797 P.2d 1042 | Or. Ct. App. | 1990
In this medical malpractice action, defendants Dr. Petty and Gynecology Clinic, P.C., appeal from a judgment on a jury verdict awarding damages to plaintiff for injuries that she allegedly suffered as a result of surgery performed by Petty.
The surgery in question was performed on November 30,1981, when the plaintiff was 31 years old. When she was 11 years old, she began to menstruate, and she experienced frequent menstrual cramping. About 1968, when she was 18 years old, she began to have excessive hair growth on her face. At that time, she also began to suffer from abdominal pain and was diagnosed as having a spastic colon. In 1973, she consulted a gynecologist regarding her menstrual irregularity and abdominal pain. In 1975, she was referred to the Oregon Health Sciences University (OHSU). From 1975 through 1980, she took birth control pills, which, in high dosages, ameliorated her pain symptoms; however, she had bad side effects and discontinued taking the pills. In 1977, physicians at OHSU performed a laparoscopy
Plaintiff continued to have pelvic and abdominal
Plaintiff saw defendant on November 10, 1981. He took her history and examined her; he also spoke to Cook, but did not obtain or review her medical records. The history and the physical examination noted three problems: pelvic pain, chronic constipation and PCOD, with increasing hirsutism. Defendant recommended a laparotomy — exploratory abdominal surgery — and obtained plaintiffs consent to remove any organs if he found sufficient pathology. He knew, from the time of the initial examination, that he probably would perform a total hysterectomy and a bilateral salpingo-oophorec-tomy (TAH/BSO),
During the laparotomy, defendant performed a TAH/BSO and also removed plaintiffs appendix. He concluded that the abdominal fibrosis and scarring that he observed had probably been caused by a past episode of pelvic inflammatory disease, probably of venereal origin. The pathology report demonstrated that the reproductive organs were normal, with the exception of mild to moderate fibrous adhesions on the outer surface of the fallopian tubes and mild fibrous cysts in one ovary; also, the appendix was chronically inflamed.
Pain recurred about two months after the surgery
Defendant testified that TAH/BSO is not appropriate for PCOD. He said that he operated only to relieve her chronic pain. He submitted evidence that a TAH/BSO is an appropriate surgical treatment for chronic intractable pelvic pain, which may be caused by scarring and adhesions in the pelvic area. At trial, he described her pain as “incapacitating,” a description he had not used in his initial examination report. He also described her scarring as “severe,” the fallopian tubes as “fixed” to other pelvic structures and the pelvic anatomy as “distorted”; however, those findings are not included in his report generated during the surgery. Before the surgery, he had discussed with plaintiff the possibility of doing a wedge resection, a procedure used only for relieving PCOD symptoms. He denied that plaintiff had instructed him to leave her ovaries if they were normal but admitted that her ovaries showed no pathology.
Plaintiffs contention throughout the trial was that the surgery was medically unnecessary and inappropriate. She contends that she had PCOD, which caused the pain, that there were medical alternatives to surgery for treatment of PCOD and that, if surgery had been indicated, the appropriate operation would have been only a laparoscopy. She contends that Cook had recommended the TAH/BSO to defendant to correct the hormonal problems that accompanied the PCOD and that defendant performed it for that purpose.
Defendant’s first three assignments of error concern the trial court’s rulings on his objections to the filing of the Sixth Amended Complaint and testimony given by two of plaintiffs expert witnesses. Assignments 4 through 8 concern five allegations of negligence submitted to the jury, which
Defendant claims that
“the rule in Oregon has always been that when any one of several allegations of negligence which have been submitted to the jury is not supported by evidence, and the defendant has called that fact to the court’s attention by an appropriate motion, a general verdict cannot stand unless the court can somehow affirmatively determine that the erroneous submission of the unsupported theory was not prejudicial.”
Defendant argues that, if any of the allegations submitted to the jury were not supported by evidence, he is entitled to a new trial.
Because the jury found for plaintiff, we give her the benefit of all evidence in her favor and all inferences that may
Defendant argues that plaintiff did not produce evidence that failure to review the records was a cause in fact of any harm to her. To support allegation number 6, see note 6, supra, he contends, plaintiff would have had to produce evidence showing that, in the records, defendant would have found specific information that he had not otherwise obtained and, through expert testimony, prove that that information would or should have influenced his decision to recommend surgery.
