Pugsley v. Privette

• Decision Date: 29 February 1980
• Docket Number: No. 771476,771476
• Parties: Louis Q. PUGSLEY v. Phyllis W. PRIVETTE. Record
• Court: Virginia Supreme Court

Page 69

263 S.E.2d 69

220 Va. 892

Louis Q. PUGSLEY v. Phyllis W. PRIVETTE.

Record No. 771476.

Supreme Court of Virginia.

Feb. 29, 1980.

Norman F. Slenker, Arlington (Slenker, Brandt, Jennings & O'Neal, Arlington, on brief), for appellant.

John K. Villa, Washington, D. C. (David Povich, Washington, D. C., Aubrey M. Daniel, III, Williams & Connolly, Washington, D. C., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARMAN, Senior Justice.

In this case a patient complains that she was operated on by a surgeon without her consent, and she seeks to recover damages for the alleged battery.

Phyllis W. Privette, in the first count of a two-count motion for judgment, claimed that she was entitled to recover damages for the alleged negligence of Dr. Louis Q. Pugsley, Dr. William H. Cooper, and the Fairfax Hospital Association in their diagnosis and treatment of her while she was a patient under their care. In the second count she included by reference the allegations of count one and further alleged that an assault and battery was committed on her in that Dr. Pugsley, assisted by Dr. Cooper, operated on her in the Fairfax Hospital after she had been anesthetized by Dr. Heinz Otto Silbersiepe, an anesthesiologist, and Miss Kathleen Marks, a nurse anesthetist, notwithstanding that plaintiff had withdrawn her consent to the surgery performed.

Prior to trial, plaintiff suffered a nonsuit as to Dr. Cooper. At the conclusion of her evidence she was granted a nonsuit as to the hospital on count one. The jury returned a verdict in favor of all remaining defendants on count one and in favor of the hospital, Dr. Silbersiepe, and Miss Marks on count two. It found against Dr. Pugsley on the battery count and assessed plaintiff's damages at $75,000. The verdict was sustained by the trial court, and final judgment was entered.

The issues in this case have been narrowed by the jury's verdict. The defendants denied any liability to the plaintiff for medical malpractice, and the jury found in their favor. This disposed of the issue of alleged negligence by Dr. Pugsley in his treatment of Mrs. Privette. The sole question we consider is the alleged battery on the plaintiff by Dr. Pugsley, and the damages, if any, proximately caused thereby. It is, therefore, unnecessary that we review in detail the voluminous medical testimony given by the numerous doctors who attended the plaintiff.

Mrs. Privette was forty-four years old at the time of trial in February 1977, and resided with her two children in Annandale, Virginia. She is a registered nurse and was employed at the time of the operation by Dr. William Carver Amos, Jr. Her medical history includes an abdominal hysterectomy performed in 1970. Between 1970 and 1974, plaintiff was seen and attended by a number of physicians for various complaints. Among them was Dr. Alan Hall, the chief of surgery at Fairfax Hospital, who performed some minor surgery on plaintiff in 1973, and who was also consulted by Mrs. Privette for pelvic bleeding.

Plaintiff was first seen on February 7, 1974, by Dr. Pugsley, who is an "OB-GYN-Specialist." He recorded her chief complaint as bleeding from the area of the vaginal cuff. Later the defendant examined plaintiff under anesthesia and saw her several times thereafter. On June 13, 1974, plaintiff was advised by defendant that an exploratory laparotomy was necessary because of unexplained bleeding in the vaginal area. An operation was scheduled, postponed, and then rescheduled for August 15, 1974, at which time it was performed in the Fairfax Hospital by Dr. Pugsley, with Dr. Cooper assisting. The anesthesiologist and anesthetist were Dr. Silbersiepe and Miss Marks, respectively.

The surgery involved, among other things, the removal of the patient's ovaries. The operation was complicated by the fact that the ovaries were bound down by endometriosis, a fibrous mass of nonmalignant tissue. It was testified that one of the recognized problems that sometimes attend an operation of the type performed on plaintiff is that the surgeon can unintentionally cut or damage the ureter while removing the ovary, and within five to fifteen days a fistula, or small hole, will develop in the ureter, allowing urine to leak into the body cavity and cause internal infection. The ureter is the tube connecting the kidney with the bladder. This problem is more serious if a patient has only one functioning kidney and if the damaged ureter is attached to that kidney. In this event a fistula in the ureter may also cause acute renal failure since the body will no longer be able to excrete urine. During the course of the operation on Mrs. Privette, the left ureter was cut or damaged. Later it was discovered that Mrs. Privette did in fact have only one functioning kidney, and it was to this kidney that the damaged ureter was attached.

