DAWKINS, District Judge:
This diversity action was brought against the malpractice insurer of certain plastic surgeons
Thereafter plaintiff sought by motion to vacate the conditional order of remittitur on the ground that defendant's motion for new trial did not specify excessive quantum as a ground therefor; and that under Fed.R.Civ.P. 59(d), the court lacked judicial authority to grant a new trial on its own initiative except within 10 days after entry of judgment. The district court in a written opinion, 36 F.R.D. 253, denied plaintiff's motion. After this court refused to entertain an appeal from the district court's interlocutory order, plaintiff consented to entering the remittitur, but only under protest, and has steadfastly refused to accept the fruits of her judgment, relying on Delta Engineering Corp. v. Scott, 322 F.2d 11, 15 (5 Cir. 1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964).
Consequently, plaintiff perfected this appeal, placing at issue the propriety of the district court's conditional order of remittitur. Defendant filed a cross-appeal, based upon the district court's refusal either to direct a verdict for it at the close of plaintiff's evidence or enter judgment n. o. v. We have concluded that the district court abused its discretion in ordering the remittitur described, but that the judgment was correct in all other respects. Accordingly, we affirm in part, but reverse the order of remittitur and remand with directions to reinstate judgment in the full amount of the verdict.
Examination of the facts in some detail is necessary. Plaintiff was burned
Plaintiff does not complain of the plastic surgery itself. Rather, her claims of negligence relate to the postoperative care accorded her, which consisted of bandaging and splinting the legs so as to immobilize them and facilitate success of the skin grafts. This procedure included the tying of a dressing to the site of the graft, application of surgical rayon stockings covering the upper legs, and placing of the legs in plaster splints or half-casts, extending from the top of the thighs to the feet, with the anterior portions of both legs exposed. This requires use of a padding called sheet wadding between the immobilized legs and the splints.
Upon return to her hospital room following the operation plaintiff complained of pain in the posterior portions of her legs, predominantly on the left. One of the doctors adjusted the bandage on her left ankle, and administered medication, but the plaintiff's relief was brief. She continued to suffer from burning pain originating in the back of her legs, areas not involved in the plastic surgery.
On the second day following the operation, with recurrent pain persisting, the dressing was again loosened, and a blister formation was seen on the back of the patient's left leg about four inches above the heel. It is undisputed that at this time the doctors definitely knew what was happening to plaintiff's legs. Pressure caused by the weight of the legs against the splints was cutting off blood circulation to the skin on the posterior of her legs. Blistering is the first objective sign, with burning pain as the subjective symptom, of necrosis, or dying of the skin from lack of circulation. Neither is it disputed that, although plaintiff continued to complain bitterly of burning pain in an area not involved in the surgery, it was not until the fourth post-operative day that her legs were removed from the half-casts. Then it was seen that she had sustained severe necrosis of the posterior portions of her legs, with blistering and dead skin on the left extending from mid-thigh to ankle.
Because of complications caused by necrosis, plaintiff's recovery was prolonged and most painful, although the skin grafts to her thighs were successful. Two additional operations were required involving another graft, in which skin was removed from her buttocks and grafted to the posterior aspect of her left knee. Even though the second skin graft was successful, she has lost some of the function of her left knee because of the necrotic condition. Moreover, this graft has caused disfigurement, visible even when she is wearing street clothes.
By her appeal plaintiff seeks to set aside the order of remittitur and reinstate the verdict awarding her $49,000. In Delta Engineering Corp. v. Scott, supra, we assumed without deciding that until such time as a plaintiff actually has obtained the fruits of a judgment he or she is free to challenge the legal correctness of the Court-enforced remittitur. In the case here presented we are faced with that issue squarely, and we hold that plaintiff here, who was refused an appeal on the interlocutory order of remittitur and who has consented to entry of the reduced judgment only conditionally, as a means to facilitate this appeal, has suffered a sufficiently adverse adjudication to allow an appeal.