Plaintiffs expert, Cotterell, testified that failure to review plaintiffs medical records from OHSU before performing surgery breached the standard of care. He also testified that the TAH/BSO was inappropriate, in view of plaintiffs medical history, defendant’s recorded observations during surgery and the pathology report on the removed organs. Another expert, Dr. Parker, also said that it was below the standard of care not to look at the patient’s medical records. The medical records were in evidence and contained a medical diagnosis that plaintiff was a virgin. They also contained the findings from the 1977 laparoscopy. Defendant testified that he suspected endometriosis as the source of plaintiffs pain but that he did not know that the 1977 laparoscopy had shown no evidence of endometriosis. He also said that he thought that plaintiff had most likely suffered a venereal infection, not knowing that she had not been sexually active. Dr. Goetsch, one of defendant’s experts, testified that whether a patient is sexually active should be taken into consideration by the surgeon in this kind of case.
Defendant’s argument is similar to the argument made in Wagner v. Kaiser Foundation Hospitals, supra. In that case, the plaintiff had alleged that the defendants had unreasonably failed to monitor his respiration, which resulted in brain damage. The defendants argued that that allegation should have been stricken, because the evidence consisted only of negative evidence of failure to chart and testimony that the medications given could cause depressed respiration. They claimed that, because there was no evidence that the plaintiffs breathing actually was slowed or that the defendants did not adequately monitor his breathing, the allegation was improperly submitted to the jury. The court rejected that argument and held that the correct evidentiary standard is “whether affirmative indirect or circumstantial evidence was offered so as to provide a basis from which the jury could properly draw an inference.” 285 Or at 89. Here, defendant argues that the challenged allegation could only be supported by expert testimony stating that a specific piece of information contained in the medical records would have caused him not to recommend surgery or perform the TAH/BSO. That is wrong. Proof of causation in a medical malpractice case may be circumstantial. Mayor v. Dowsett, 240 Or 196, 211, 400 P2d 234 (1965). Medical experts testified that, with the information contained in plaintiffs records, defendant should not have recommended a laparotomy and, given his observations made during surgery, he should not have performed a TAH/ BSO. The jury could properly have drawn the inference that, had he known that no endometriosis had been found four years earlier, he would not have recommended a laparotomy or that, if he had known that she was a virgin, he would not have
In challenging allegations 1 and 2, see note 6, supra, defendant argues that there was no evidence that he recommended or performed a total hysterectomy for the primary purpose of correcting or controlling plaintiffs hormonal imbalance. His position is that the primary reason for the surgery was relief of the pain. He contends that there was no evidence that it would have been negligent for him to consider the hormonal problems in addition to the pain when recommending and performing surgery. He claims that, because no one testified that he would have performed a TAH/BSO had there not been pelvic pain, the allegations were unsupported by any evidence.
Plaintiff argues that neither of the allegations asserts that defendant was negligent in recommending and performing the surgery “solely” or even “primarily” for correction and control of hormonal imbalance. Her contention is that hormonal imbalance should not have played any part in the surgical decision, alone or in combination with other reasons, and that she submitted evidence that it was done for that reason, which was conduct below the standard of care.
Defendant’s reason for performing the TAH/BSO was a question of fact for the jury to determine. He testified that it was only done for plaintiffs pelvic pain. He claims that her pain and her hormonal imbalance were two different conditions and that he operated and performed a total hysterectomy to resolve her pain. Plaintiffs medical records, however, contained evidence to the contrary. The history and physical examination record made by defendant before surgery indicated that her problems were pelvic pain, constipation and PCOD with increasing hirsutism. The records also indicated that Cook thought that removal of her fallopian tubes and ovaries would be useful to control the hirsutism. The records also contain defendant’s own impressions of plaintiffs problems as possibly secondary to PCOD, that endometriosis was
On plaintiffs admission to the hospital, defendant recorded his admission diagnosis as chronic pelvic pain and increasing hirsutism. The post-surgery pathology report indicated that defendant’s pre-operative diagnosis was hirsutism and a possible androgenizing ovarian tumor. Additionally, Cook, who consulted with defendant before surgery, later recorded that plaintiff had had a TAH/BSO for PCOD. In addition, two medical experts gave their opinions, on the basis of those records, that the surgery was performed to correct plaintiffs hormonal imbalance. With that evidence, the jury could have disbelieved defendant and could have concluded that he removed her reproductive organs to control her hormonal imbalance. If it had concluded that, the jury could have then concluded that he had breached the standard of care.
Defendant objects to allegation 3, see note 6, supra, for two reasons. First, he claims that the only evidence supporting the allegation is testimony by Vaitukaitis,
Defendant also argues that there was a lack of proof that his failure to perform a laparoscopy affected the course of plaintiffs treatment.
