Corn v. FrenchCorn v. French
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- Badt
OPINION
Plaintiff sued defendant for the unauthorized and unnecessary amputation of her right breast, alleging that the operation was contrary to her desire and consent and without making an appropriate diagnosis to ascertain presence of malignancy therein, it appearing from a post-operation pathological analysis that there was no malignancy. After the plaintiff had completed the presentation of her evidence, the court granted a motion for involuntary dismissal on the ground that upon the facts and the law the plaintiff had failed to prove a sufficient case for the jury. Rule 41 (b) N.R.C.P. Plaintiff has appealed from that judgment of dismissal. Although she assigns a number of errors claimed to be prejudicial and although numerous points are discussed by both parties, we feel that the issue is narrowed to the question whether the jury could have found from the evidence presented by the plaintiff and the inferences reasonably to be drawn therefrom (1) that defendant had performed the operation without her consent and contrary to her instructions, and (2) that the defendant had been negligent in failing to make a biopsy or obtain a pathological examination of the tissue from plaintiff’s breast before proceeding with the radical operation. We conclude that on both of these issues there was sufficient evidence to go to the jury, and it was therefore error to grant the motion for involuntary dismissal.
(1) Plaintiff testified that on August 12, 1950 she had an appointment with defendant at the latter’s office at Boulder City, Clark County, Nevada: “* * * We talked about the condition of my breast; that there were danger signals; and he examined me and it was my understanding that he would make a test of a lump under my breast to see if it was cancerous. * *
After the removal of her breast she testified to a subsequent conversation with Dr. French at the hospital and she understood him to say that she had had cancer but that he had removed it; that he had got it early and got every bit of it. “I said ‘Are you sure you got it all’ and he said ‘yes,’ and I said ‘How long would it have been before it started to spread?’ He said ‘That I can’t say, maybe two days, maybe a week.’ He said it hadn’t started to spread.” She testified to a later conversation with the doctor at his office in Boulder City concerning some lumps on her ribs. “And I went to see if the cancer was spreading and he said that it could not be, because I didn’t have cancer in the first place. That was the first time I was aware of the fact that the breast did not have cancer.”
Junelle Sherwood testified that she was present at the hospital on August 14, 1950, and recalled the conversation between Mrs. Corn and Dr. French, in which she participated. She stated: “I asked [Dr. French] if he was going to make a test on Mrs. Corn before — test of her breast, and he said that he was, he always did in that case.” She was unable to remember anything further, but on the following day she was recalled and testified: “Mrs. Corn asked Dr. French to be sure and just take a test, and not to remove her breast. He said that he would, that he always did.”
Plaintiff’s theory of this issue is, first, that when she signed the written consent to the operation she had never heard and did not know the meaning of the word mastectomy, and, secondly, that in any event she clearly and unmistakably made known to the defendant that he was just to make a test of the breast and that his answers showed that he completely understood such instructions; that the witness Junelle Sherwood substantially corroborated her testimony; that the jury had the right to believe this testimony and to determine that the operation was unauthorized. The trial court’s reaction to this contention, when made in opposition to the motion to dismiss was as follows: “Now, if any person after signing that sort of consent, which is general in its terms as well as specific, could repudiate it after an operation, there
(2) In any event, as “the consent did not foreclose inquiry into negligent conduct in determining the advisability and necessity for the operation,” Valdez v. Percy, 35 Cal.2d 338, 217 P.2d 422, 425, we turn next to the question as to whether there was sufficient evidence to go to the jury on the question of the defendant’s alleged negligence in failing to make a biopsy or to have a pathological analysis of the breast tissue made as an aid to his diagnosis before performing the radical operation. The reaction of the learned trial judge to this was as follows: “The testimony of Dr. Hemington, the plaintiff’s own witness, was to the effect that he would have done the same thing under the same circumstances. That is, remove the breast without biopsy. And plaintiff, of course, is bound by that testimony and could not impeach that testimony by calling in some other doctor.
“It seems to me that no thought of bringing this suit ever arose until the pathologist’s report showed that what had been taken from Mrs. Corn wasn’t malignant, and when that proved to be the case why she thought that possibly she would still be alive today if her breast had not been removed, and it was unnecessary to remove it.
“But lots of times, as stated before, hindsight is better than foresight. There is nothing to show that Dr. French didn’t use expert judgment at the time of the operation, and did what he or any other doctor would have done under the same or similar circumstances. There was no conflict in the evidence sufficient for the jury to decide any question of fact, and, consequently, the Court must take this case from [the jury] and dismiss the action.”
