Block v. McVay

• Decision Date: 11 March 1964
• Docket Number: No. 9995,9995
• Citation: 80 S.D. 469,126 N.W.2d 808
• Parties: Hilda BLOCK, Plaintiff and Appellant, v. C. B. McVAY, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 808

126 N.W.2d 808

80 S.D. 469

Hilda BLOCK, Plaintiff and Appellant, v. C. B. McVAY, Defendant and Respondent.

No. 9995.

Supreme Court of South Dakota.

March 11, 1964.

Morgan & Fuller, Mitchell, for plaintiff and appellant.

Louis B. French, Yankton, Everett A. Bogue, Vermillion, for defendant and respondent.

PARKER, Circuit Judge.

This is a malpractice action. Plaintiff has appealed from the judgment and the order of the trial court directing a verdict in favor of the defendant at the close of plaintiff's case. Therefore, in reviewing the evidence on this appeal, we must, without weighing it, decide if there is any substantial credible evidence to support a verdict against the defendant considering it in the light most favorable to the plaintiff. Hansen v. Isaak, 70 S.D. 529, 19 N.W.2d 521; Lohr v. Watson, 68 S.D. 298, 2 N.W.2d 6.

Plaintiff had been a patient of the defendant, Dr. McVay, since 1948. In April, 1959, she was referred to Dr. McVay for examination concerning a gall bladder condition. On April 30, 1959, Dr. McVay examined her at the Sacred Heart Hospital at Yankton, South Dakota. At this time, Dr. McVay advised plaintiff that she should undergo major surgery for removal of her gall bladder. Plaintiff consented to this surgery which was subsequently completed with apparently successful results.

During this examination on April 30, 1959, Dr. McVay discovered a hard lump under the skin in the region of plaintiff's front lower neck above her collarbone. This lump protruded forward and was about one-third of an inch in diameter. It was located at about the junction of the inner and middle third of the collarbone, if the collarbone were considered as being divided into thirds. At the time of this examination, it was Dr. McVay's opinion that this was a tumor in a lymph node which was possibly cancerous and indicative of a spreading cancerous condition in plaintiff's body. Dr. McVay then advised plaintiff that this lump might be malignant and that it should be removed and checked by a pathologist before proceeding with the proposed gall bladder operation. At this time, Dr. McVay advised the plaintiff that an operation to remove such a lymph node tumor was a simple, ordinary and frequently performed procedure. He did not discuss with her any residual effects of such an operation, as there usually were none. On the basis of this discussion, plaintiff consented to the removal of the lump.

On the following morning, May 1, 1959, the plaintiff was brought to an operating room in the hospital where she was prepared for the operation by injections of a local anesthetic into the area around the lump. Plaintiff remained seated upright and was conscious throughout the operation.

Dr. McVay then proceeded with the operation under the belief that the lump was a cancerous tumor of a lymph node. He first made an inch long incision into the skin and covering tissues to expose the lump. He did not explore the area around the lump before proceeding to remove it, as only the immediate area was made visible by the incision. Dr. McVay's description of the performance of the operation was as follows:

'This tumor and many like them, you can feel with the finger. This one protruded forward or anterially, you could feel it plainly under the skin and roll it around a little bit. A skin incision was made after the induction of the local anesthetic, beneath the skin there is a fatty layer, then there is a layer called fascia that is connective tissue, and then after that there are muscles in this vicinity, but none going over this except a muscle that lies within the fatty layer in the neck. The tumor war seen, it was white, hard clinically characteristic of the aforementioned cancerous lymph node, it was grasped with agrasping forceps, and using the knife described lifting it was gradually dissected out. And it's at the point, I've testified before, when the tumor was removed I realized that the base was nerve. * * * When I realized that a nerve was involved was at the instant that I could see, prior to which I could not, I could see the nerve at that location.'

