The opinion of the court was delivered by: NEWCOMER
On January 24, 1968, plaintiff James Hoey Fear slipped on a piece of ice in the bed of a truck while attempting to lift a box of trash over the side thereof. In order to avoid falling on his face, the plaintiff fell on the base of the palms of his hands and his knees. In so doing, it was ultimately determined that plaintiff Fear had fractured the navicular or scaphoid bone (hereafter navicular) in his right wrist. Upon treatment of this fracture by defendant Doctors Edwin Andersen and Elmer R. Place, the fracture failed to unite causing plaintiff a loss of motion and pain in his right wrist for which he sues for damages. At the time of this accident, plaintiff James Hoey Fear was an inmate at the State Correctional Institution at Graterford in Montgomery County, Pennsylvania.
Plaintiff commenced this action on January 13, 1969, and alleged violations of the Civil Rights Act as well as ordinary negligence. The Honorable Harold K. Wood on March 17, 1969, dismissed all counts of the complaint alleging violations of plaintiff's civil rights but permitted the action to proceed as a diversity action.
1. The plaintiff James Hoey Fear, at the time this suit was commenced, was a citizen of the State of Maryland.
2. The plaintiff was born in Macon, Georgia, on May 6, 1932, and at the time of trial was forty-one (41) years of age.
3. In 1959, just prior to his arrest, the plaintiff was a citizen of the State of Maryland.
4. In 1959, plaintiff was arrested at the age of 27 and subsequently pleaded guilty to the commission of a series of armed robberies. Plaintiff Fear was initially given a prison sentence of twenty-eight and one-half (28 1/2) to fifty-seven (57) years.
5. Plaintiff's minimum sentence was subsequently reduced and on May 8, 1973, plaintiff had four (4) years, nine (9) months and three (3) days remaining to be served on his minimum sentence and fourteen (14) years, nine (9) months and three (3) days remaining to be served on his maximum sentence.
6. On July 12, 1973, the Honorable Milton J. Shapp, Governor of the Commonwealth of Pennsylvania, commuted plaintiff James Hoey Fear's minimum sentence on recommendation of the Board of Pardons as a result of which plaintiff was released from prison on August 11, 1973.
7. The defendants Alfred T. Rundle, Dr. Edwin Andersen, and Dr. Elmer R. Place are citizens of the State of Pennsylvania.
8. On January 24, 1968, the defendant Alfred T. Rundle was the Superintendent of the State Correctional Institution at Graterford (hereafter Graterford).
9. On January 24, 1968, the defendant Edwin Andersen, M.D. was Medical Director at Graterford and was employed on a full time basis in the capacity of Medical Director. Dr. Andersen provided medical services to the inmates at Graterford on a full time basis.
10. On January 24, 1968, the defendant Elmer R. Place, M.D., was employed on a half-time basis by the Commonwealth of Pennsylvania to provide medical services to the inmates at Graterford prison.
11. Both Doctors Andersen and Place considered themselves to be general practitioners of medicine, and the Court finds that they both were in fact general practitioners on January 24, 1968.
12. On January 24, 1968, plaintiff was a Correctional Industries driver and mechanic at Graterford prison.
13. Part of plaintiff Fear's general duties as a driver of this truck included the disposal of trash from the correctional shops.
14. On January 24, 1968, at approximately 2 p.m., plaintiff was loading trash onto his truck inside the prison when he slipped on a piece of ice in the bed of the truck striking his knees and the base of the palms of his hands.
15. Plaintiff immediately walked to the Maintenance Area to report the accident; shortly thereafter plaintiff was sent to the infirmary for treatment of his wrists.
16. Plaintiff's wrists and in particular his right wrist were examined by Dr. Andersen on January 24, 1968, and he applied a wintergreen liniment and ordered plaintiff to appear the following day for x-rays of both arms.
17. Plaintiff described how he had injured himself to Dr. Andersen on January 24, 1968.
18. On January 24, 1968, plaintiff also received an Ace bandage from the dispensary which he used to wrap his right wrist area.
20. Sergeant Klock, the x-ray technician, took x-rays of plaintiff's right wrist on January 25, 1968.
21. Sometime shortly after January 25, 1968, Dr. Harper the x-ray specialist who was called in to read x-rays at Graterford Prison, read the x-rays which were taken of plaintiff's right wrist and on January 30, 1968 made the following report:
"The right wrist shows some cystic change proximally in the navicular. There is a fracture zone through this area. The cystic changes were not present on a film in 1965, but suggest the injury may be older than a few days."
22. Dr. Place read the January 30, 1968 x-ray report of Dr. Harper relating to plaintiff's right wrist very soon after January 30, 1968.
23. On February 8, 1968, Dr. Andersen made a notation on plaintiff's dispensary card that plaintiff was to see Dr. Allen E. Hamburg for a navicular fracture.
24. Dr. Andersen saw plaintiff again on February 11, 1968 and prescribed an antibiotic, aspirin and some ...