Respondent’s position is stated by him as follows: “The cases indicate that the law does not hold a physician or surgeon liable for malpractice for every unfortunate result which may occur in medical practice. Such physician is required to possess only that’ degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality, and he need but exercise ordinary care in applying such learning and skill to the treatment of his patient. No higher degree of responsibility is imposed in making a diagnosis than in prescribing treatment. Whether a doctor does or does not possess or exercise the requisite skill or learning in a particular case is generally a question for experts and can be established only by their testimony, and such expert evidence is conclusive where the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen.” In support of this statement respondent cites: Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d 34, 29 A.L.R.2d 485; Worster v. Caylor, 231 Ind. 625, 110 N.E.2d 337; Rodgers v. Lawson, 83 U.S.App.D.C. 281, 170 F.2d 157; Smith v. American Cystoscope Makers, Inc., 44 Wash.2d 202, 266 P.2d 792; Bugg v. Security Ben. Ass’n., 153 Kan. 522, 112 P.2d 73; Costa v. Regents of Univ. of California, 116 Cal.App.2d 445, 254 P.2d 85. These cases do not require discussion.
That negligence may exist in diagnosis, as well as in treatment has often been recognized and, as a proposition of law, requires no discussion. Lawless v. Calaway, 24 Cal.2d 81, 147 P.2d 604, and the cases therein cited.
Plaintiff called Dr. David Hemington as an expert witness. There was much testimony of a highly technical nature and many unsuccessful attempts to frame a hypothetical question which the court would permit. Finally, however, the witness stated: “If the permission for operation was signed as it is here, then I would have felt if I were doing the surgery, that I had the option of using my best judgment in a case with all of these conditions as stated in this record. I feel that I would have done the same as Dr. French. I would have done a complete mastectomy at the time.” Plaintiff’s counsel, claiming surprise, attempted to impeach this testimony by confronting Dr. Hemington with his testimony at a former trial. Defendant objected and the court ruled: “I don’t think that there is any surprise. You knew the attitude of Dr. Hemington. He was a hostile witness more or less to start with, and I can’t see any surprise in this case. Call the jury back. I won’t allow you to impeach him.” Finally he testified as follows: “The ordinary practice at that time, inasmuch as we had no pathologist * * * was, of course, determined, first, by the history, the physical examination, and the findings at operation. Now, ordinarily, in a case such as this, a biopsy would have been done, but if the circumstances at the time of the operation right in the operating room of which I know nothing, warranted, and if the consent is as it was signed, then I believe the doctor was warranted in removing the breast, without biopsy.”
As to his familiarity with the standard practice in the community in the diagnosis and treatment of diseases of the breast (in 1950 when there was no resident pathologist there) Dr. Hemington had some difficulty in his analysis. He said: “I am embarrassed to a certain extent because standards are peculiar things. However, with the commonly accepted methods, I am familiar, yes.” Counsel tried to reconcile the witness’s use of the terms “standard” and “commonly accepted methods.” The witness then agreed with the court’s interposition of its understanding of the situation in the following words: “I imagine that there are all classes of doctors here. Some of them have one standard and some have the other, and some doctors frown on the practice of certain doctors; and maybe the majority of doctors are inferior doctors, and that could be classed as a standard. But I think what this doctor in the preliminary question testified to was that he knew what the ordinary recognized course of procedure was.” Later Dr. Hemington showed his further impatience with any attempt to define standards. He said: “Well, the so-called standards that you fellows are talking about, in my opinion, don’t exist * * He testified that for many, many years (before a pathologist was present in Las Vegas after August, 1950) it was the practice to submit biopsies from the breast to a pathologist in California or elsewhere for a report. He said: “We have done that routinely,” and that this had been the only method whereby a report could be obtained for the pathological study (that is, the determination of what disease is present) of the tissue submitted. However, when asked if that had been “the standard practice,” he said, “I object to the ‘standard.’ I refuse to answer that.” He stated however that he had still submitted his pathological studies to pathologists outside of the area even after there was a pathologist in that area.
Plaintiff called the defendant, Dr. French, as an adverse witness. There was already in the record the fact that the postoperation pathological report (following the operation of August 15, 1950)
The record does not indicate that plaintiff was advised at any time by defendant that what he said was the “standard procedure” in the area, was to perform a radical mastectomy without a determination of malignancy through a biopsy, or that there was no pathologist in the area by whom a pathological analysis of the tissue might be made.
