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Richardson v. State12/9/1998
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We conclude that Mr. Richardson proved the applicable standard of care in this case and that the standard required additional x-rays of his right femur because of his complaints of pain on August 16 and 21. The hospital's failure to order and obtain additional x-rays was a breach of that standard. The next inquiry is whether Mr. Richardson suffered the fracture to his right femur because of the State's breach of the standard of care.
Dr. McCormick is board certified in anatomic and forensic pathology. He has served as a coroner since 1983. As a forensic pathologist, Dr. McCormick diagnoses wounds in living patients to determine how they were made and if they have any legal significance. He also answers questions about pain, how it occurs, why it occurs, and how significant it is. In his opinion, the fracture was caused by the original gunshot wound which struck the femur. He explained that when a low velocity bullet from a handgun enters an extremity and shatters without striking another object before entering the flesh, the bullet has struck bone. All of the other physicians questioned on this point agreed with Dr. McCormick.
Dr. McCormick further explained that it is well known in forensic pathology that a fracture can occur in bone at a site distant from the force of impact of a stressor, regardless of the type of stressor. His testimony was not refuted. The other physicians, except Dr. Andrews, basically agreed with Dr. McCormick's opinion that a fracture could occur distant from the point of impact, but they did not believe a fracture could occur as far from the point of impact as indicated in this case. Dr. Andrews testified he would not expect a fracture to result at a site away from a gunshot wound, but explained he would defer to a forensic pathologist or military medical personnel for an opinion on the issue.
Dr. McCormick testified that it was more probable than not that the fracture to Mr. Richardson's femur occurred because there was a structural weakness of the bone caused by the gunshot wound and that such a fracture would not have occurred in an otherwise healthy man without prior structural weakness. In his opinion, there was no reason, but the gunshot wound, for the fracture. Dr. McCormick's Conclusion is substantiated, not only by the testimony of Mr. Richardson and Ms. Kirts, but also by the testimony of Mr. Kessler.
We accept Dr. McCormick's opinion on the issue of causation and find that the State's breach of the standard of care was a cause-in-fact of the displaced fracture of Mr. Richardson's right femur.
Damages
Our review of the record supports the award of $45,000.00 in general damages made by the trial court. Mr. Richardson suffered a distal 1/3 transverse femur fracture with posterior displacement of the distal fragment. All of the physicians questioned regarding the injury agreed that it is very painful. Due the displacement of the fracture, Mr. Richardson had to undergo surgery for the placement of a rod through his hip into the femur. He was hospitalized for four days. He was in traction for two days before the surgery could be performed. The fracture required more than one year to heal. During most of that time, Mr. Richardson had to use crutches to walk.
Mr. Richardson became depressed, hostile, and angry after this injury. His relationship with Ms. Kirts and their daughter, who was ten months old at the time of the injury, as well as other family members and friends was affected. The State did not assign the amount of the award as error, and Mr. Richardson did not answer the appeal seeking an increase in the award, therefore, we will not address the issue of damages further.
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