At the end of the first period of hospitalization plaintiff was able to walk only with the assistance of crutches. When there was sufficient healing she was re-admitted for a two-week hospitalization during which plastic surgery was performed to replace the skin on the posterior aspect of the left leg. When this was terminated plaintiff continued to use crutches. A few months later a third operation was performed to correct the second graft to the knee joint, which cause a tightening of the joint from the new skin. Another graft was needed to relieve this tension on the leg so it could straighten itself. On the issue of liability it is significant that following this third episode of plastic surgery splints were again applied. When, a few hours after surgery, plaintiff began to complain of a burning pain like the previous one, the splints were removed and she was merely admonished to keep the leg elevated and immobile.
She again used crutches to walk following the third skin graft and continues to experience a significant loss of function in her left leg. In all she was hospitalized for about eight weeks in the period from September, 1960 through February, 1961, during which she suffered greatly.
Prior to surgery plaintiff had worked as a dental assistant and as a waitress, both requiring a substantial amount of standing and walking. She was quite athletically inclined and enjoyed sport parachuting or sky-diving. Since the initial operation she has been unable to resume either her former occupations or her athletic activities because of significant loss of function in the left knee joint. Standing or walking for extended periods is overly fatiguing. On one occasion she sought employment with a local telephone company but was rejected because of her physical disability.
Visually, serious permanent scarring is present on the back of plaintiff's lower legs, particularly the posterior of the left knee, which cannot be satisfactorily hidden. Upon this set of facts, essentially undisputed by defendant, who appears concerned primarily with the liability issue rather than quantum, we are of the opinion that the verdict awarding plaintiff $49,000 had ample support in the record. There has been no showing that the jury's verdict resulted from prejudice or misconduct, and we feel that the factfinders' conclusions on quantum, amply supported by the record, must stand. Consequently, we regard the trial court's grant of a new trial, on condition of remittitur, to be an abuse of discretion.
By its cross appeal defendant raises two interrelated issues for decision. First, it contends that the district court was in error when it allowed plaintiff's expert medical witness, a general practitioner, to testify concerning the alleged malpractice by the insured plastic surgeons. In effect defendant contends that the postoperative treatment, alleged to have been negligently performed, was so interwoven with the surgical operation itself, that the two must be treated as a single episode of an operation, which would be peculiarly within the knowledge of a specialist. Thus, it argues, the general practitioner plaintiff relied upon as an expert was not qualified to testify; and, without the testimony of a competent expert, plaintiff's case could not go to the jury.
Defendant's assertion that the insured doctors, knowing full well that necrosis was beginning to develop, were called upon to exercise their professional judgment as to whether manipulation of plaintiff's legs to treat the complications would overly endanger the fresh skin graft, is best pointed out by Doctor Meade's response to a question put by the trial judge:
Defendant argues that its insureds were called upon to determine the consequences of such a procedure and act according to the prevailing standard of care for such a judgment, which lies only within the scope of knowledge of a plastic surgeon. Therefore, it is contended, since plaintiff produced no evidence that the insured doctors' acts fell below the standard of care required of plastic surgeons, there was no evidence upon which a jury could find malpractice.
This argument misses its mark. Throughout the trial plaintiff's expert, a general practitioner, was candid about his lack of any knowledge of plastic surgery as a specialty. The burden of his testimony was that application of the splints, a mere mechanical act often performed by technicians, was not done with the care required by ordinary medical prudence. His opinion was based upon the type of injury sustained — necrosis with resulting loss of skin, caused by pressure of the legs against the splints — as to which there was no significant dispute between the parties, and upon the hospital record itself. The hospital record made no mention as to whether any padding or sheet wadding was used in the splints as pointed out by plaintiff's expert on direct examination:
Neither defendant's insureds nor its experts attempted to contradict the hospital record with reference to the use of padding in the splints, other than to say that placement of padding was a matter of routine which was not always noted in the record. Indeed, each of the doctors seemed to state that he could not recall specifically whether padding had been used. It is manifest that the jury was warranted in drawing the conclusion, as it necessarily did, that no padding had been used and that such an omission was medical negligence. Fault of this type was provable without respect to the credentials of plaintiff's expert. Consequently defendant's objection to his relative expertise is misplaced.