The foregoing lengthy recital of the evidence has been necessary in order to present the problem confronting us. There is no definite or specific expert testimony to the effect that the defendant did not possess the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality, or that he did not exercise ordinary care in applying such learning and skill in the diagnosis of the plaintiff’s ailment as cancer of the breast without a biopsy, or that standard practice required him to disclose to his patient the fact that ho local pathologist was available and the fact that if in his judgment during surgery it seemed advisable he would perform a radical mastectomy without submitting any of the breast tissue to an outside pathologist for examination and report. Absent such expert testimony should the issue of negligence in the diagnosis have gone to the jury? We have concluded that it should.
Counsel have referred us to no case, nor has our independent research brought any to light, in which any court has been called upon to determine the question whether, without expert medical testimony, a jury might, from its own common knowledge and experience, recognize the use of the biopsy or pathological examination and the microscopic analysis of tissue as common and accepted diagnostic practice in determining the presence or absence of cancer. We find numerous examples of cases in which under varying conditions expert testimony was considered unnecessary. See annotation 141 A.L.R. 5. As observed by the court in Burris v. Titzell, 189 Iowa 1322, 177 N.W. 557, 562, 179 N.W. 851: “[Cjases do arise where common knowledge of physical facts and of the natural laws that govern physical life are so well known that a jury, from the facts before it, is able to determine, and correctly, whether the treatment was proper or not.” It was likewise noted in Wharton v. Long, 18 Ohio L. Abs. 147, “that expert testimony is not always required to enable a jury to determine whether a physician has been guilty of negligence or malpractice, and- this is particularly so where the conduct of or treatment administered by the physician is of such a character as to warrant the inference of want of care or negligence in the light of the knowledge and experience of the jurors themselves as ordinary laymen.” These expressions are typical of many found in the cases, although there is no pretension that these or any of such cases are factually in point. However a large class of cases, which we may refer to as the X-ray cases, we believe to be in all respects analogous, although the X-ray may have a longer history of use than the biopsy.
In Reynolds v. Struble, 128 Cal.App. 716, 18 P.2d 690, 694, a verdict for the plaintiff was sustained, the appellate court holding that he was the “victim of an unskilled diagnosis” in that the defendant physician had misread an X-ray. The court said: “Indeed, it might be almost said that the use of the X-ray as an aid to diagnosis, in cases of fracture or other indicated cases, is a matter of common knowledge. Even the layman, when injured, of his own accord seeks the X-ray. And under the rule of Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643, 3 Ann.Cas. 765, the court could, in the absence of testimony, take judicial notice of this scientific advancement.” This was in 1933. Not only did the Supreme Court of California deny a rehearing in that case but it quoted the language appearing above in the later case of McBride v. Saylin, 6 Cal.2d 134, 56 P.2d 941. There a judgment of nonsuit was. entered but reversed on appeal. The defendant physician was sued for alleged malpractice in the treatment of an eye injury. A piece of steel had been lodged in
In Agnew v. City of Los Angeles, 82 Cal.App.2d 616, 186 P.2d 450, 451, the trial court had granted a motion for nonsuit and the reviewing court, following the general rule, considered the evidence in the light most favorable to plaintiff. Plaintiff was suffering great pain as the result of a fall and a possible fracture was indicated. Subsequent X-rays showed that plaintiff’s hip was broken. Nonsuit had been granted because there was no expert testimony that defendant had failed to use that degree of skill and learning ordinarily possessed by physicians of good standing practicing in the community where he resided. The facts testified to by plaintiff showed her fall, her great pain, her several consultations of the defendant and the defendant’s persistence in his diagnosis that she was suffering only from a bruise. The court held that such facts (recited in greater detail in the opinion), if believed, would make a prima facie case in plaintiff’s favor requiring denial of the motion for nonsuit.. The court recognized the general rule. “The law requires that a physician shall have that degree of skill and learning ordinarily possessed by physicians of good standing practicing in the same locality, and that he shall use the same care and diligence in applying that learning to the treatment of a patient. It is likewise the general rule that whether he has done so in a particular case is a question for experts and can be established only by their testimony.” Citing Reynolds v. Struble, supra, McBride v. Saylin, supra, and other California cases, the court, in the following language, noted the existence of the general and specific exceptions to that rule. “General Exception. To the above general rule there is this well recognized exception, to wit, where the question of the propriety of the treatment is a matter of common knowledge of laymen, expert testimony is unnecessary in order to establish liability in a malpractice case.
