Buzzell v. Libi

• Decision Date: 31 October 1983
• Docket Number: No. 10371,10371
• Citation: 340 N.W.2d 36
• Parties: Dominic BUZZELL and Doris Buzzell, husband and wife, Plaintiffs and Appellants, v. Dionisio T. LIBI, Dionisio T. Libi, P.C., and St. Joseph's Hospital, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 36

340 N.W.2d 36

Dominic BUZZELL and Doris Buzzell, husband and wife Plaintiffs and Appellants, v. Dionisio T. LIBI, Dionisio T. Libi, P.C., and St. Joseph's Hospital, Defendants and Appellees.

Civ. No. 10371.

Supreme Court of North Dakota.

Oct. 31, 1983.

Arne F. Boyum, Jr., Rolla, for plaintiffs and appellants.

Lance Schreiner, of Zuger & Bucklin, Bismarck, for defendants and appellees Dionisio T. Libi and Dionisio T. Libi, P.C.

Richard H. McGee II, of McGee, Hankla, Backes & Wheeler, Minot, for defendant and appellee St. Joseph's Hosp VANDE WALLE, Justice.

Dominic and Doris Buzzell appeal from the amended judgment dated October 4, 1982, dismissing their action against St. Joseph's Hospital, and from the judgment dated November 9, 1982, dismissing their action against Dionisio T. Libi and Dionisio T. Libi, P.C. We affirm in part, but remand for a determination by the trial court on the Buzzells' objections to costs and disbursements taxed as part of the November 9, 1982, judgment.

Mrs. Buzzell has a lengthy history of ear problems, and had been treated by Dr. Libi on numerous occasions prior to 1978. During the spring and summer of 1978, Dr. Libi treated Mrs. Buzzell for pain and drainage in her right ear. On September 25, 1978, Dr. Libi observed a small wire protruding through the right eardrum, as well as cholesteatoma ¹ debris present in the ear. On the basis of these observations, Dr. Libi recommended surgery, which was scheduled for October 31, 1978.

Mrs. Buzzell checked into St. Joseph's Hospital on October 30, and signed a surgery consent form which had been prepared by a nurse on the hospital staff. This consent form erroneously listed the procedure to be performed as "Left Exploratory tympanotomy, Possible mastoidectomy." While preparing for the surgery, Dr. Libi noticed that the consent form erroneously authorized left ear surgery, rather than right ear surgery. Dr. Libi proceeded to remove the wire from Mrs. Buzzell's right eardrum, then used a surgical microscope to look for cholesteatoma through the hole created by the wire. Dr. Libi found no evidence of cholesteatoma in the right ear, and decided against any further surgical procedures on that ear.

Dr. Libi then decided to examine Mrs. Buzzell's left ear, although he had never discussed surgery on the left ear with Mrs. Buzzell and was aware that the word "left" on the consent form was a mistake. Upon examining Mrs. Buzzell's left ear with the surgical microscope, Dr. Libi discovered a marginal perforation of the eardrum. Believing that a marginal perforation of the eardrum suggested the possibility of cholesteatoma in that ear, Dr. Libi proceeded to perform an exploratory tympanotomy and tympanoplasty.

Following surgery, Dr. Libi located Mr. Buzzell and informed him of the erroneous consent form and the procedures which had been performed. At Mr. Buzzell's request, Dr. Libi did not inform Mrs. Buzzell of the mistake on the form, but he did explain to Mrs. Buzzell the surgical procedures which he had performed on both ears.

Although Mrs. Buzzell initially expressed satisfaction with the results of the surgery, she became upset when informed by her husband in December of 1978 that there had been an error made on the consent form which she had signed. She thereafter sought treatment from ear, nose, and throat specialists in Williston, North Dakota, and Seattle, Washington. In October of 1979, Dr. Roger Lindeman of Seattle discovered evidence of cholesteatoma in Mrs. Buzzell's right ear, and he performed a tympanoplasty, mastoidectomy, and ossicular reconstruction.

Dominic and Doris Buzzell brought this action against Dr. Libi, his professional corporation, and St. Joseph's Hospital, alleging malpractice based upon her treatment in October of 1978. The action was tried to the court without a jury, and at the completion of trial the court dismissed the claims against St. Joseph's Hospital. The court, by memorandum opinion, dismissed the action against Dr. Libi and his professional corporation. An amended judgment dismissing the action as to St. Joseph's and awarding St. Joseph's costs in the amount of $3,257 was entered on October 4, 1982. Judgment dismissing the action as to Dr. Libi and his professional corporation, and awarding costs in the amount of $11,955.85, was entered on November 9, 1982. The Buzzells appeal from both judgments.

The following issues are presented by this appeal:

1. Were the findings of fact made by the trial court clearly erroneous?

2. Was Dr. Libi negligent in terminating the right-ear surgery when examination of the middle ear failed to reveal the existence of cholesteatoma?

