Alessio v. Crook
| Decision Date | 24 February 1982 |
| Parties | Charles ALESSIO and wife, Waldine Iris Alessio, Plaintiffs-Appellants, v. Jerrall P. CROOK, M.D., and Baptist Hospital, Inc., Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
Randall L. Kinnard, Nashville, Tenn., for plaintiffs-appellants.
Thomas A. Higgins, Noel F. Stahl, Scott Todd Price, Cornelius, Collins, Higgins & White, Nashville, Tenn., for defendant-appellee Jerrall P. Crook, M.D.
Thomas W. Schlater, Brenda R. Measells, Nashville, Tenn., for defendant-appellee Baptist Hosp., Inc.
This is a medical malpractice suit brought by the plaintiffs Charles Alessio and wife, Waldine Alessio, against the defendant physician Jerrall P. Crook, alleging that Dr. Crook had been guilty of negligence that caused plaintiff Charles Alessio (hereafter plaintiff) to have his entire right lung surgically removed. Subsequently, an amended complaint was filed naming Baptist Hospital, Inc. (Baptist) a party defendant and alleging that Baptist was negligent in failing to cause an x-ray report to be placed in plaintiff's chart prior to his discharge from the hospital and in failing to cause Dr. Crook to timely complete a discharge summary on plaintiff.
Both defendants answered denying that they were guilty of any wrongful conduct or violated any standard of care.
The case was tried before a jury and the Honorable Hamilton Gayden, Circuit Judge. At the conclusion of plaintiffs' proof, Baptist's motion for a directed verdict was granted and the case dismissed as to Baptist. Dr. Crook's motion for a directed verdict was denied.
At the conclusion of all the proof and argument of counsel, the Trial Judge instructed the jury and, after due deliberation, the jury returned and announced that it had found the issues in favor of Dr. Crook and against plaintiffs.
Judgment was entered for Dr. Crook on the verdict. Thereafter plaintiffs' motion for a new trial as to both defendants was denied and this appeal ensued.
The facts are as follows: Plaintiff was born November 27, 1920, and he and his wife, plaintiff Waldine Alessio, reside in Nashville, Tennessee.
Plaintiff had a tonsillectomy in 1932, underwent a left-side hernia repair in 1959, a hemorrhoidectomy in 1970, and a right-side hernia repair in 1978.
In June, 1969, he experienced a throat problem and saw Dr. J. Thomas Bryan. On examination it was found that plaintiff had a generalized ulceration of the uvula of his palate which was biopsied and proven to be malignant squamous cell carcinoma. This oropharyngeal malignacy indicated cancer of the palate extending onto the left tonsil.
From June 16, 1969 through August 21, 1969, plaintiff was treated by radiation therapy in an attempt to eradicate the tumor. The radiation therapy was not successful and it was necessary for Dr. Bryan to surgically remove a portion of plaintiff's palate.
Plaintiff had no further problems until April, 1978, when he felt what he thought was a blister on the back of his throat. Dr. Bryan performed a biopsy on tissue taken from plaintiff's throat and it showed malignant squamous cell carcinoma.
Dr. Bryan then asked Dr. Crook 1 to look at plaintiff for possible surgery.
Dr. Crook admitted plaintiff to Baptist on April 24, 1978, for surgery to be done on April 25, 1978. Dr. Crook ordered pre-operative tests, including a cardiogram, chest x-rays, and blood tests. The chest x-rays were made in order to evaluate plaintiff's pulmonary function.
The April 24 chest x-ray was read and interpreted by the radiologist who rendered an x-ray report. The radiologist report showed that since a previous x-ray of January 17, 1978, the right hilum (root of the lung) had become slightly more prominent and there was a faint density superimposed over the right lower lung which was not definitely seen on the January 17 x-ray. The radiologist recommended a repeat x-ray with oblique views.
Dr. Crook performed surgery on plaintiff on April 25 by excision of one centimeter of the cancerous tumor from plaintiff's throat. Several large blood vessels were encountered during the operation and were ligated. The tumor was successfully removed.
Dr. Crook on that same day dictated a report describing plaintiff's medical history, his physical examination, and an operative report describing the procedure used in removing the tumor from plaintiff's throat.
Dr. Crook visited plaintiff in his hospital room on April 26 in order to assess his post-operative condition and at that time explained to plaintiff that repeat x-rays had been ordered because the radiologist had seen something on the pre-operative x-ray "that he wanted to recheck, that it was probably related to chronic lung disease ...."