The verdict, which of necessity implies a finding of negligence proximately causing the injuries, is also supported directly by Dr. McIntire's testimony concerning the prevailing standard of care in the New Orleans area with respect to the application of plaster-of-Paris splints, as to which he had had considerable training and experience:
Defendant cites a number of cases
The second point raised by defendant is its contention that the district court committed error in allowing plaintiff's expert to state his opinion "as to the ultimate legal issue involved in the case":
The fallacy underlying the proposition urged by defendant has been long exposed. See e. g., 7 Wigmore, Evidence §§ 1920, 1921 (3rd Ed. 1940). This court has recently rejected a similar contention in Kennelley v. Travelers Ins. Co., 273 F.2d 479, 482 (5 Cir. 1960). There, in a workmen's compensation case the district court had excluded testimony of a pathologist who performed an autopsy. This court reversed, holding admissible testimony as to whether the condition of the decedent's heart and arteries would have produced death without ruptures, as not invading the province of the jury.
Defendant has cited in its brief a number of older cases
A medical malpractice case is one of the classic examples of the necessity of expert opinion testimony as to the ultimate issue — indeed, it appears settled in most jurisdictions that a plaintiff in such a case cannot succeed without it. See note 4, supra.
Further considering defendant's argument as an attack upon the language used by plaintiff's expert, e. g., "Q In your opinion, sir, was there or was there not malpractice? A There was malpractice," our inquiry is whether defendant was unduly prejudiced by such testimony. After careful consideration of the record as a whole, we do not feel that these remarks of plaintiff's expert were unduly prejudicial or overwhelming. Rather, counsel's attack upon that witness, judging from the record as well as his brief, appears to bespeak his irritation with the doctor, who, perhaps because he was also a lawyer, was more articulate and convincing than the other physicians who testified.
Because the district court committed no error in the trial of the case, and for the reasons assigned, the judgment on the verdict in favor of plaintiff must be affirmed. Concluding as we do, however, that the district court abused its discretion in conditionally granting a new trial unless plaintiff remitted a substantial portion of the award, that portion of the judgment is reversed and the cause is remanded with instructions to reinstate the judgment for the full amount of the verdict.
Affirmed in part, reversed in part, and remanded with directions.
Cf. Delta Engineering Corp. v. Scott, 322 F.2d 11 (5 Cir. 1963), cert. denied 377 U.S. 905, 84 S.Ct. 1164 (1964), (verdict returned in the amount of $98,200; remittitur reducing judgment to $75,000 upheld as within trial court's discretion); International Paper Co. v. Busby, 182 F.2d 790 (5 Cir. 1950) (verdict of $11,000 reduced by remittur to $5,000 upheld as within trial court's discretion).
But cf. Agnew v. City of Los Angeles, 97 Cal.App.2d 557, 218 P.2d 66 (1950) (in a malpractice case a specialist in pathology was held qualified to testify as to the cause of aseptic necrosis generally, and as to the cause with reference to plaintiff).
Louisiana seems to accord to the liberal view. In State v. Carter, 217 La. 547, 46 So.2d 897 (1950), the defendant was convicted of manslaughter. On appeal, the Supreme Court of Louisiana held that the refusal of the trial judge to permit a general practitioner to testify, as to whether an autopsy revealing certain facts would indicate heart disease on the ground that the witness was not a heart specialist, constituted reversible error:
Although the holding in Carter was based primarily upon Article 464 of the Louisiana Code of Criminal Procedure, LSA-R.S. 15:464, providing for the admissibility of opinion evidence of persons having special knowledge by reason of special training or experience as expert testimony, there appears to be no valid reason why the underlying principle ought not to apply to civil actions.
In Carroll v. Magnolia Petroleum Co., 223 F.2d 657 (5 Cir. 1955), plaintiff was injured by collapse of an oil derrick. The district court admitted opinion evidence of a "tool pusher" as "expert" with respect to the cause of the collapse. Upon appeal to this court, we held that the admission of such opinion evidence was reversible error in that the jury was fully competent to determine for itself the cause of the accident: