Shetter v. Rochelle

Citation2 Ariz.App. 358,409 P.2d 74
Decision Date17 December 1965
Docket NumberNo. 2,CA-CIV,2
PartiesGeorge A. SHETTER, Appellant, v. Louise P. ROCHELLE, Appellee. * 95.
CourtCourt of Appeals of Arizona

Chandler, Tullar, Udall & Richmond, by Robert S. Tullar, Tucson, for appellant.

Arthur W. Vance, Jr., Tucson, for appellee.

MOLLOY, Judge.

This is an appeal from a judgment rendered in an action by a patient against a doctor for injuries received from an operation in which a cataract was surgically removed from the right eye of the patient.

The complaint sets up three causes of action. The first count is in negligence, the second count alleges that the defendant-surgeon warranted that the operation would turn out successfully and the third count alleges that the defendant failed to warn the plaintiff of any possible bad results from the operation, and '* * * that this misconduct was negligent and wrongful and therefore any consent which the plaintiff may have given is vitiated or nullified.'

The court directed a verdict in favor of the defendant on the negligence count at the close of the evidence, and submitted the theory of warranty to the jury, which found against the plaintiff on this issue. A judgment was rendered in favor of the plaintiff and against the defendant on count three in the sum of $10,000.00 and this appeal is from that judgment.

In many respects the evidence is undisputed. Conflicts in the evidence mainly concern what the defendant told or did not tell the plaintiff prior to the operation. Approximately two years before the cataract operation was performed by the defendant, the plaintiff went to the defendant who is a practicing ophthalmologist of Tucson, Arizona, for an eye examination. At this time the plaintiff had some concern about the cataracts, because there was a history of cataracts in her family. There were no cataracts found by the doctor at this time but approximately six months before the operation in question, another examination by the defendant-doctor disclosed bilateral, cortical, pre-senile cataracts. The testimony indicated that a cataract is an opacity in the lens of the eye and is not a separate growth, but is caused by the tissue of the lens itself or the thin membrane capsule within which it is contained becoming opaque. That it is not an uncommon malady is demonstrated by the fact that both the defendant-doctor and another ophthalmologist called as a witness in the case testified that they were each performing approximately eighty to one hundred such operations per year.

The plaintiff testified that the defendant described the operation as '* * * very simple * * *,' that he told her that there was '* * * no need to worry about it * * *,' that she had an essentially healthy eye and that '* * * there was no reason in the world * * *' why she should not '* * * get along fine and have that 20/20 vision and good results,' that '* * * all of his patients had recovered and gotten along so well,' and that the defendant promised her that she would have 20/20 vision after the operation. (This last contention by the plaintiff was rejected by jury verdict.) The plaintiff further testified that she was told that the operation would have to be performed under general anesthesia, though the plaintiff had requested only a local anesthesia, and that it would take between eight months to one year for the operations of both eyes and the adjustment from the operations. She testified that the operation was explained to her by using a model of an eye in the defendant's office.

There was no contention below nor on appeal that the plaintiff did not understand what surgical procedures would be attempted. She testified that before talking to the doctor she knew that after such an operation she would not be able to lift anything heavy until the time she left the hospital. The plaintiff testified that the defendant informed her that the first thirty-three hours after the operation were the most important and that there would be a special nurse needed for her during this time. The plaintiff was informed not to bring a tooth-brush to the hospital because she would not be able to tilt her head to brush her teeth after the operation.

The defendant testified that he could not remember specifically what he had told the plaintiff as to the hazards of the proposed operation but that he 'felt' that he had told the plaintiff the same things he usually told his patients--that nine out of ten operations were successful. According to the defendant-doctor better than 95 per cent of such operations are successful. The defendant stated he had told the plaintiff there was no need for her to worry about the operation. Immediately prior to the operation, the defendant testified he warned the plaintiff to remain quiet after the operation and that it was possible to have hemmorrhage, vitreous prolapse, the wound torn open or retinal detachment. He stated no other risks were specifically mentioned.

