Begin v. Richmond

• Decision Date: 07 October 1988
• Docket Number: No. 85-001,85-001
• Citation: Begin v. Richmond, 150 Vt. 517, 555 A.2d 363 (Vt. 1988)
• Parties: Kenneth A. and Susan A. BEGIN v. Henry G. RICHMOND, M.D.
• Court: Vermont Supreme Court

Page 363

555 A.2d 363

150 Vt. 517

Kenneth A. and Susan A. BEGIN v. Henry G. RICHMOND, M.D.

No. 85-001.

Supreme Court of Vermont.

Oct. 7, 1988.

Motions for Reargument Denied

Nov. 4, 1988.

Gerald A. Harley, Bennington, for plaintiffs-appellees.

John Paul Faignant and William D. Cohen of Miller, Norton & Cleary, Rutland, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MAHADY, JJ.

DOOLEY, Justice.

This medical malpractice case was tried to jury in the Bennington Superior Court in 1984 and resulted in a mistrial because the jury was unable to agree on a verdict. It is here by way of interlocutory appeal by defendant from the decisions of the trial court to deny defendant's motion for a directed verdict made during and after trial; and by way of cross-appeal of the denial of plaintiffs' motion for a directed verdict and the decision of the trial court to disallow certain elements of damages claimed by plaintiffs. We affirm the denial of defendant's directed verdict motion and dismiss plaintiffs' cross-appeal as not properly before us.

The facts of this case are not complex and are stated in the light most favorable to the plaintiffs, since we must review the ruling on the directed verdict motion made by defendant. See Poulin v. Ford Motor Co., 147 Vt. 120, 123, 513 A.2d 1168, 1170 (1986). Plaintiffs are husband and wife who, after having two children, decided to seek medical care on a method of birth control other than the "pill." They went to defendant doctor who discussed with them the various options. The result of that office visit was a decision that defendant would perform a vasectomy on plaintiff, Kenneth Begin. Defendant scheduled the operation for the following month and had plaintiffs sign a form which specified that defendant had explained to plaintiffs the surgical procedure and the possible complications. It also specified that the chances of reversing the vasectomy had been discussed and that plaintiffs had chosen vasectomy with other forms of birth control clearly in mind. Finally, it contained information on post-operative procedures and the risks of failure as follows:

We understand the need for ejaculation specimens to be taken to his office at eight weeks and at eight months, as well as the need to continue an alternative form of contraception until [Dr. Richmond] ... has seen no live sperm remaining in the ejaculation specimen. We understand that there is an approximately one in two hundred chance that the vasectomy operation may not work. If live sperm are persistently found in the ejaculation specimen, the vasectomy will have to be redone. We also understand that there is a chance of live sperm reappearing even after they have disappeared from the eight week specimen. That is possible but is highly unlikely.

Based on this form and the statements of defendant, plaintiffs understood that there was no risk of failure if the eight-month specimen showed no live sperm.

Approximately a month later, defendant performed the vasectomy operation on plaintiff Kenneth Begin. Plaintiffs brought in ejaculation specimens at eight weeks and eight months after the operation. Defendant advised that no live sperm were present after eight weeks but plaintiffs should continue their birth control method. After eight months, plaintiffs returned another specimen and defendant advised that the operation was a 100% success and that Susan Begin could discontinue using birth control pills.

Approximately two and a half years later, Susan Begin became pregnant and tests showed that the vasectomy had "recanalized" so that Kenneth Begin was again ejaculating live sperm. Plaintiffs brought this action alleging that defendant was negligent in failing to warn of the possibility of recanalization after the eighth month following the operation and that they had relied on defendant's statements that the operation was a total success and had discontinued other contraception methods. They sought damages for the expenses connected with the birth and rearing of the child as well as for the cost of sterilization, loss of consortium, pain and suffering connected with the pregnancy and childbirth and emotional distress.

At trial, plaintiffs offered one expert witness, a medical doctor specializing in urology, the specialty area of the defendant. He testified that Kenneth Begin's vasectomy failed because of recanalization and that the standard of care for a urologist in the position of defendant required that plaintiffs be advised that a vasectomy could recanalize at any time. He testified that the birth was caused by the recanalization and finally that defendant's actions fell below the applicable standard of care for physicians in that specialization.