Dr. Myron Paul Berger, one of Mrs. Privette's attending physicians, was called in consultation on August 20, 1974. He testified that "looking at everything, that whichever injury occurred to the ureter occurred at the time of the surgical procedure during the surgery." He also testified that such an injury could occur under the best of surgical procedures and techniques, and he was unable to state within reasonable medical certainty that the injury to plaintiff was accomplished mechanically by Dr. Pugsley or whether it resulted from the natural and inherent insult of the procedure itself.

A great number of specialists in various fields attended the plaintiff during her illness and they, together with others who qualified as experts, testified on the question of negligence, an issue with which we are not now concerned. The jury resolved this issue on conflicting evidence. Important to our decision is plaintiff's condition following the operation by Dr. Pugsley. For the first forty-eight hours after surgery there were no apparent complications. Then Mrs. Privette incurred a pulmonary embolism, and she was placed in intensive care. Thereafter her urinary output decreased, and her condition worsened. Four days after surgery plaintiff was critically ill with a presumptive diagnosis indicating kidney failure. Two days later she began passing urine from the vagina, leading to a further diagnosis that a fistula had developed in the left ureter. Dr. Berger, the attending urologist, found Mrs. Privette in a comatose state and said her condition was "ultracritical," due primarily to sepsis, which is an overwhelming systemic bloodstream infection. A cystoscopy revealed a poorly functioning left kidney and a nonfunctioning right kidney, as well as a fistula in the left ureter near the area of the excised left ovary, causing urine to pass into the vagina. Dr. Barry S. Stauch, who also attended Mrs. Privette, and is a specialist in the field of nephrology, concurred with Dr. Berger that the fistula resulted from trauma induced during surgery performed by the defendant. To enable the fistula to heal, Dr. Berger performed a nephrostomy, diverting the flow of urine through a tube inserted through the patient's side into the kidney, a tube which remained until the first of December 1974.

The attending physicians testified that the plaintiff was very near death at times. She remained comatose and in a critical condition for several weeks, but ultimately improved enough to be discharged from the hospital on October 27, 1974. She returned to the hospital on December 1, 1974, for a post-operative check-up and for the removal of the nephrostomy tube in her side. The attending physician anticipated a short stay but, because of complications, Mrs. Privette was not discharged until December 17, 1974.

We think it unnecessary to detail the prolonged and extensive treatment that followed the August 15, 1974 operation. The evidence established that plaintiff suffered intense pain, discomfort, and physical, mental, and psychological injuries, some of a permanent nature. Mrs. Privette was making approximately $8,000 a year at the time the operation was performed. The testimony shows that for the two years thereafter her income was substantially less and that her earning ability had been adversely affected by her experience. Her medical bills were in excess of $30,000. The critical issue in this case is a factual one, and it is whether Mrs. Privette revoked the consent she gave Dr. Pugsley to perform the exploratory laparotomy on her. ¹ If so, the defendant committed a battery on the plaintiff, and she is entitled to recover the damages that proximately resulted.

Mrs. Privette, who was referred to Dr. Pugsley by Dr. Hall, said that when she was told by the defendant in June 1974 that she needed surgery, she advised him that she wanted Dr. Hall present when the operation was performed. Her explanation was, "Dr. Hall had done surgery on me. And I just wanted nothing taken out that didn't need to be, nor did I want anything put in that was not necessary. Dr. Pugsley is a GYN doctor. And so he knows GYN. But I wanted a surgeon present. And so we discussed this." The plaintiff testified that prior to having the operation scheduled for a definite date in August 1974, she called Dr. Hall's office to determine if he "was going to be there, would not be on vacation or the like," and that after being assured of Dr. Hall's availability she said the surgery was scheduled for August 15, 1974, with Pugsley's secretary. Mrs. Privette testified that after the operation was definitely scheduled, she called Dr. Hall's office and advised the receptionist of the date and time. Plaintiff further said that a week before her operation was to be performed, she saw Dr. Pugsley and "told him at that time that I had set it up with Dr. Hall, and Dr. Hall would be available."

Plaintiff was admitted to the hospital on August 14, 1974, at which time the pre-operative procedures were done. On the morning of August 15, 1974, about 9 a. m., Mrs....