Thereafter plaintiff was taken to the radiology department to be x-rayed. At Baptist, when a patient is x-rayed the film is developed as soon as possible. It is then labeled with the patient's name and identification, date, and hospital number. The film is read and interpreted by one of the radiologists who dictates into a recorder his interpretation of the film. A stenographer then transcribes the recording and prepares an x-ray report. The radiologist reviews the report and initials it if he approves. After the report is initialed, it is ready to be filed in the patient's chart.
The goal at Baptist is to review and file the x-ray report in the patient's chart as soon as possible. However, if an x-ray report is not in a patient's chart, the doctor knows that the report can be obtained at the radiology department or by checking with the unit clerk on the patient's floor.
In the instant case plaintiff was taken to the x-ray department on April 26 for the follow-up x-ray. The x-ray was taken and stamped "4:32 P.M." The x-ray was then interpreted and a report was dictated by the radiologist. The report was transcribed by the stenographer and initialed by the radiologist. The x-ray report showed that the oblique views confirmed the presence of consolidation in the right suprahilar area extending anterially into the right middle lobe.
Dr. Crook made his rounds between 7:00 and 8:00 A.M. April 27, 1978, and noticed that plaintiff's April 26 x-ray report was not in plaintiff's chart. While it was Dr. Crook's responsibility, and he so testified, to contact the radiologist or go to the radiology department if he wanted to see the report, he did not do so.
Plaintiff was discharged from the hospital on the morning of April 27 without Dr. Crook ever reviewing the April 26 x-ray report. The x-ray report was put in plaintiff's chart at some point after his discharge and did not come to Dr. Crook's attention until November, 1978.
Dr. Crook admitted at trial that the standard and ordinary acceptable professional practice in Nashville would have been for him to have made an inquiry on April 27 when the x-ray report was not in plaintiff's file chart, to have asked about the report before plaintiff was discharged, and to have gone to radiology and looked at the x-rays if he did not have the report. He admitted that he violated the standard required and expected of him as a medical doctor and that, put in the simpliest terms possible, he was careless.
Plaintiff was discharged from the hospital on April 27 and on May 7, 1978, while convalescing at home, suffered a massive loss of blood through the mouth and nose. Plaintiff was re-admitted to Baptist and came under the care of Dr. Downey, Dr. Crook's partner. Dr. Downey, to stop plaintiff's bleeding, tied off a branch of the carotoid artery. The bleeding was controlled and plaintiff was discharged from Baptist on May 10, 1978.
Separate records are kept at Baptist for each admission. In plaintiff's case there was a separate set of records for plaintiff's April 25 admission under Dr. Crook and the May 7 admission under Dr. Downey. The attending physician for each admission dictates a discharge summary for that particular admission.
Dr. Crook stated that he did not have all the pertinent facts and, therefore, did not undertake to dictate a discharge summary upon plaintiff's discharge. He dictated the discharge summary in November, 1978, for plaintiff's April 25 admission.
A discharge summary is a summation of the pertinent facts for the patient's particular hospitalization and is not generally dictated until after the patient's discharge. There is usually a considerable time lapse between the dictation of the summary and its transcription. In this case the discharge summary dictated by Dr. Crook in November, 1978, was not transcribed until January, 1979.
After plaintiff's discharge from Baptist on May 10, 1978, he continued to see Dr. Crook at his office. Dr. Crook testified that he saw plaintiff several times and, noting his slow recovery, informed plaintiff that he "might need to see his medical doctor."
During subsequent office visits in August and October, 1978, Dr. Crook's examination of plaintiff's throat and neck revealed no adverse findings. Plaintiff still was not feeling well during these visits and was "urged" by Dr. Crook to see his "family doctor." Plaintiff stated that he had already undergone tests and he did not wish to undergo further tests. It was not until Mrs. Alessio insisted that plaintiff see the family doctor and made an appointment for him that plaintiff finally saw Dr. Shmerling.
Dr. Shmerling gave plaintiff a general examination on November 3, 1978, which included a chest x-ray. In reviewing the x-ray, Dr. Shmerling observed an abnormality in the right lower quadrant of plaintiff's lung and informed plaintiff that he was concerned.
Dr. Shmerling determined that plaintiff was last x-rayed in April, 1978. Dr. Shmerling went to Baptist and viewed the April 26 x-ray, making a comparison of it with the November 3 x-ray. Dr. Shmerling saw a shadow that was visible in the right hilar area which was visible...
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