“Specific Exception.
The use of the X-ray as an aid to diagnosis in cases of fracture or other indicated cases is a matter of common knowledge, and the failure to make use thereof in such a case amounts to a failure to use that degree of care and diligence ordinarily used by physicians of good standing practicing in this community. The court in the absence of expert testimony may take judicial notice of this fact.” The court concluded that when plaintiff fell, a possible fracture was indicated; that it was a matter of common knowledge of which the trial court should have taken judicial notice that an ordinary physician of good standing in the community in the exercise of ordinary care and diligence would have had X-ray pictures taken; that in failing to do so defendant “did not exercise the degree of learning and skill ordinarily possessed by physicians of good
In the instant appeal from the judgment based upon the order granting the motion to dismiss, we are not called upon to determine whether or not defendant, in removing plaintiff’s breast as the result of his original provisional diagnosis and without any pathological examination, failed to use ordinary care and diligence, but rather whether the evidence presented was sufficient to have justified a finding, or a necessary inference from the facts, to such effect, by a jury.
For over two generations pathologists and other medical men have been writing treatises on the pathological analysis of tissues for the diagnosis of cancer, and general practitioners have been sending their patients with symptoms of the disease to specialists. “What everybody knows the court must know.” And this knowledge might well permit a jury to peer beneath the cloak of protection thrown about the defendant by the testimony that his diagnosis and treatment were in accordance with the standards of the profession in his community. This observation becomes stronger when we consider the testimony of Dr. Hemington, quoted above, concerning those standards. 1
In Wiley v. Wharton, 68 Ohio App. 345, 41 N.E.2d
255, digested in Anno. 141 A.L.R. 24, it was held even in absence of expert testimony that the facts while not permitting the doctrine of res ipsa loquitur were sufficient to call for. explanation. So here we feel that the jury may well have reached the conclusion that the facts called for explanation. It is true that the defendant physician, called as an adverse witness, testified fully as to his diagnosis and treatment and that Dr. Hemington, called by the plaintiff, but characterized by the trial court as a hostile witness, did come forward with an “explanation” that the ordinary diagnostic procedure of biopsy was not followed because there was no local pathologist in the county. This might well serve to explain why no biopsy was secured during the operation proper, preliminary to the mastectomy. It would not explain absence of a preliminary or independent pathological examination. There was no evidence that an emergency existed and no explanation as to why a specimen could not have been sent to an outside pathologist or the patiént referred to another city for treatment where these services were available,
2
or why she was nob at least advised that defendant intended to make a diagnosis without the assistance of a biopsy or pathological examination, or why she was not advised of Clark County’s lack of such facilities and the availability to her of these facilities in some other city that could be readily reached by air transportation within the course of á couple of hours. At this stage in the proceedings (before the defendant had made a presentation of his defense) the absence of such explanation is readily understandable. We may not, however,
The upshot of our discussion of this issue is that we are convinced, first, that the jury’s consideration of the use of (or the failure to make use of) the pathological analysis of the tissue, in a proper case, for the purpose of diagnosis, must take its place beside the jury’s consideration of the use of (or the failure to make use of) the X-ray in a proper case, and, secondly, that a jury has a right to take this into consideration in its own common knowledge and experience and without the assistance of expert testimony — the knowledge, concisely expressed, that “ [m] icroscopic diagnosis is the sine qua non of neoplastic disease. It is the only means of absolutely establishing the true nature of the disease.” 3
For the reasons given, we conclude that the order granting the motion for involuntary dismissal was error, and that the judgment must be reversed and the case remanded for a new trial.
Reversed and remanded with costs to appellant.
Merrill, C. J., and Eather, J., concur.
Notes
It may be noted too that Dr. Hemington’s language approving the removal of the breast without biopsy was at best equivocal. His approval was based upon the combination of two circumstances, the patient’s consent and “the circumstances at the time of the operation right in the operating room of which I know nothing.” The only circumstance that appeared in the operating room which was not previously known to the defendant was that the entire breast was involved with small bloody tumors and masses. But the jury could well have deduced from the defendant’s testimony that this condition did not appear until he had already made his incision -for the removal of the breast, and so could not have been one of the factors inducing such removal.
Reno, Los Angeles, San Francisco, Palo Alto, Salt Lake City— to name just a few. Here it should be noted again that the office examination was made August 12, 1950 and the operation performed August 15, 1950.
Lester Adelson. M.D., in “Physician in the Courtroom” (The Press of Western Reserve Univ., 1954).