The allegation is troublesome, in part because of its late appearance in the pleadings during the trial and in part because it is premised on plaintiffs other allegation that defendant was negligent in performing a TAH/BSO. Nonetheless, on review of a denial of a motion to strike the allegation, we conclude that there was some evidence to support it, and the trial court did not commit reversible error in permitting it to go to the jury.
Defendant argues that plaintiff failed to prove allegation 7, see note 6, supra, that he did not satisfy the physician’s duty to obtain informed consent to surgery. He contends that plaintiffs uncontroverted testimony stated that
Plaintiff did not claim that the warnings and advice to her were inadequate and negligent apart from the duty to obtain her informed consent or that she asked defendant to discuss those matters in more detail and that he failed to do so. She argues that expert testimony was sufficient about various alternative treatments to prove what defendant should have done before radical surgery was undertaken. There was also evidence that it was below the applicable standard of care for defendant not to tell plaintiff about those alternative treatments.
ORS 677.097
Because we cannot tell whether the verdict was based on that unsupported allegation or conclude that submitting it to the jury did not prejudice defendant, the case must be remanded for a new trial. Whinston v. Kaiser Foundation Hospital, supra, 309 Or at 359.
Defendant’s first assignment of error is that the trial court improperly overruled his objections to plaintiffs filing of the Sixth Amended Complaint, which, he argues, went beyond conforming to the evidence and contained new allegations of negligence. We do not need to address the assignment, because the pleadings are subject to reconsideration on remand, and any ruling we would make here would be merely advisory, at best.
Defendant’s second and third assignments allege that the trial court erroneously admitted testimony by two experts who, he contends, only gave their personal opinions about why defendant performed the surgery.
Plaintiff claims that the experts’ testimony was necessary to explain the medical records, which, she argues, were beyond the realm of everyday experience. She distinguishes this case from those cited by defendant, because they involved expert opinions directly concerning causation, which the testimony here did not do. Rather, she contends, both parties presented medical experts who reviewed and interpreted the records and then expressed their opinions as to the reasons for the surgery. Her experts’ testimony did not comment on defendant’s credibility, and neither expert directly expressed an opinion as to whether defendant was lying or telling the truth concerning why he performed the surgery.
Expert testimony is admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue * * OEC 702. Whether or not defendant considered plaintiffs hormonal condition in deciding whether to do the surgery or to perform the TAH/BSO was a disputed fact issue for the jury to decide. After determining whether defendant considered PCOD, in whole or in part, when deciding to operate, the jury then had to determine whether that was negligent conduct and whether, if it was, it caused plaintiff injury.
Arguably, the jury itself would have been capable of reading the medical records and concluding whom to believe
The testimony also was not beyond the limits of OEC 704. There was no direct opinion, sought or given, about the credibility of defendant or his witnesses. See State v. Padilla, 74 Or App 676, 679, 704 P2d 524 (1985); State v. Munro, 68 Or App 63, 66, 680 P2d 708, rev den 297 Or 459 (1984). The experts’ testimony was not merely opinions about the consequence of the disputed facts, and it did not usurp the jury’s function to decide the questions of negligence and causation. See DeRosa v. Kolb, supra, 90 Or App at 551. Contrary to defendant’s argument, the testimony did not tell the jury that defendant was lying or that plaintiff should prevail on the negligence issue. It was evidence on the factual question of whether PCOD entered into defendant’s judgment process.
Reversed and remanded.
The case originally was brought against Petty, his corporate clinic, Dr. George Robie, Dr. David Cook and the State of Oregon. The jury absolved Robie of any liability for plaintiffs damages. After filing a notice of appeal, Cook and the state dismissed that appeal. Petty and his corporation are the only appellants and will be referred to as “defendant” in this opinion.
A laparoscopy is an operation that allows a visualization and examination of the abdominal cavity by the insertion of an instrument through a small incision just below the navel.
Endometriosis is a scarring of the reproductive and abdominal organs associated with abnormal periodic shedding of the lining of the uterus.
Polycystic ovarian disease, also known as Stein-Levanthal Syndrome or scle-rocystic ovaries, results from abnormal stimulation of ovaries or the adrenal gland by hormones created by the pituitary gland. The disease commonly causes excess facial hair, also called hirsutism, male-pattern balding and male-pattern weight gain.
A TAH/BSO involves removal of the uterus, the ovaries and the fallopian tubes.
The seven allegations of negligence submitted to the jury are:
“1. In recommending a TAH/BSO to correct or control hormonal balance.
