Bettigole v. Diener, 223

• Decision Date: 12 July 1956
• Docket Number: No. 223,223
• Citation: 124 A.2d 265,210 Md. 537
• Parties: Neal BETTIGOLE v. Louis DIENER, M. D.
• Court: Maryland Court of Appeals

Page 537

210 Md. 537

124 A.2d 265

Neal BETTIGOLE v. Louis DIENER, M. D.

No. 223.

Court of Appeals of Maryland.

July 12, 1956.

Sidney I. Kellam and Mayer W. Perloff, Baltimore, for appellant.

G. C. A. Anderson, Baltimore (Anderson, Barnes & Coe, Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and DELAPLAINE, HENDERSON and HAMMOND, JJ.

HENDERSON, Judge.

This action was instituted by the appellant for alleged negligence in the performance of an operation by the appellee at Sydenham Hospital on April 28, 1937. At that time the appellant was seven years old. The action was instituted within three years after he became of age. At the conclusion of the plaintiff's case the trial court directed a verdict for the defendant. The only question presented is whether the plaintiff produced legally sufficient evidence of negligence producing the injury.

The operation in question was a right mastoidectomy. The hospital record contained a summary of 'History Notes', signed by Dr. Waghelstein, which showed that the plaintiff was admitted to the hospital on April 1, 1937, with a diagnosis of convalescent chickenpox and scarlet fever. His temperature on admission was 104.6. An X-ray disclosed pneumonia in the upper lobe of his right lung. He had a 'marked purulent discharge from the right ear.' This was determined to be 'beta hemolytic streptococcus', and the discharge did not respond to treatment with sulfanilamide. On the twenty-seventh day in the hospital the mastoidectomy was performed. 'The mastoid was in such a necrotic state that considerable excavation was necessary. During the course of the operation the facial nerve was found. (In an unsigned summary following the 'History Notes', the word 'exposed' is substituted for the word 'found'.) Patient recovered from the operation fairly well and no abnormalities were noted. However, on the following day a fairly marked right facial paralysis was evident. Mastoid wound continued to drain freely even after the patient was given sulphanilamide for a second time. Facial paralysis was not improved at time of discharge', on June 5, 1937.

The declaration in the case alleged that 'during the course of said operation, a facial nerve of the Plaintiff was exposed and negligently severed by the Defendant'. (Italics supplied.)

Dr. Diener was called by the plaintiff. He testified to his extensive professional experience, serving upon the staff of seven Baltimore hospitals, and specializing in ear, nose and throat cases. He stated that, presumably, the hospital notes were made by the resident. He testified that if a facial nerve were severed, there would be an 'immediate paralysis'. While admitting that he had forgotten most of the details after the lapse of eighteen years, he stated positively that there was no nerve injury at the time of the operation. The record showed that the paralysis did not appear until eighteen hours later. Dr. Diener was shown a letter he had written to the plaintiff's father in New York, dated September 1, 1937. In that letter he agreed that another operation should be performed, 'mainly on account of the nerve involvement', as recommended by New York doctors. The letter also stated: 'Relative to the time of the occurrence of the nerve injury we have repeatedly told you the same was not noticed until the next day.' Asked to explain what he meant by this sentence, he testified: 'I mean just as it says, there was no evidence of any injury until the next day. If this boy's facial nerve had been injured or severed at the time of the operation he would have shown an immediate nerve paralysis. * * * It is impossible for this child to have had a nerve injury at the time of the operation.'

The witness was then shown a medical textbook on otolaryngology, published in 1955, and asked to comment upon a passage under the heading of 'Accidental Injury', as follows: 'A complete facial paralysis appearing immediately after the anesthetic has worn off usually means the nerve has been damaged by surgery. It may, however, be that the facial canal has merely been opened and the nerve compressed by too tight packing, although in this case the paralysis usually appears later.' The witness agreed that a nerve could be compressed by too tight packing. He testified that when the paralysis was first noted, he redressed the wound, taking all the packs out, as a 'precaution'. He emphatically denied that the wound was packed too tight. He denied that he opened the facial canal. 'I don't accept that I packed it too tight and I don't accept the fact that the facial canal was open and the nerve exposed. If I said the nerve was exposed and I packed it then I would say the nerve was exposed and I probably packed it too tight. I don't say the nerve was exposed, but just as a surgical precaution of a thing that could possibly happen, when I was notified I went up there to remove this boy's packing because I knew that could happen from pressure and things like that.' There is always some calculated risk of injury before a nerve is located. Once it is found or exposed it would be negligent for a surgeon to cut it. The nerve is contained in the facial canal.

Dr. Loch, called as an...