3. Was Dr. Libi negligent in performing surgery upon Mrs. Buzzell's left ear?

4. Did the Buzzells receive a fair and impartial trial?

5. Were the costs taxed in favor of Dr. Libi and his professional corporation contrary to law or excessive?

I

The Buzzells have challenged various findings of fact made by the trial court. They assert that no less than 26 of the court's 28 findings of fact are clearly erroneous. Rule 52(a), North Dakota Rules of Civil Procedure.

The trial court was presented with much conflicting evidence, including conflicting expert testimony. We have made it clear in the past that we will not re-examine findings of fact decided by the trial court upon conflicting evidence. Kasper v. Provident Life Insurance Co., 285 N.W.2d 548 (N.D.1979); Schmidt v. Plains Electric, Inc., 281 N.W.2d 794 (N.D.1979); Dickinson Education Association v. Dickinson Public School District No. 1, 252 N.W.2d 205 (N.D.1977); Eakman v. Robb, 237 N.W.2d 423 (N.D.1975). Nor will we appraise the credibility of expert witnesses. Schmidt v. Plains Electric, supra; Foremost Insurance Co. v. Rollohome Corp., 221 N.W.2d 722 (N.D.1974). These are properly functions of the trial court, and we will not substitute our judgment for that of the trial court when there is testimony to support its findings. Gulden v. Sloan, 311 N.W.2d 568 (N.D.1981).

We have carefully examined the record in this case in light of the alleged errors in the findings of fact, and conclude that there is ample testimony to support the findings of the trial court.

II

The Buzzells contend that Dr. Libi was negligent in failing to perform invasive surgery on Mrs. Buzzell's right ear. They argue that Mrs. Buzzell's right ear contained a cholesteatoma growth at the time of the surgery by Dr. Libi, and that his negligent failure to more fully examine her middle ear caused the condition to worsen, necessitating surgery by Dr. Lindeman in October 1979.

The trial court found that Dr. Libi was not negligent in failing to perform invasive surgery on Mrs. Buzzell's right ear. There was expert testimony that it was medically appropriate for Dr. Libi to not perform the planned invasive surgery when he was unable to detect evidence of frank cholesteatoma in the middle ear through the surgical microscope. There was also testimony that two otolaryngologists who examined Mrs. Buzzell's right ear between October 1978 and October 1979, Dr. Cheng in Williston and Dr. Lindeman in Seattle, did not find any evidence of cholesteatoma during that period of time. In October 1979, Dr. Lindeman did find evidence of cholesteatoma in the right ear, and subsequently performed surgery on Mrs. Buzzell. Dr. Lindeman testified, by deposition, that in his opinion it was possible that the cholesteatoma which he discovered in Mrs. Buzzell's right ear could have developed within the one-year period between October 1978 and October 1979. Two other expert witnesses testified at trial that the cholesteatoma could have developed within this one-year period.

On the basis of this evidence, the trial court concluded that Dr. Libi was not negligent in deciding to not perform invasive surgery when he was unable to find evidence of frank cholesteatoma within the middle ear. The court also concluded that Dr. Libi was not negligent in failing to find evidence of frank cholesteatoma at that time. The findings and conclusions of the trial court in this regard are amply supported by the record.

III

The Buzzells also contend that Dr. Libi was negligent in performing surgery on Mrs. Buzzell's left ear when she had not consented to surgery on that ear. Although Mrs. Buzzell signed a consent form specifying left-ear surgery, Dr. Libi admitted that he had never discussed left-ear surgery with Mrs. Buzzell. Dr. Libi also admitted that at the time of surgery he realized that there had been a "mix-up" on the consent form and that he knew Mrs. Buzzell had come to the hospital to have surgery on her right ear. Notwithstanding his knowledge of the circumstances, Dr. Libi performed surgery on Mrs. Buzzell's left ear.

The Buzzells do not contend that Dr. Libi was negligent in the actual performance of the surgery; nor do they contend that the surgery performed was an inappropriate manner of correcting the problems in her left ear. The record fully supports the trial court's conclusion that Dr. Libi's surgery on Mrs. Buzzell's left ear was performed in a manner which met or exceeded the standard of care for specialists in ear, nose, and throat surgery.

The issue presented on appeal is whether Dr. Libi was negligent when he decided to proceed with major surgery on Mrs. Buzzell's left ear when he was fully aware that she had not been advised of the attendant risks and had not consented thereto. It is clear that the erroneous consent form could in no way be viewed as a valid informed consent by Mrs. Buzzell for left-ear surgery when she had never discussed left-ear surgery with Dr. Libi and had never been advised of the risks involved. See Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, n. 3 (1977). Neither does this case fit within the emergency exception to the informed-consent doctrine, which provides that consent is not necessary when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to...