Buie v. Reynolds
| Citation | 571 P.2d 1230 |
| Decision Date | 31 May 1977 |
| Docket Number | No. 48264,No. 2,48264,2 |
| Parties | Talmadge N. BUIE, Appellant, v. Charles L. REYNOLDS, M.D., and John T. Freie, M.D., Appellees |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Oklahoma County; David M. Cook, trial judge.
Action of medical malpractice brought by patient against surgeons after operation performed and patient subsequently experienced incontinence of the bladder. From adverse jury verdict, patient appeals, contending trial court erred in refusing patient's proffered instruction regarding circumstantial evidence.
REVERSED AND REMANDED WITH DIRECTIONS
Ed Abel, Lampkin, Wolfe, Burger, Abel, McCaffrey & Norman, Oklahoma City, for appellant.
Calvin W. Hendrickson, Oklahoma City, for appellees; Pierce, Couch, Hendrickson & Short, Oklahoma City, of counsel.
This appeal is brought by plaintiff from a jury verdict and judgment thereon in a medical malpractice case. The sole issue for us to decide is whether the trial court erred in refusing to instruct the jury concerning circumstantial evidence.
The record reflects that in May of 1973 plaintiff was a 35-year-old married man with three children. Plaintiff had been experiencing for several weeks what he thought was possibly a kidney infection. His symptoms were a "foul smelling odor to the urine and a burning sensation after sex." Plaintiff consulted with defendant Reynolds who discovered plaintiff's bladder would not empty completely because of an obstruction where the bladder empties into the urethra.
Defendant Reynolds recommended plaintiff have surgery to remove the obstruction. The surgery to be performed was a transurethral resection (TUR). Simply stated the TUR involved introducing an instrument into plaintiff's penis through the urethra to the point where the urethra connects with the bladder and then "chipping" or cutting away the tissue to enlarge the opening from the bladder to the urethra.
On May 22, 1973, the day before the surgery was to be performed on plaintiff, defendant Reynolds visited plaintiff in the latter's hospital room. Defendant at this time introduced defendant Freie as a resident in the hospital who assisted defendant Reynolds. It is undisputed plaintiff was not told defendant Freie would do part of the surgery.
On May 23, 1973, defendants Reynolds and Freie performed the TUR on plaintiff with defendant Freie removing 50 to 70 percent of the tissue that was removed. It is further undisputed that during the hour-long surgery defendant Reynolds left the operating room on at least two different occasions for coffee, which the defendant surgeons testified was an accepted common practice by most surgeons.
Admittedly defendant Reynolds left the room at least twice but the length of his absences is somewhat unclear. By deposition his absence was said to be a total of 30 minutes but at trial it was stated to be a total of 10 to 15 minutes.
The evidence is undisputed that during one of defendant Reynolds' absences, defendant Freie testified he encountered a hemorrhaging problem, and he sent for defendant Reynolds' assistance. Defendant Reynolds assisted Freie and again left the operating room to return later and complete the surgery.
Three days after the operation a catheter in plaintiff was removed and plaintiff was unable to control the flow of urine from his body. Defendants explained to plaintiff that this problem was not uncommon after a TUR and it should resolve itself by the time plaintiff was released from the hospital. During the remainder of plaintiff's stay in the hospital, plaintiff would "wet" his bed and upon standing would loose the urine in his bladder without being able to control the flow. Plaintiff then used tissue or towels in his underwear to retain his urine leakage any time he got out of bed.
Several days after surgery plaintiff was released to go home with assurances from defendants the problem would resolve itself. Defendants explained to plaintiff that in proceeding through the urethra to the bladder where the cutting was done, it was necessary to pass through what is called the sphincter muscle. The sphincter muscle is just outward from the bladder and circles the urethra. The sphincter muscle is nature's "on and off" muscle and closes on the urethra to seal it, thus controlling the flow of urine from the bladder. Defendants explained to plaintiff that during a TUR and subsequent catherization, the sphincter muscle is sometimes stretched and occasionally it takes up to six weeks before a person totally regains control of his "on and off" muscle.
After several weeks at home plaintiff continued to experience incontinence. Plaintiff employed the use of towels, baby diapers and other paraphernalia in his undershorts to contain his constant leakage.
