Baxley v. Rosenblum

• Citation: 303 S.C. 340,400 S.E.2d 502
• Decision Date: 12 November 1990
• Docket Number: No. 1588,1588
• Court: Court of Appeals of South Carolina
• Parties: David W. BAXLEY, Jr. and June Baxley, Appellants, v. Raymond ROSENBLUM, M.D., Fletcher C. Derrick, Jr., M.D. and William C. Carter, III, M.D., d/b/a Rosenblum, Derrick & Carter, and Raymond Rosenblum, Individually, Respondents. . Heard

Page 502

400 S.E.2d 502

303 S.C. 340

David W. BAXLEY, Jr. and June Baxley, Appellants, v. Raymond ROSENBLUM, M.D., Fletcher C. Derrick, Jr., M.D. and William C. Carter, III, M.D., d/b/a Rosenblum, Derrick & Carter, and Raymond Rosenblum, Individually, Respondents.

No. 1588.

Court of Appeals of South Carolina.

Heard Nov. 12, 1990.

Decided Jan. 7, 1991.

George J. Morris, Charleston, for appellants.

J. Rutledge Young, Jr., and Stephen P. Groves, Young, Clement, Rivers & Tisdale, Charleston, for respondents.

BELL, Judge:

This is an action in negligence for medical malpractice. David W. Baxley, Jr., himself a medical doctor, sued Raymond Rosenblum, Fletcher C. Derrick, Jr., and William C. Carter, III, all specialists in urology, who practice together as a partnership. Baxley sought damages for the defendants' alleged failure to diagnose and treat his cancer in a timely and proper manner. June Baxley, his wife, also sued for loss of consortium. The defendants answered denying any negligence on their part. They also raised the affirmative defenses of contributory negligence and assumption of the risk. The case was tried to a jury. At the close of Baxley's evidence, the court granted Carter's motion for a directed verdict. Baxley does not appeal that order. After all the evidence was presented, the trial judge sent the case to the jury for a general verdict. The jury found for Rosenblum and Derrick. Baxley appeals. We affirm.

Baxley and Rosenblum were medical school classmates. Baxley is a general practitioner; Rosenblum is a specialist in urology. Baxley became Rosenblum's patient in June, 1964.

In June, 1980, Baxley experienced painful, bloody urination. He consulted Rosenblum, who conducted a cytoscopic examination by inserting a tube through his urethra into his bladder. By observation, Rosenblum discovered an inflammation of the prostate urethral vesicle neck. He treated Baxley with medication. A follow up examination two weeks later showed a complete resolution of the problem. Baxley had no further symptoms after this treatment.

Baxley continued to consult Rosenblum for other routine matters until October 31, 1984, when he came to see him after experiencing two days of bloody urine. Rosenblum performed a cytoscopic examination which revealed a lesion on the right lateral wall of Baxley's bladder. He hospitalized Baxley for several tests, including multiple biopsies of the bladder. Based on Baxley's history of bloody urine and earlier cytoscopic examinations, Rosenblum's preoperative diagnosis was possible cancer of the bladder.

Rosenblum performed the biopsies and submitted them to the hospital pathology laboratory for examination. The pathology report diagnosed Baxley's condition as infection and inflammation of the bladder. The report indicated there was no evidence of cell abnormality, cancer, or any precancerous condition.

During the next two years, Baxley consulted Rosenblum from time to time when his symptoms recurred. On January 20, 1986, Baxley passed a strawberry sized blood clot in his urine. He took it on his own to a hospital pathology laboratory for examination. The pathology report indicated "degenerative inflammatory cells." There was no indication of cancer. Baxley did not report this incident to Rosenblum.

On April 25, 1986, Baxley saw Rosenblum after an episode of bloody urine. He reported he had experienced several episodes since he last saw Rosenblum. Rosenblum cytoscoped Baxley, observing an inflammatory area on the posterior wall of the bladder. A rectal examination revealed a severely tender prostate. Rosenblum told Baxley he thought he was having recurrent acute infection of the prostate with secondary infection of the bladder. He told Baxley to arrange his schedule so that he could go to the hospital for prostate surgery. Baxley understood he would continue to have problems if he did not have the surgery.

It is undisputed that Baxley refused to follow Rosenblum's advice. As a result, he continued to have painful, bloody urination. Starting in January, 1987, his symptoms became more frequent and did not respond to self treatment. Baxley did not report this change to Rosenblum. Instead, he waited almost a year from the time Rosenblum had ordered prostate surgery and then went to see Dr. Robert Pringle, a family practitioner and occupational medical specialist. He saw Pringle on five occasions from March 17, 1987, to May 5, 1987. During this period Baxley's symptoms worsened and failed to respond to Pringle's treatment. Urinalysis done for Pringle was negative, as it had been with Rosenblum. In May, Pringle referred Baxley to Dr. John Manos at the Medical University of South Carolina for further tests. Dr. Manos had cytology tests performed. The cytopathologist gave a diagnosis of "urine--transitional cell carcinoma."