The defendant's written notes on plaintiff's history indicated that after surgery upon the patient performed by another surgeon some four years before, the plaintiff had become mentally ill, and that he considered the plaintiff to be emotionally unstable but mentally competent. The doctor selected general anesthesia rather than local anesthesia because of his evaluation of the patient's emotional condition. The doctor usually performed such cataract removals under local anesthesia.

On October 27, 1959, defendant operated on the plaintiff's right eye, which was the eye with the most advanced cataract. When she was admitted to the hospital, the plaintiff signed a written consent to '* * * the performing of whatever operation may in the best judgment of the attending physician be deemed necessary or advisable. * * *'

The lens of the plaintiff's right eye was removed by the defendant with a standard surgical procedure, but the results obtained from the operation have been unsatisfactory. Plaintiff testified that while she was still in the hospital, approximately five days after the operation, she experienced a sharp pain in the right eye. When the defendant examined the eye subsequently he informed the plaintiff that her eye had hemorrhaged. Subsequently, during an office examination by the defendant, the plaintiff testified that he told her that her eye had hemorrhaged again.

The defendant testified plaintiff's right eye suffered a prolapse of the iris on each side of the pupil where the incision had been made. After the operation, the defendant cauterized this together using an acid. There was no testimony that there was anything improper about such procedure.

According to the plaintiff, the defendant continued to tell her that vision in her eye would improve, but such vision has remained continuously blurred. In May 1960, the plaintiff went to Dr. Sherwood Burr, another other ophthalmologist in the City of Tucson. At that time the defendant had functional vision in both eyes of '20/200,' which was explained by the doctor as being the ability to read only the big 'E' on the standard eye chart. The deficiency in the plaintiff's left eye was caused by a cataract of the lens and the deficiency in the vision of the right eye was caused by a '* * * dense gray membrane in the pupilary area,' which Dr. Burr diagnosed as being caused by a condensation of the vitreous humor in the anterior portion of the eye. Dr. Burr testified that he had no way of knowing what had caused this condensation and '* * * if prolonged hemorrhage remained in there it could have--could be a contributing factor. * * *' There was no other medical testimony linking this dense gray membrane with any act performed by the defendant.

Dr. Burr testified that he did not know what the standard in the community was insofar as warning patients of the possible bad effects of cataract removal. He stated that one of the important preoperative techniques in all eye surgery is '* * * to get the confidence of your patient so that she is emotionally in good shape to undertake the operation,' and that the percentage of 'failure' in cataract operations of this character is between 1 and 3 per cent. Dr. Burr further testified that secondary glaucoma is one of the recognized risks inherent in this surgery, with '* * * a small percentage * * *'; that there are '* * * a whole page full of complications' possible, but none probable and that if one performs such eye operations long enough, eventually the statistics will '* * * catch up * * *' and an unsuccessful operation will occur.

On November 11, 1960, Dr. Burr operated on the plaintiff's other eye and successfully removed the lens from this eye. As a result of this operation the plaintiff's visible vision in the left eye improved to 20/20 vision with a contract lens. Dr. Burr continued to treat plaintiff's right eye also, and it improved to 20/60 vision. However, in February of 1962, the plaintiff came to Dr. Burr complaining of a pain in her right eye. Examination revealed acute glaucoma, a pathological increase in pressure of the aqueous humor of the eye. Dr. Burr testified that in his opinion the glaucoma which resulted as a 'secondary' glaucoma and probably resulted from the operation performed by the defendant, though there was no way of knowing this. This condition required surgery to relieve the pressure and in the operation performed by Dr. Burr there was some repair work performed upon the prolapsed iris. After the remedial operation, which successfully corrected the glaucoma, the vision in the eye has returned to 20/200. Dr. Burr is doubtful that the eye will improve in the future.

Dr. Emery Royce, an opthalmologist called by the defendant, testified that in eye operations of this type there is approximately a 1 per cent chance of an unsuccessful result with the best of surgeons and that with surgeons of less skill there was a higher percentage of failure.

The three medical doctors who testified agreed that one of the common...

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