles, so they did not have nutrition — an ischemic necrosis of the muscles, — a Volkman’s paralysis or ischemia. It was not at first possible to tell how extensive this was and he recommended waiting awhile and try to continue treating without surgery. On November 23rd the wound was incised and inspected, there was drainage, but no dead tissue was removed at that time. On November 26th the leg was opened more extensively, some dead, necrotic muscles and tendons were removed, the wound packed, and a plaster splint applied. Necrosis means dead. Later a metal screw and wire suture were placed to give some fixation to the fracture. Dr. Reynolds wanted to try to save some usefulness of the leg, if possible, and he continued to remove portions of dead tissue, muscle, and tendons up to January 23, when the leg was amputated about 8 inches below the knee. The death of this tissue was “due to interference of circulation to the muscles.” In his opinion, “the circulatory impairment in this instance was the result of compression of the circulation by swelling or hemorrhage or both, which was maintained or constricted by a plaster cast.” As to the cutting of the leg in splitting the cast “that tipped the scale and tied onr hands,” since there was dead tissue complicated by infection in these cuts. Before amputating the leg, a photograph, which is the plaintiff’s Exhibit 1, was taken which, Dr. Reynolds testified, correctly showed the appearance of the leg at that time, making the amputation necessary. He identified the medical text books, later referred to, as recognized, orthodox texts. The changes in appearance a doctor must be alert for in such a case are swelling, discoloration, loss of feeling, and coldness, and the presence of pain is probably one of the most significant indications of interference of circulation under a cast. If there is pain, swelling, and a dark color of the foot an interference of circulation is indicated. The cast should be split and the leg elevated. At some time between 6 and 24 hours after circulation has been impaired to muscles the point of no return is passed, i. e., the condition is irreversible, and the muscles cannot survive if circulation is restored following such period of time.

Nurse Director Patricia Jenkins testified for the defendant that the Stryker saw which cut the leg when the cast was removed — an electric saw, — was owned by the hospital. The nurses and the orderly who assisted in applying the cast, and in cutting the cast, were hospital employees. She also testified, as of the time the cast was first applied: “At that time it would be expected that he did have excessively traumatized soft tissue of the lower right leg because of the type of fracture. Blisters developed. Of my own knowledge I could not answer whether any step was taken to sterilize the skin before the cast was applied.”

In its answers to the plaintiff’s interrogatories before trial, the hospital had answered that no “sterilizer or disinfectant was applied.” The doctor also said the leg was not washed or sterilized.

Lelia Carroll, a witness for the defendant, testified that on November 5, 1960, she was a practical nnrse employed by defendant. On that date she, an orderly named Steve Goodson, and a nurse, Yera Bezruki, helped Dr. Alexander apply the cast to Pat’s leg. The leg was not shaved. No sterilizer or disinfectant was applied.

Madeline Snoddy was the medicine nurse. As a witness for the defendant she remembered Bex Darling, Jr. asking for pain medicine for the plaintiff numerous times. From her own observations, he was in pain. She reported her observations about the pain to the supervisor.

Yera Bezruki was a practical nurse employed by the defendant who helped apply the cast. She testified for the defendant that she did not tell either Dr. Alexander or Dr. Swickard “about the foul order I noticed in the room.” She reported it to her supervisor.

Dr. Alexander testified for the defendant' that he was engaged in general practice, graduating from the University of Illinois in 1927, and being licensed in 1929, after an interneship in Chicago. On November 5, 1960, “there was a type of emergency service arranged at the hospital so that when an emergency arose, there was a doctor to be called. ... I was on emergency service on November 5, 1960.” He received a call to come to the hospital that afternoon and went to the emergency room.

Dr. Alexander testified that he put muslin on the leg part way up before applying the cast, and the muslin was left under the cast, except the muslin was cut off the foot. He reiterated later that he had padded the leg, at least in part. The hospital had answered an interrogatory before trial as follows:

“Interrogatory No. 7.

‘What type of gauze, dressing or padding was applied to the injured leg before the cast was applied? . . .

Answer: So far as this defendant knows, Dr. Alexander did no apply any gauze, dressing or padding to the leg before the cast was applied. . . .’ ”

Dr. Alexander had testified on a deposition, as to the cast application, a year before trial, as follows:

“Q. Was it in direct contact with the skin?

