Botehlo v. Bycura

• Decision Date: 19 March 1984
• Docket Number: No. 0246,0246
• Citation: Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (S.C. App. 1984)
• Court: South Carolina Court of Appeals
• Parties: Patsy BOTEHLO, Appellant, v. Blair M. BYCURA, Respondent. . Heard

Page 59

320 S.E.2d 59

282 S.C. 578

Patsy BOTEHLO, Appellant, v.Blair M. BYCURA, Respondent.

No. 0246.

Court of Appeals of South Carolina.

Heard March 19, 1984.

Decided Aug. 30, 1984.

John C. Hayes, III of Hayes, Brunson & Gatlin, Rock Hill, for appellant.

John L. Choate of Nelson, Mullins, Grier & Scarborough, Columbia, for respondent.

BELL, Judge:

Patsy Botehlo brought this negligence action against Blair Bycura, a podiatrist, alleging professional malpractice.The issues joined were (1) whether Bycura exercised reasonable care in performing foot surgery without first attempting to alleviate Botehlo's problem by conservative management and (2) whether he breached a duty to inform Botehlo of the nature and risks of the surgery, including healing time, before obtaining her consent to the procedure.The circuit judge granted Bycura's motion for summary judgment on the ground that Botehlo failed to present expert testimony on either issue and Bycura was therefore entitled to judgment as a matter of law.Botehlo appeals.We affirm.

The material facts are largely undisputed.Botehlo suffered from a painful callus on the sole of her left foot.The callus had been there for about thirty-five years, but she had never sought medical treatment for the problem.In April 1980, she went to Bycura, a licensed podiatrist who practices in Rock Hill.After examining Botehlo and x-raying her foot, Bycura diagnosed her as having an intractable plantar keratoma, that is, a callus on the sole of her foot which would not go away.He told her the second and third metatarsals of the left foot were sitting lower than the others.These bones exerted a downward pressure which caused the callus and her painful symptoms.He told her the condition could be corrected by a surgical procedure which involves fracturing the bones and putting them back in place.He also told her she could wear a wide shoe as an alternative to surgery.Botehlo indicated she wanted the surgery and asked Bycura to perform it that same day.Bycura agreed.

With the assistance of a nurse, Botehlo then filled out and signed three written forms.One was a fee schedule indicating the cost of the operation.Another was a diagram of the left foot illustrating which bones would be fractured during the surgery.This form indicated the operation involved "bone fracture" and "bone removal."It listed healing time for the operation as:

85% - 3 mos
                95% - 9 mos
                100% - at least 1 year
                

It also listed complications and dangers of the surgery.Botehlo signed and dated this form in a blank immediately to the right of the list of healing times.

The third form was an authorization for and consent to surgery.It contained a detailed list of complications that might occur as a result of the surgery.On the reverse side it listed seven alternatives instead of surgery.These included seeking a second opinion.Botehlo indicated on the form she did not wish to seek a second opinion.She signed the consent form on the front and the back.Before she signed it, a description of the operation ("Bone fracture Bone removal 2d & 3d metatarsals left foot") was written immediately below the space for her signature on both the front and back of the form.

After Botehlo signed these forms, Bycura returned and performed the operation, called an osteotomy, on the second and third metatarsals of her left foot.As a result of the operation Botehlo experienced pain, swelling, discoloration, and other discomfort.Because her foot hurt, she had difficulty sleeping at night for several weeks.Although she was able to return to her regular desk job the second day after the surgery, for three months she was unable to return to her parttime job as a sales clerk at a pharmacy, because she could not stand on her foot for any length of time without pain.She testified that her second and third toes no longer moved like the others, that she sometimes had shooting pains in her foot, and that she wished her foot was back the way it was.She felt Bycura had misled her about the amount of pain and disability she would suffer from the operation.

After returning to Bycura's office once to have her surgical dressing changed and once to have her stitches removed, Botehlo failed to keep any further postoperative appointments with Bycura.The purpose of the additional appointments was to fit her with an orthotic device to be worn in her regular shoes.This was supposed to relieve pressure on her foot and reduce the possibility of transfer lesions, i.e., the reappearance of calluses on another part of her foot.Instead of returning to Bycura, she consulted an orthopaedic surgeon, Dr. Robert M. Scoville, who treated her for a period of about six months.According to her own testimony, Botehlo told Dr. Scoville:

... I would not wear an orthopaedic shoe.I didn't wear one before the surgery and I wasn't going to wear the ugly things now.He did say something about, well, that might help.