Defendant has preserved here the issue of whether the above facts and testimony make out a case of medical malpractice that should have gone to the jury. He makes a three-part argument on why his directed verdict motion should have been granted:

1. The only possible cause of action made out by the above facts is for medical malpractice based on lack of informed consent.

2. The elements of an informed consent case are governed by 12 V.S.A. § 1909 and plaintiffs do not meet the elements because they failed to show that Kenneth Begin would not have had the vasectomy operation if he knew the omitted facts.

3. Even if this case can be considered a medical malpractice action not based on informed consent, plaintiff has failed to show a connection between the malpractice and the damage by expert testimony as required by 12 V.S.A. § 1908 and this Court's decision in Larson v. Candlish, 144 Vt. 499, 480 A.2d 417 (1984).

Defendant made these arguments to the trial court, which ruled that this was not an "informed consent" case, in part because plaintiffs had not pled that theory. ¹ Thus, the case was charged to the jury as a standard medical malpractice case with the elements set forth in 12 V.S.A. § 1908 and not as an informed consent case with the elements set forth in 12 V.S.A. § 1909.

The elements of medical malpractice are set out in 12 V.S.A. § 1908. Under the statute, the plaintiff in a medical malpractice case must prove three main elements:

(1) The degree of skill or knowledge possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice to the defendant under similar conditions whether within or without the state.

(2) That the defendant lacked the applicable degree of knowledge or skill or failed to exercise the applicable degree of care; and

(3) That as a proximate result of (2), the plaintiff suffered injuries that would not otherwise have been incurred.

These elements are similar to those recognized under the common law in this state. See, e.g., Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 449 A.2d 900 (1982); Domina v. Pratt, 111 Vt. 166, 13 A.2d 198 (1940). Ordinarily, these elements must be proved by expert testimony. See Larson v. Candlish, 144 Vt. 499, 502, 480 A.2d 417, 418 (1984).

Defendant has not contested that where an unplanned conception occurs as a result of the negligence of a doctor, some compensable "injuries" can result within the meaning of 12 V.S.A. § 1908(3), although he has hotly contested what elements of damage are compensable. Such a contest would be unavailing. Almost every court that has considered a wrongful conception case has recognized that liability can exist under traditional malpractice principles. See, e.g., Jackson v. Bumgardner, 318 N.C. 172, 179 n. 2, 347 S.E.2d 743, 747 n. 2 (1986) (providing a survey of cases from other jurisdictions). We see no reason to deviate from this application of our malpractice law to cases such as this.

In this case, plaintiffs' expert witness offered testimony on each of the statutory elements of malpractice. He stated that the standard of care for a urologist in the position of defendant was to inform the patient that a vasectomy can recanalize at any time. He stated that the actions or omissions of the defendant, assuming the testimony of plaintiffs as believed, fell below the applicable standard of care. He testified that the pregnancy in this case was caused by recanalization.

This case is similar to those confronted by courts of other states where sufficient evidence was found to get to the jury on a malpractice claim. In Hackworth v. Hart, 474 S.W.2d 377 (Ky.1971), the defendant doctor performed a vasectomy on the plaintiff and did one sperm count thereafter. Plaintiff's expert witness testified that three tests were standard and accepted practice and were necessary to determine the success or failure of the operation. The court held that this evidence was sufficient to get to the jury on plaintiff's malpractice claim. Similarly in Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977), defendant advised that a sperm count showed that the plaintiff, on whom he had performed a vasectomy, was sterile. The advice was in fact erroneous, and when plaintiff resumed sexual relations with no alternative form of contraception, his wife became pregnant. Plaintiff's action based on negligent post-operative care was upheld. See also Jackson v. Bumgardner, 318 N.C. at 182, 347 S.E.2d at 749 (wrongful conception case recognized for failure to warn that IUD had been removed).

Based on the statutory elements and the above case law, plaintiffs have made a sufficient showing to go to the jury on a medical malpractice theory. Unless the remainder of defendant's claims are valid, the court properly denied the motion for a directed verdict.

Defendant's main response to plaintiffs' case is that it is governed by the informed consent statute and not the general malpractice statute because the informed consent statute covers any claim based on a "failure to disseminate proper information with regard to medical procedures." Defendant misapprehends the nature of the...