A. • Yes. . . .

Q. After the cast had been wrapped, what did you do with the gauze Goodson was holding on to?

A. Cut it.

Q. Then was it pulled out ?

A. Cut and pulled out . . .”

The doctor also testified that he saw no wadding available at the time he applied the cast. After November 5, the doctor observed blisters on the foot; the foot and leg were both swollen and edematous; and the foot was dark. Pain was present, and eleven separate pain medications were given on November 8. The leg was cut in removing the cast and there was some blood. At no time did he ever request any consultation by another doctor nor was any consultation ever suggested by the hospital. He said it was possible to immobilize a broken leg by splints, sand bags, or traction. If there was no cast on the leg it could not constrict it. When he first saw the plaintiff there was already present so much soft tissue swelling he did not think there could be any more swelling. None of the hospital employees present when the cast was applied objected to the doctor’s procedure. He • said if infection were present, and the tissue was swollen, and the flesh constricted by the cast, that could be a source of intense pain. Where there is a constriction of soft tissue he did not think it necessary to check the toes for circulation every 10 or 15 minutes, despite a suggestion in Watson-Jones’ work. When temperature is lost in a foot he’d say the damage becomes irreversible within 12 hours; if the temperature in the foot is completely gone it is too late after 4 hours to change. He said the application of heat will sometimes increase circulation and that sometimes increases swelling. He did not agree with excerpts from the works of Colonna, Thorek, and Compere warning against unpadded skin tight plaster casts in treating fresh fractures.

Dr. Alexander had testified that he had set between 200 and 300 legs during his period of practice. Upon cross-examination, he was requested to name any patient whose leg he had set during the three years from 1957, when this hospital had opened, until the date of the plaintiff’s hospitalization in 1960. The hospital records were produced for him to refresh his recollection. It turned out that the only fracture cases he had set personally were two ankle injuries, and one of these resulted in a nonunion.

Dr. Alexander admitted that he could not recall what textbooks on orthopedic procedures he had studied in medical school before graduating in 1927. He could not recall the names of any books on orthopedic procedures he had studied in the last ten years to update his major orthopedic procedures. He was not familiar with Watson-Jones “Fractures and Joint Injuries,” or Key and Conwell’s “Fractures, Dislocations, and Sprains.” During the entire period he was on the hospital staff he had never been examined orally or in writing by the board, administrator, or medical staff concerning procedures in the treatment of fractures. He had finished his formal medical school studies in 1927. He admitted that medicine had not stood still since then. He acknowledged that important changes and improvements had occurred since then, and some improvements had been made since then in the treatment of broken bones.

Wayne Annis, the Hospital Administrator, examined by the plaintiff under section 60 of the Civil Practice Act, testified:

“As the Board’s representative, I did nothing to see that Dr. Alexander reviewed his operating techniques for the handling of broken bones. So far as I know, Dr. Alexander may not have reviewed his operating techniques since he was first licensed to practice in 1928. No examinations were ever given. I never asked questions of the doctor about this matter. The governing board, neither through me nor through any other designated administrative representative, ever checked up on the ability of Dr. Alexander as compared by medical text books. I had access at the hospital to some good orthopedic books .... Other than buying these books, I never made any effort to see that Dr. Alexander, or any other physician admitted to practice more than thirty years ago, read them”;

that in November, 1960, the consulting staff included two Board Certified orthopedic surgeons, Dr. Ross and Dr. Petersen, who had frequently performed or assisted in orthopedic surgery in the Charleston Hospital. However, Annis did not ask either of them, nor did he ask Dr. Swickard, head of the Hospital medical staff, to look in on this case. Nor did any other hospital officer, employee, or representative request Dr. Alexander to consult with any other physician. Mr. Annis said for example, that he would not permit any member of his active medical staff to perform brain surgery and would stop them if they attempted to do so.

Dr. Martin Koeck testified for the plaintiff that he is a general practitioner, licensed in 1948, and practicing about thirty miles north of Charleston, in a small community. General practitioners, he testified, as well as specialists, refer to standard orthopedic texts to keep abreast of modern techniques in surgical and fracture treatment. Such orthodox medical works include: Watson-Jones, Fractures and Joint Injuries; Key and Conwell, Fractures, Dislocations and Sprains; Colonna, Principles of Orthopedic Surgery; Depalma, Management of Fractures and Dislocations; Compere and Banks, Pictorial Handbook of Fracture Treatment; Thorek, Surgical Errors and Safeguards. He refers to them in his practice.