When he removed the lump, Dr. McVay discovered that its base had been attached to the brachial plexus (i. e., the bundle of nerves leading from the cervical region of the spine to the arm and hand). He then realized that it was not a tumor of a lymph node, as he had previously thought, but that it was a neurofibroma (i. e., a benign nerve tumor). This was subsequently confirmed by the report of the hospital pathologist. Plaintiff denied that Dr. McVay advised her of this during or after the operation. Dr. McVay testified that he told plaintiff while still in the operating room that the tumor was not cancerous but appeared to be a neurofibroma.

In the course of dissecting out the neurofibroma, some minute nerve fibers of the brachial plexus were severed. This resulted in a continuing neurological defect in plaintiff's right arm, manifested by numbness in her right arm and in the thumb of her right hand.

Immediately following the operation, plaintiff experienced this numbness in her right arm and weakness of the arm and loss of control of the thumb. The next morning at the hospital, when Dr. McVay asked plaintiff how her arm was, plaintiff told him that she had this numbness and terrific pain in her right arm. Dr. McVay told plaintiff she should use her arm as she did before and try to do the same things with it that she did before the operation. According to plaintiff, Dr. McVay did not, at that time or at any time, explain to her what caused this condition in her arm. This was controverted by Dr. McVay in his testimony.

After recuperating from the gall bladder operation and returning to her home some two weeks later, plaintiff continued to experience the numbness and loss of feeling in her arm and thumb. This made it very difficult for plaintiff to grasp and hold any object in her right hand. Plaintiff saw Dr. McVay at his office for this condition on six or eight occasions during a period of more than a year, until June 2, 1960. On the visit of June 2, 1960, plaintiff's arm was again examined by Dr. McVay and a Dr. Statler. At this time, Dr. McVay suggested to plaintiff that she consult a neurosurgeon, Dr. Carroll Brown, at Sioux City, Iowa.

Following a visit to Dr. Brown, plaintiff went to the Mayo Clinic where she was examined for the condition of her right arm and thumb by Drs. Mayen, MacCarty and Polley. She was not treated by them. Upon her return, plaintiff called upon Dr. McVay and told him that the doctors there had told her that she had an incomplete lesion of the upper nerve trunk, and that there was nothing they could do about it.

Plaintiff testified that she would not have consented to the operation had she known beforehand that it might result in the kind of injury she suffered.

Plaintiff also saw Drs. Church and Smith, neurosurgeons, at Sioux Falls, South Dakota. They also were unable to recommend anything to afford her relief from her condition.

We are not concerned in this case with the question of causation. The defendant, by his testimony, admitted that the injury to plaintiff's right arm and hand was caused by his severance of some minute nerve fibers of her brachial plexus when he removed the tumor therefrom.

Plaintiff contends that the evidence presented on her case in chief supports an inference of negligence without the aid of expert medical testimony. The record of this case shows that the only testimony presented on behalf of the plaintiff was that of the plaintiff herself and of the defendant, who testified on adverse examination.

The general rule in medical malpractice cases is that the negligence of the physician or surgeon must be established by the testimony of medical experts. Lohr v. Watson, supra; 41 Am.Jur., Physicians and Surgeons, Sec. 128. The reason for the rule is that laymen are not qualified by learning and experience to judge the medical aspects of such cases. When the reason for the rule ceases to exist, the rule no longer applies. This gives rise to what has been termed an exception to the above rule. Therefore, in cases of medical malpractice where the physician's or surgeon's want of skill or lack of care is such that it is within the comprehension of laymen and requires only common knowledge and experience to judge it, expert evidence is not required. See Annotations 141 A.L.R. 5, 81 A.L.R.2d 597, and cases therein cited. This rule also finds support in the following cases: Myrlie v. Hill, 58 S.D. 330, 236 N.W. 287; Bennett v. Murdy, 61 S.D. 471, 249 N.W. 805; Lundgren v. Minty, 64 S.D. 217, 266 N.W. 145.

Plaintiff urges that this case falls within the exception and that the trial court erred in directing a verdict against her at the close of her case upon the ground that she had failed to present expert testimony on the question of defendant's negligence. This question of the necessity of expert testimony pervades all of the issues of negligence presented by the assignments of error in this case.

Plaintiff asserts that the evidence is sufficient to support a finding that the defendant was guilty of malpractice in the...