In his deposition Dr. Scoville testified that the osteotomies were done in the correct place, that they healed normally, and that there was no question they did take care of Botehlo's plantar keratosis.By the end of September 1980 the callus was gone and weight reduction from the second and third metatarsals had been accomplished.However, Scoville also testified he would have tried an oxford shoe with padding and a metatarsal bar for six months before considering surgery to correct Botehlo's problem.He agreed that this conservative course of treatment might not have alleviated Botehlo's preoperative problem and that surgery might have been necessary anyway.

I.

The first issue on appeal is whether Botehlo was required to offer expert testimony on the issue of Bycura's failure to use conservative management before performing surgery.

In a medical malpractice action the plaintiff must establish by expert testimony both the required standard of care and the defendant's failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge or experience, so that no special learning is needed to evaluate the defendant's conduct.SeeBurke v. Pearson, 259 S.C. 288, 191 S.E.2d 721(1972);Welch v. Whitaker, 317 S.E.2d 758(S.C.App.1984).The reason for requiring expert testimony is that matters of proper diagnosis and treatment ordinarily involve technical knowledge beyond the ken of laymen.SeeBessinger v. DeLoach, 230 S.C. 1, 94 S.E.2d 3(1956).Thus, on a defendant's motion for summary judgment, there will usually be no genuine issue of material fact unless the plaintiff presents expert testimony on the standard of care and its breach by the defendant.SeeSheppard v. Kimbrough, 318 S.E.2d 573(S.C.App.1984).

The disputed issue in this case is whether Bycura's decision to perform surgery violated the professional standard of care required of podiatrists.A decision to perform surgery involves medical judgment outside the realm of lay knowledge or experience.Therefore, expert testimony would normally be required.

Botehlo argues, however, that expert testimony was unnecessary, because Bycura himself admitted he deviated from the standard of care laid down by a recognized authority in the podiatric field.She claims this creates an exception to the normal rule requiring expert testimony.We find the evidence upon which Botehlo relies does not support her position.

During Bycura's deposition, Botehlo's lawyer examined him using an article from the Journal of Foot Surgery co-authored by Dr. Joseph B. Addante.Bycura admitted Addante's writings are authoritative in the field of podiatry.The article discussed the metatarsal osteotomy as a means of treating painful intractable plantar keratosis.One part of the article stated: "In considering use of this procedure [i.e., the metatarsal osteotomy] biomechanical management should be tried first.Surgery is considered if the biomechanical management is not enough to render the patient comfortable."When asked if he agreed with this statement, Bycura said, "With reservations, I agree with it."In response to further questioning, Bycura explained that the statement did not apply to all cases.He believed the statement was not valid in Botehlo's case where the problem had lasted over thirty years.In his judgment, after thirty years Botehlo's problem would not go away with conservative management.

This testimony cannot fairly be characterized as an admission by Bycura that he deviated from the standard of care required of a podiatrist treating Botehlo's problem.The Addante article was not competent evidence of the standard of care required of podiatrists in the circumstances.SeeEdwards v. Union Buffalo Mills Co., 162 S.C. 17, 159 S.E. 818(1931)(medical treatise not competent evidence even though author is a standard authority on the subject).Therefore, the article itself could not be relied on to create the material issue of fact which would preclude summary judgment.SeeRule 44(d), Rules of Practice for the Circuit Courts of South Carolina(motion must be opposed by such facts as would be admissible in evidence).Moreover, Bycura did not agree the statement quoted from the article represented the professional standard to be observed in a case like Botehlo's.As he made no such admission, his own testimony did not create an exception to the rule that the plaintiff must present expert testimony on the issue of malpractice to survive a defendant's motion for summary judgment.

II.

Since expert testimony was required, the next issue is whether Dr. Scoville, an orthopaedic surgeon, could testify as an expert regarding the standard of care to be observed by a podiatrist.This is a question of first impression in South Carolina.¹

Podiatry is a recognized profession in South Carolina.See§§ 40-51-10 to -270, Code of Laws of South Carolina, 1976, as amended.The duty and liability of a podiatrist correspond to those of health care...