Dr. Clinton D. Swickard, Chief of the Hospital Medical Staff, testifying as a plaintiff’s witness, stated that he was never consulted about the case and that neither Mr. Annis, nor any other hospital representative, ever brought the case to his attention. To his knowledge, no member of the medical staff consulted with Dr. Alexander about it. Consultation normally would be at the doctor’s request. Upon different and earlier occasions, however, Dr. Swickard had been called in by a nurse in an emergency situation at the Charleston Hospital to see a patient of another doctor, where difficulty was experienced. He had handled setting of broken bones since 1916, most of the time in this County, and he was familiar with the usual, orthodox practices in handling such in the County, and he followed such practices. He further stated that there is always a great deal of soft tissue injury around any fracture which causes considerable swelling, which swelling continues usually for several hours, and which usually would be all gone in three days. A change in color of the toes or foot or loss of temperature signifies circulatory impairment, requiring the cast to be loosened to relieve the impairment. Where swelling in the toes persists it is good practice to cut the cast. Complaints of pain persistently in a freshly cast limb are a sign of danger and should not be masked by drugs. A change in color is frequently the first sign of impairment — to some extent he’d loosen the cast then. If the foot loses temperature, he’d loosen it more. After such a change of color a period of 24 hours might or might not produce irreversible damage. If it becomes irreversible that is the point of no return — one cannot then help the circulation. There are quick and extra quick drying plasters available. He does not use any artificial implement for drying plaster — just air contact— though some members of the Hospital medical staff do and he does not feel it is bad practice. But after a cast is dry there is no medical purpose for further maintaining a heat cradle. He said physicians keep up their orthopedic techniques by, inter alia, reading authoritative publications which include “those which are in front of you” — all of which books were available to the staff in November, 1960, at the Hospital. Those were the books named by Dr. Koeck.

Dr. Mack Hollowell, for the defense, of the medical staff of the Hospital, in response to a hypothetical question, said the patient needed, when brought in, immediate medical attention, and needed the treatment given before the father signed the permit, and the methods used by the nurses to notify the doctor of complaints of pain, swelling, and otherwise, were proper. He said Dr. Alexander was qualified to reduce broken bones in the lower leg. He thought the blisters were the result of the fracture which injured the return circulation. It was usual and customary practice for a male orderly to help apply traction during the reduction, to elevate the- leg on pillows, to give the medications given, and the partial cutting of the cast Novemer 6th, and the splitting of the cast November 8th. He thought the application of the cast here was done properly. Splitting a cast causes loss of ability to hold the fracture in position. He thought the cast was here split as it should have been. He was asked regarding the above medical works maintained by the hospital. The procedures described by Watson-Jones and DePalma have become “a part of my general understanding and knowledge. All of those things have entered into my background understanding and knowledge which forms the basis on which I gave the answers to you today.” The witness also brought along a text by Bancroft and Marble, and read excerpts from a chapter by Ralph Carothers. References to the text books were made in the cross-examination.

Neither Dr. Swickard nor his partner Dr. Hollowell, use unpadded plaster casts. Dr. Hollowell stated that unpadded plaster casts may be very dangerous, and “If a plaster cast is applied immediately after a fresh injury Avhere soft tissue swelling is to be expected, one of the fundamental rules is the cast should immediately be split.” There are many other ways, he said, of immobilizing broken legs without using plaster, such as traction, or open reduction, or external fixation. If there is persistent pain under a cast, it must be split; it is one of the important signals of danger. One of the last things to do, he said, is to cover up pain so one does not have that warning. If the toes are swollen, or discolored, or temperature is lost in the toes, steps must be taken. The toes should be tested every fifteen to thirty minutes for a quick return of blood and voluntary movement. He said one text writer said to use unpadded casts because such more adequately holds the fracture, and Dr. Hollowell thought that technique acceptable if properly handled. He said he’d not wait three days to split a cast where there was persistent pain, the toes turned blue or cyanotic, were swollen, and turned cold. He agreed that it was the responsibility of a Hospital Board to limit a physician’s work • in the hospital to areas in which he is competent.

Anthony J. Perry, Hospital Administrator for the Becatur-Macon County Hospital, Decatur, Illinois, a witness for the defendant, testified in response to a hypothetical question that the nursing personnel at the hypothetical hospital was adequate and in conformity to standard practice in the area, the supervisory personnel were adequate, the laboratory tests available were customary, the laboratory personnel, based on their AMT ratings, were adequate, monthly meetings of the executive committee and medical records committee of the medical staff were customary, the appointment to the medical staff of a doctor in practice since 1928 was customary practice, it was the responsibility of the attending physician, in conformance with rules of the medical staff, to call in specialists or staff consultants, and using a male orderly to apply traction under a doctor’s directions is customary. He belonged t