After this diagnosis, Baxley returned to Rosenblum on May 19, 1987, over a year after he had last consulted him. Rosenblum ordered a new cytology test which indicated "suspicious for malignancy." He then ordered random multiple biopsies, which were performed on May 26, 1987, and revealed multifocal carcinoma in situ. (Carcinoma in situ is an early stage of cancer limited to the top layers of the epithelium, the mucosa-like membrane that lines the inside of bodily organs and cavities.) There was evidence that Baxley's cancer did not occur until early 1987, a few months before he returned to Rosenblum in May.

Rosenblum conferred with Baxley and his wife. He first discussed the different forms of treatment available. He told Baxley the disease could be treated chemically, but he did not recommend it. He told him it could be treated with x-ray, but that was notoriously poor for carcinoma in situ. He told him the treatment of choice was total removal of the bladder, prostate, and seminal vesicles, which he recommended. Baxley knew what the surgery involved because he and Rosenblum had treated mutual patients who underwent the procedure.

Rosenblum and Baxley also discussed removing the urethra. Rosenblum stated there were two schools of thought: one is to remove the urethra totally and the other is not to remove it. He informed Baxley of the risks attendant to each alternative. Removing the bladder and prostate, but not the urethra would probably cause impotence, but there was a chance impotence would not occur. Removal of the bladder, the prostate, and the urethra would almost certainly lead to impotence. In Rosenblum's experience, one hundred percent of those who had the urethra removed were impotent. He then explained that if the urethra was not removed, he would test frozen sections of the urethra to make sure there was no cancer in it. He also explained that another reason to leave the urethra was to avoid complications from the surgery. To remove the urethra it is necessary to put the patient up in stirrups much like a woman who is delivering a baby. The use of stirrups increases the chances of a pulmonary embolism. Removing the urethra later at a second operation decreases the complication rate.

Because Baxley expressed concern about the risk of impotence, Rosenblum also told him that if impotence resulted, it could be corrected by a penile prosthesis. Baxley was familiar with this procedure. Neither during this conference nor prior to surgery did Baxley or his wife express any objection to leaving the urethra in. Baxley executed a form acknowledging that he understood the diagnosis, the surgical procedure, the risks and complications which might occur and that he consented to the surgery.

Rosenblum, assisted by Derrick, performed the surgery on May 29, 1987. He removed the bladder, the prostate, and the seminal vesicles. He did not remove the urethra, as the pathology report indicated it was not cancerous. The report did note the presence of dysplasia (abnormal cell formation).

In connection with removing the bladder, Rosenblum performed a surgical procedure called an ileal conduit to reroute the urine. An ileal conduit entails severing the small intestines and putting them back together. Rosenblum did not insert a nasogastric tube during the operation. After the operation, when Baxley complained of abdominal pain, Rosenblum ordered insertion of the tube on June 1, 1987. Baxley inserted the tube on his own when he became dissatisfied with the initial insertion by a nurse. Thereafter, he pulled out the tube on his own because it irritated his nose. Rosenblum had not ordered the tube removed.

On November 11, 1987, Baxley underwent surgery to have adhesions on which scar tissue had formed removed from his small intestines because they were causing an obstruction. Adhesions are an accepted complication of an ileal conduit. Dr. Rittenbury at the Medical University performed the surgery.

In December, 1987, routine medical follow up of Baxley's surgeries revealed cancer in his urethra. A Dr. Kellett removed the urethra. From the time his urethra was removed until the time of trial, Baxley was free from cancer.

Baxley's theory at trial was that Rosenblum failed to diagnose and treat him correctly. He claimed that correct diagnosis would have revealed the cancer earlier so that it could be treated chemically rather than surgically. He also claimed failure to remove the urethra in May, 1987, caused him to undergo unnecessary surgery in December, 1987. Finally, he claimed the ileal conduit was improperly done without insertion of a nasogastric tube during or after surgery, causing unnecessary stress on the bowel which had to be corrected by surgery in November, 1987.

Baxley raises three main issues on appeal: (1) did the court err in refusing to direct a verdict in his favor on the defenses of contributory negligence and assumption of the risk; (2) did the court err in denying Baxley's motion to amend his pleadings to raise the issue of "informed consent" based on evidence introduced during the trial; and (3) did the court err in refusing Baxley's ...