O'BRIEN v. Stover

• Decision Date: 09 June 1971
• Docket Number: No. 20533.,20533.
• Citation: 443 F.2d 1013
• Parties: Susan K. O'BRIEN, Administrator of the Estate of Leona Cameron, Deceased, Appellee, v. Donald R. STOVER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

443 F.2d 1013 (1971)

Susan K. O'BRIEN, Administrator of the Estate of Leona Cameron, Deceased, Appellee, v. Donald R. STOVER, Appellant.

No. 20533.

United States Court of Appeals, Eighth Circuit.

June 9, 1971.

W. David Tyler and Larry J. Cohrt, Swisher & Cohrt, Waterloo, Iowa, for appellant.

William C. Ball and John C. Beekman, Waterloo, Iowa, for appellee.

Before MATTHES, Chief Judge, GIBSON, Circuit Judge, and HENLEY, District Judge.^*

GIBSON, Circuit Judge.

This is an appeal in a diversity case from the Northern District of Iowa. The plaintiff O'Brien, as administrator of her mother's estate, was awarded judgment on a jury verdict of $50,000 against the defendant Stover,¹ an oral surgeon, from which judgment the defendant appeals. The cause of action was medical malpractice. The defendant challenges the court's jurisdiction, contends no liability and complains that the verdict is excessive. We affirm.

I. THE FACTS

Viewing the evidence in the light most favorable to the verdict, the following facts are summarized from the record. On May 10, 1967, the deceased, Leona Cameron, appeared without an appointment in the defendant's office on a referral from her regular dentist. She complained of a toothache. On investigation, it appeared that there was an abscess or infection surrounding the tooth, the lower right first molar, and Dr. Stover extracted the tooth. X-rays taken at this time revealed a partial destruction of the bone underlying this tooth. Dr. Stover's initial diagnosis was "pyorrhea — a periodontal abscess." At a second appointment on May 26, Dr. Stover observed that the tooth socket was not healing properly. On June 9, 1967, the extraction site still was not healing properly. Mrs. Cameron complained of intermittent bleeding and the tissue was friable — i.e., it bled easily. The gum tissue surrounding the extraction site, as opposed to the extraction site itself, appeared normal. Nevertheless, because the extraction was not healing properly, Dr. Stover believed something was abnormal. He ordered various tests to determine if she had any blood diseases, including leukemia, that might have been affecting her healing, which turned out to be negative. He did not order a tissue biopsy which probably would have revealed the presence of a tissue cancer, poorly differentiated epidermoid carcinoma of the oral cavity, which was the ultimate cause of her death.

From this date until August 22, Mrs. Cameron was periodically examined by Dr. Stover. The tooth next to the extraction site, the lower right second bicuspid, became loose and was extracted. The prior symptoms were still present — the extraction did not heal properly, the tissue bled easily when probed, there was intermittent spontaneous bleeding and additionally Mrs. Cameron generally complained of not feeling well. Further X-rays were taken and the bone destruction was clearly shown. Further blood tests and a test for bone marrow cancer were ordered. These were negative. No tissue biopsy was done. There was still no definite evidence of a tumor on the gum.

She again appeared at Dr. Stover's office August 22, complaining of bleeding. This was the first time that the bleeding had occurred spontaneously while she was in Dr. Stover's office without being probed lightly by forceps. This time Dr. Stover took a cytological smear of the affected area for pathological evaluation. Here a distinction between a cytological smear and a tissue biopsy is necessary. Both are tests done to discover a tissue cancer. A cytological smear consists of scraping cells from the surface of the affected area for microscopic examination. A tissue biopsy consists of making an incision in the affected area and taking a section of the tissue for microscopic examination. The cytological smear is not a very good diagnostic device. It is a good screening device — i.e., a good method of discovering unsuspected cancers in the general population, as is commonly done with cervical cancers in women. But where there are other symptoms leading one to suspect a cancer is present, it is not a good method of getting a definitive diagnosis because of the danger of getting a "false negative" — i.e., as compared to a tissue biopsy, a cytological smear has a much greater chance of failing to indicate a cancer which is actually present. Therefore, in order to get a definite diagnosis, a tissue biopsy should be done.

It may be noted that at this point Mrs. Cameron had been under Dr. Stover's care since May 10, that since June 9 he knew some underlying causal condition was causing her not to heal properly, that no diagnosis had been made of this continuing abnormal condition, and that she had been given no treatment to correct the condition. (The tooth extraction did not constitute treatment of the condition but merely alleviation of a symptom — another loose tooth.)