Thereafter, because of the continuous exposure to urine, plaintiff broke out in a rash, similar to that which young babies experience. Plaintiff then suffered numerous problems in his employment because of his uncontrollable urination which soaked his clothing. He then used a "Cunningham clamp," which is a clamping device used on the male organ to check the leakage. Experiencing problems with the "Cunningham clamp," plaintiff ultimately consulted another doctor on July 30, 1973. This doctor performed a cystoscopic examination upon plaintiff. A cystoscopic examination is simply entering the penis through the urethra to visually inspect the bladder. The cystoscoping doctor reported in his finding that there was a "resection" or cut appearing to go "distal" to the verumontanum. The verumontanum or "vera" is between the sphincter muscle and the bladder and is used as a landmark to work to or from when performing a TUR. If one travels into the body from the verumontanum he is said to go "proximal" and if one travels outward from the verumontanum he is said to be going "distal" to the verumontanum. The tissue to be removed in plaintiff's TUR was undisputedly to be inward or proximal from the verumontanum. The cystoscoping doctor reported that a resection (cut) appeared to go distal to the vera at about 10 o'clock, that is, on the patient's right. There was nothing obstructive. The sphincter was "at least partially intact."
On September 5, 1973 plaintiff consulted his cousin Dr. Buie in Texas who practiced with a Dr. Mallard. Doctors Buie and Mallard were urologists and they also cystoscoped plaintiff. Doctors Buie and Mallard testified they found plaintiff had a "defect" in the sphincter muscle at the same location the other cystoscoping doctor reported a "resection." The two Texas doctors testified the defect in plaintiff's sphincter muscle appeared to be the same size and shape as that made by a "resectoscope," which is the cutting tool used in performing a TUR.
During this time plaintiff's inability to control his flow of urine presented additional problems. Plaintiff was fired from his job in Oklahoma and moved back to Texas. Plaintiff also began to experience marital problems. The testimony showed that when plaintiff attempted to engage in intercourse with his wife his lack of "control" caused him, for the lack of a better explanation, to urinate in an untimely manner. Plaintiff experienced considerable emotional problems as a result and subsequently was unable to obtain an erection.
Eventually plaintiff was referred to a doctor in Miami, Florida, who had obtained substantial success with patients suffering from incontinence due to a damaged or defective sphincter muscle. The Miami doctor used a procedure of injecting Teflon in liquid form into the damaged area of the sphincter muscle to build up the defect to enable the muscle to form a water tight seal thus holding the urine in the bladder and stopping the leakage.
Plaintiff subsequently visited the Miami doctor and underwent surgery for the Teflon injections on three occasions prior to trial. Normally one or two injections will "dry up" the patient, testified the Miami doctor. Plaintiff, whose incontinence had not subsided at time of trial, testified he was going to go to Miami for his fourth Teflon injection.
The foregoing fairly represents plaintiff's proof. The case was submitted to a jury which returned a verdict for defendants.
Plaintiff now appeals and argues under one proposition of error which reads as follows:
"The trial court erred in refusing to give plaintiff's requested instruction on the effect and force of circumstantial evidence."
In this regard plaintiff argues his "hope for recovery lay in his ability to show that his sphincter muscle was cut as a result of defendants' cutting distal to the vera, close to the sphincter muscle, when defendants admitted that there was no reason to cut distal to the vera."
Plaintiff argues he was at a substantial disadvantage to provide direct evidence defendants cut the sphincter muscle because defendants are the only persons possessed of this direct knowledge. Thus, argues plaintiff, he must rely upon circumstantial evidence and therefore he was entitled to an instruction as to the effect and force of circumstantial evidence.
Defendants' position is, because plaintiff had some direct evidence (Doctors Buie's and Mallard's testimony) or because plaintiff's case was not based solely on circumstantial evidence, that the trial court did not err in refusing to give the requested instruction on circumstantial evidence. 1 Defendants rely upon Chase v. Watson, Okl., 294 P.2d 801 (1956) where the court said in syllabus two:
"When the plaintiff's case does not rest entirely on circumstantial evidence, and although there was some in it, it was not essentially necessary for the court to give special instructions on circumstantial evidence; and with a general charge given to the jury to reach its conclusions from all the facts and circumstances appearing...
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