Lyle RUSSELL, Appellant, v. Charlotte HARWICK and Earl Harwick, her husband, Appellees, 166 So. 2d 904

CARROLL, Judge. The appellee Charlotte Harwich fell and broke her hip. Following an operation and treatment by the appellant Dr. Lyle Russell, an orthopedic surgeon, Mrs. Har-wick sued Dr. Russell and others charging negligence and trespass to the person. Her husband, the appellee Earl Harwick joined in her suit claiming derivative damages. A jury trial resulted in a verdict against Dr. Russell in favor of Charlotte Harwick in the amount of $60,000 and in favor of her husband Earl Harwick in the sum of $40,000. Judgment was entered thereon and Dr. Russell has appealed. The complaint alleged that Dr.

Russell was negligent in failing to inform the plaintiffs as to the alternate methods of surgical treatment he contemplated, and in proceeding without the informed consent of the plaintiffs; that had they been informed of such alternative procedures they would not have consented to the procedure utilized; that there was negligence in selecting the surgical procedure employed and in subsequent treatment through failure to diagnose and treat an infection which developed. The plaintiffs claimed that the negligent acts had resulted in lasting injuries to Mrs. Harwick. The defendant Russell joined issue.

A motion he filed for

summary judgment was denied. The appellant presents nine points. The first five deal with sufficiency of the evidence on the several issues. The record in this case is extensive. The case was elaborately tried. The several specifications of negligence and breach of duty gave rise to issues on which abundant but conflicting evidence was submitted by and on behalf of the parties. No useful purpose would be served by a detailed discussion of the extensive testimony presented. Mrs. Harwick was treated by Dr. Harris, an internist and Dr. Russell the orthopedic surgeon. Dr.

Harris was a friend of the plaintiffs and had rendered professional service to them in the past. They engaged him to take charge of the case. His training fitted him to supervise the medication, but not the surgical processes. There was an issue and conflicting evidence on whether the plaintiffs were informed as to the nature of the operative processes contemplated and recommended by the surgeon, and their risks, dangers, and outcome probabilities. A jury question was presented as to whether the consent given for surgery by Mr. Harwick was an informed consent.

The doctor attempted as a first process to reduce the fracture by manipulation to be secured with the use of a nail. Unable to obtain the proper positional result in that process, Dr. Russell proceeded with an alternative process in which he performed an operation of severing the head of the femur and substituting therefor a metal (Austin Moore) prosthesis. This operation amounted to major surgery, and one which was calculated to result in some change in the length of the leg.

The plaintiffs stated that had they known this was the intended or contemplated procedure they would have insisted on an orthopedic consultation, and would not have been in favor of the process. There was also an issue and conflicting evidence from which the jury could have found for or against the defendant doctor as to the need or propriety of the process undertaken in view of the lack of emergency and the circumstances of the injury as then present. There was a further issue, with reference to an internal infection which developed at the location of the surgery, and which Mrs.

Harwick suffered from in the weeks immediately following surgery. From the evidence the jury could have concluded that following the operation there were signs of internal infection which went unheeded and untreated for some two weeks, and that the infected area should have been recognized and treated by aspiration. The accident occurred January 11th. The operation took place January 13th. The signs of infection appeared some days thereafter. The first week in March Mrs.

Harwick was taken to New York where another doctor operated and found the severe infection at the operation site, and its result which included damage and loss of tissue in the area. The ultimate result was necessity to remove the prosthesis and leave the hip without any adequate connection. In view of those disclosures the jury, with the aid of medical opinion evidence presented, could have found negligence on that issue. Basically, this appeal amounts to a contention of want of evidence or of sufficient evidence on the material issues.

We find no such deficiency in the record, and our examination of the record leads to the conclusion that the verdict was justified and had adequate evidentiary support. We have considered the remaining points raised by the appellant, one dealing with the matter of admission of certain evidence, one as to the refusal of the court to grant a mistrial for an incident which occurred during the trial, and two relating to the refusal to give certain requested charges, and we find no reversible error has been demonstrated. Whereupon the judgment appealed from is affirmed. Affirmed. .

The injury was a transverse subcapital fracture of the femur. . Thomason v. Miami Transit Company, Fla.1958, 100 So.2d 620; Gordon v. Cozart, Fla.App.1959, 110 So.2d 75; Kimbro v. Metropolitan Life Ins. Company, Fla.App.1959, 112 So.2d 274; Liefer v. Walton, Fla.App.1962, 140 So.2d 350.