The next day, August 23, Dr. Stover met with a pathologist and a radiologist to discuss Mrs. Cameron's condition. The pathologist revealed that the cytological smear had been negative — i.e., had not revealed a cancerous condition — but that no definite conclusions could be drawn in this regard unless there was a tissue biopsy. Dr. Stover did not want to do a tissue biopsy because if the condition were osteomyelitis, an infection of the bone and surrounding soft tissue, he feared that making an incision necessary for the tissue biopsy would aggravate the infection and possibly cause it to spread. The doctors then arrived at a diagnosis of chronic osteomyelitis, and Dr. Stover prescribed an antibiotic to treat it.

During the next month, Mrs. Cameron was twice treated by Dr. Stover for serious hemorrhaging from the base of the socket, once requiring hospitalization, and was otherwise periodically examined. The antibiotic treatment was continued. On September 26, Mrs. Cameron had another office call, and at this point Dr. Stover observed what was likely a cancerous tumor on her gum. He made arrangements for her to enter the University Hospital at Iowa City, Iowa, on October 4, 1967. There she was immediately diagnosed as suffering from poorly differentiated epidermoid cancer. The remaining medical history is not material to this opinion. She underwent massive surgery, radiology treatments, etc., which were unsuccessful, and ultimately died of the cancer on August 22, 1968.

II. JURISDICTION

The defendant challenges federal jurisdiction on the grounds that there is no bona fide diversity of citizenship between the parties, contending that the appointment of Mrs. O'Brien as administrator of the decedent's estate was solely to "manufacture" diversity of citizenship, relying on McSparran v. Weist, 402 F.2d 867 (3d Cir.1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969). McSparran is the leading Third Circuit case on "manufactured" diversity of citizenship, which held that where the appointment of an out-of-state personal representative is for the sole purpose of creating diverse citizenship, that is insufficient to confer federal jurisdiction under 28 U.S.C. § 1359,² which deprives a federal court of jurisdiction in cases where a party is "improperly or collusively made or joined." The McSparran rule has since been adopted in the Second, Fourth and Fifth Circuits.³

Our court has not specifically adopted the McSparran rule, although it seems consistent with the precedent in this Circuit. See Rogers v. Bates, 431 F.2d 16 (8th Cir.1970). However, we think it is clear here that Mrs. O'Brien's appointment was not "improper or collusive" under § 1359. Mrs. O'Brien was the deceased Leona Cameron's daughter and her sole heir. She had lived near and cared for her mother during her illness until her death. Following her mother's death, Mrs. O'Brien moved with her husband and children to Mankato, Minnesota, where they have since continuously lived. The reason for this move was that her husband accepted a job in that town, where he has since been continuously employed. The diversity here is bona fide and plaintiff's appointment as administrator was natural and logical under the circumstances. She was the real party in interest. These facts are sufficient to establish diversity jurisdiction. Janzen v. Goos, 302 F.2d 421 (8th Cir.1962).

III. THE EVIDENCE OF NEGLIGENCE

The record in this case is voluminous, but the critical testimony with regard to Dr. Stover's conduct is found in the testimony of Dr. Charles Janda. Essentially, plaintiff's case is as follows. Mrs. Cameron's cancer was probably present from the time she went for treatment on May 10, 1967; Dr. Stover suspected something was wrong as early as June 9, 1967, and indeed suspected some systemic ailment, possibly leukemia (cancer) at this time; a tissue biopsy performed June 9 or anytime thereafter would have revealed this cancer; had the cancer been caught at an earlier time, Mrs. Cameron's chances for survival would have been better and in any event she would have lived longer and in more comfort; and Dr. Stover was negligent in failing to diagnose the cancer by performing a tissue biopsy.

This theory was supported in all respects by the testimony of Dr. Janda, whose qualifications as a medical expert were not challenged. He testified in substance that if Dr. Stover suspected cancer on June 9 he should have done a tissue biopsy; and even if he didn't suspect cancer on June 9, he should have, as there were sufficient signs and symptoms at that time; and the failure to do the biopsy was negligent. He further testified that the failure to render any treatment to correct the underlying condition between June 9 and August 23, whether for osteomyelitis or cancer, was negligent. (Presumably had treatment of osteomyelitis been undertaken earlier, the patient's failure to respond would have been highly suggestive of the need to re-evaluate the diagnosis.)

Dr. Stover asserts two defenses on the issue of negligence. One apparently is that there was no obvious evidence...