Boland v. Garber

• Decision Date: 19 August 1977
• Docket Number: No. 46914,46914
• Parties: Rose Ann BOLAND, as Trustee for the Heirs and Next of Kin of Francis D. Boland, Deceased, Appellant, v. George L. GARBER and Winona Clinic, Respondents.
• Court: Minnesota Supreme Court

Page 384

257 N.W.2d 384

Rose Ann BOLAND, as Trustee for the Heirs and Next of Kin of

Francis D. Boland, Deceased, Appellant, v. George L. GARBER and Winona Clinic, Respondents.

No. 46914.

Supreme Court of Minnesota.

Aug. 19, 1977.

Syllabus by the Court

1. The exclusion of a hospital rule in a medical malpractice action as evidence of the standard of care required of physicians in a particular community did not amount to reversible error.

2. The trial court did not abuse its discretion in denying plaintiff's motion to suppress the testimony of an expert witness.

Simon, Schneider & Zimmerman, Ralph S. Schneider and Ronald L. Simon, Minneapolis, for appellant.

Geraghty, O'Loughlin & Kenney and David C. Hutchinson, James W. Kenney, St. Paul, for respondents.

Considered and decided by the court en banc.

TODD, Justice.

An operation was performed on Francis D. Boland for the removal of his gall bladder. Shortly after the operation, Boland's physical condition deteriorated requiring the performance of several additional surgical procedures. Boland eventually died as a result of complications, and his wife, as trustee for his heirs and next of kin, brought a wrongful death action against the surgeon who performed the initial operation and Winona Clinic, a partnership of which the surgeon was a member. ¹ Following a verdict for defendants, the trustee asserts as errors the failure to allow in evidence a hospital rule requiring an assistant to be present during the surgery, and the improper admission of defense medical testimony for lack of notice. We affirm.

Boland initially consulted Dr. George L. Garber because he was experiencing some problems with his gall bladder. Surgery was recommended for his condition, and on August 21, 1972, Boland's gall bladder was surgically removed by Dr. Garber at the Winona Community Memorial Hospital. A few days later, postoperative complications developed indicating the possibility of a common bile duct obstruction.

A second operation was deemed necessary in order to halt the deterioration of Boland's condition caused by the obstruction. The second operation was also performed by Dr. Garber, who was assisted in this procedure by Dr. Charles Schafer. Unfortunately, the operation had to be terminated before the common bile duct obstruction could be eliminated due to problems encountered by the clinic in securing an adequate amount of the proper blood type for transfusion purposes. Boland's condition continued to deteriorate, necessitating his transfer to the Mayo Clinic for more intensive treatment. Four additional operations were performed on Boland at the Mayo Clinic in an attempt to save his life. Despite the concentrated efforts on his behalf, Boland ultimately died on December 19, 1972, from a general physical deterioration caused primarily by various postoperative complications.

The gravamen of the plaintiff's complaint is that the obstruction of the bile duct occurred during the first operation because of trauma inflicted upon the duct by Dr. Garber. The record, while indicating that trauma can cause an obstruction, does not clearly show that such trauma occurred in the initial operation. After a 5-day trial, the case was submitted to the jury, which returned a verdict in favor of the defendants, Dr. Garber and Winona Clinic. The plaintiff brought this appeal after her motion for a new trial was denied by the trial court. The following issues are raised on appeal:

(1) Whether the trial court erred in excluding from evidence a written hospital regulation requiring the presence of an assistant physician during major surgery; and

(2) Whether the trial court erred in permitting an expert medical witness to testify for the defense.

1. During the trial, plaintiff's counsel attempted to introduce Rule VI of the Winona Hospital Surgery Department Rules into evidence. The rule reads as follows:

"All surgeons shall have an assistant for any major operation. No anesthesia will be started until the surgeon and his assistant are in the operating suite and have signified their intention to proceed with the operation."

The rule was offered as evidence that Dr. Garber departed from the acceptable standard of care in performing the gall bladder surgery on Boland in that he was not assisted in the procedure by another physician. It was conceded by both parties that the gall bladder surgery performed on Boland was a major operation within the meaning of the rule. Dr. Garber also admitted that there was not a physician-assistant present during the first operation on Boland.

Defense counsel interposed an objection to the rule's admission on the grounds of relevancy and materiality. After initially reserving its ruling on the exhibit's admissibility, the trial court finally held that Rule VI was inadmissible and excluded it from evidence. In so ruling, the trial court analogized the proffered hospital rule to rules of a railroad company and relied upon several prior decisions of this court holding that railroad rules are not admissible into evidence to delineate the standard of care for employees of the company. ² The trial court also stated that it was excluding the hospital rule from evidence on the further grounds of relevancy and materiality.

On appeal, plaintiff argues that the trial court committed reversible error by excluding the rule from evidence. ³ None of our prior cases deal precisely with the issues presented by this contention.

However, several decisions of other jurisdictions have considered the admissibility of similar standards or rules in a medical malpractice setting. After reviewing these cases, we believe the better reasoned approach is to allow the hospital rules into evidence when they are determined by the trial court to be sufficiently relevant. Representative of the decisions favoring the admissibility of hospital rules or regulations in a medical malpractice action is Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253 (1965), certiorari denied, 383 U.S. 946, 86 S.Ct. 1204, 16 L.Ed.2d 209 (1966), in which the Illinois Supreme Court determined that hospital accreditation standards, state licensing regulations, and hospital bylaws all were relevant to a determination of the standard of care required of the defendant hospital:

"In the present case the regulations, standards, and bylaws which the plaintiff introduced into evidence, performed much the same function as did evidence of custom. This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known. It did not conclusively determine the standard of care and the jury was not instructed that it did." ⁴ 33 Ill.2d 332, 211 N.E.2d 257.

In adopting a rule favoring the admissibility of hospital rules as evidence of the standard of care in a community, we also adhere to the caveat included...