“2. In performing a TAH/BSO to correct or control hormonal imbalance.
“3. In performing a laparotomy when defendant Petty knew or should have known that a laparoscopy was a more appropriate surgical procedure.
“4. In performing a TAH/BSO when defendant knew or should have known that removal of both ovaries, both fallopian tubes and plaintiffs uterus was not appropriate.
“5. In removing one or both ovaries when defendant knew or should have known that plaintiff wanted her ovaries retained if they appeared normal.
“6. In failing to obtain or review plaintiff’s medical records before recommending and performing a TAH/BSO.
“7. In failing to advise and warn plaintiff of the material risks, possible consequences and complications involved in proceeding with surgery, and alternatives to such surgical treatment when defendant knew or reasonably should have known of such risks, consequences and complications of the surgical treatment and the alternatives thereto.”
The five allegations that defendant challenges are emphasized.
Defendant properly preserved the assignments of error by motions to strike individual allegations of negligence from both the Fifth Amended Complaint and the Sixth Amended Complaint. See Whinston v. Kaiser Foundation Hospital, 309 Or 350, 359, 788 P2d 428 (1990).
Defendant argues that there was evidence that inflammatory pelvic disease can result from other than sexually transmitted sources. His argument is, in effect, that, because of the contrary evidence, the jury could not have found that he would have made a different decision. However, the jury was not required to believe that evidence and could have concluded to the contrary on the basis of other evidence.
This is the relevant part of her testimony:
“Q. Dr. Vaitukaitis, do you have an opinion as to whether or not Dr. Petty breached the standard of care in performing a total abdominal hysterectomy and bilateral salpingo-oophorectomy in [sic] Carroll Zacher?
“A. Yes.
“Q. And what is your opinion?
“A. My opinion is that based on the operative description of Dr. Petty there was no significant pathology described, gross pathology, prior to his undertaking the — undertaking the hysterectomy and bilateral salpingo-oophorectomy.
“Q. And what diagnostic tests in your opinion should have been undertaken?
“A. In my opinion Dr. Petty should have initially undertaken a laparoscopy to try to ascertain whether there was any significant intra-abdominal pathology or pelvic pathology.
“Q. And if he had done so, what information do you believe that a laparoscopy would have revealed?
“A. For practice [sic] purposes the same findings as in 1977, at the time of laparoscopy, except that the sclerocystic ovaries would not have been apparent, because with the prolonged oral contraceptive therapy the ovarian capsule was not markedly thickened.”
Defendant concedes that he did not raise this argument in his motion to strike the allegation at trial. However, his objection was to the sufficiency of the evidence in support of the entire claim; so we will address this argument. But see ORAP 5.45(2); Leiser v. Sparkman, 281 Or 119, 122, 573 P2d 1247 (1978).
ORS 677.097 provides, in part:
“(1) In order to obtain the informed consent of a patient, a physician or podiatrist shall explain the following:
“(a) In general terms the procedure or treatment to be undertaken;
“(b) That there may be alternative procedures or methods of treatment, if any; and
“(c) That there are risks, if any, to the procedure or treatment.
“(2) After giving the explanation specified in subsection (1) of this section, the physician or podiatrist shall ask the patient if the patient wants a more detailed explanation. If the patient requests further explanation, the physician or podiatrist shall disclose in substantial detail the procedure, the viable alternatives and the material risks unless to do so would be materially detrimental to the patient.”
Vaitukaitis testified:
“Q Do you have an opinion based upon a reasonable degree of medical probability for what purpose this surgery was done in 1981?
(<‡*‡**
“A My opinion is that based on the note of Dr. Petty in which he specifically — Dr. Cook, rather, that specifically stated that the surgery was done for treatment of polycystic ovary syndrome based on the initial item, point three in the admission history of Dr. Petty, that this was following through with treating the patient for polycystic ovary syndrome.”
Parker said:
“Q Now, Dr. Parker, having reviewed the medical records, the depositions that you previously described, do you have an opinion regarding the basis upon which Carroll Zacher’s surgery was done?
U* * * * *
“A In reference to Dr. Petty * * *
<<* * * * *
“So really there are several reasons that are documented in the chart why this patient had surgery, one was hirsutism and polycystic ovaries, two is her pain, three is the elevation of prolactin, four was exploratory surgery to exclude endo-metriosis. These are the reasons why this patient underwent that type of surgery.”
OEC 704 provides:
“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
“[T]here is no bright line separating issues within the comprehension of the jurors from those that are not.” State v. Middleton, supra, 294 Or at 437.