Campbell v. Oliva, 19810.

• Decision Date: 22 April 1970
• Docket Number: No. 19810.,19810.
• Citation: 424 F.2d 1244
• Parties: Barbara CAMPBELL, Plaintiff-Appellant, v. Peter OLIVA, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

424 F.2d 1244 (1970)

Barbara CAMPBELL, Plaintiff-Appellant, v. Peter OLIVA, M.D., Defendant-Appellee.

No. 19810.

United States Court of Appeals, Sixth Circuit.

April 22, 1970.

N. Eugene Worthington, Madisonville, Tenn., J. D. Lee, Madisonville, Tenn., Charles R. Terry, Morristown, Tenn., on the brief, for appellant; Reed & Terry, Morristown, Tenn., of counsel.

C. T. Herndon, III, Johnson City, Tenn., J. Paul Coleman, C. T. Herndon, III, Johnson City, Tenn., on the brief, for appellee; Simmonds, Herndon, Johnson & Coleman, Johnson City, Tenn., of counsel.

Before WEICK and EDWARDS, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WEICK, Circuit Judge.

The only question in this appeal is whether the District Court erred in granting defendant's motion for a directed verdict, made at the close of all of the evidence.

The suit was against a plastic surgeon for damages for malpractice in his diagnosis, treatment and surgery of plaintiff's jaw. Jurisdiction was based on diversity of citizenship.

The substantive issues of this case are governed by Tennessee law. The procedural issues are controlled by Federal law. In the Federal Courts, factual issues are decided by the jury and not by the Court. Byrd v. Blue Ridge Rural Elec. Co-Op., Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).

In the consideration of a motion for a directed verdict made by the defendant at the close of all the evidence, the Court is required to view the evidence, as well as all inferences properly deducible therefrom, in the light most favorable to the plaintiff. Taylor v. Cirino, 321 F.2d 279 (6th Cir. 1963).

The Supreme Court of Tennessee, in construing Art. VI § 9 of the Tennessee Constitution, held that it "was intended to preserve to the jury `the right to determine what facts are proved in a cause.' Ivey v. Hodges, 23 Tenn. (4 Humph.) 154, 155." Haskins v. Howard, 159 Tenn. 86, 97, 16 S.W.2d 20, 23 (1929).

In Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271 (1891), it was held:

"For the Court to direct the jury to return a verdict in favor of either party, where there is any conflict in the evidence, is an invasion of the province of the jury by the Court, for which the case will be reversed." (Italics ours) (Syl. 4)

The plaintiff, Barbara Campbell, was a minor, who, with her husband, was attending East Tennessee State University at Johnson City, Tennessee. On September 20, 1967, while frolicking with her husband, she received an accidental blow on the left side of her face. Numbness developed for a short time. Six days later she awoke with pain in her left jaw. She consulted Dr. Burgin Dossett, Jr., an internist at the University Clinic. Dr. Dossett sent her to Memorial Hospital, where x-ray pictures were taken of her jaw by Dr. J. J. Range, a radiologist, admittedly qualified by education and experience to read and interpret x-ray pictures. Dr. Range interpeted the x-rays and reported them as negative for fractures and reported further that the left temporomandibular joint appeared normal. Dr. Dossett informed Dr. Oliva of this reading.

The pain did not subside. Dr. Dossett was unable to open Barbara's mouth wide enough to insert a tongue depressor. On October 15th Dr. Dossett referred Barbara to the defendant, Dr. Peter Oliva, who specialized in the practice of plastic surgery, in the area of Johnson City. Until she consulted Dr. Oliva, Barbara had received no treatment by Dr. Dossett except analgesics for pain.

When Barbara consulted Dr. Oliva on October 15th, she handed the x-rays to him, but did not see him examine them. He opened and closed her mouth and asked her when she had pain. He told her she had a fracture of the left condyle and that it would have to be repaired by surgery. The following day, October 16th, Oliva saw her again and injected the area of the left condyle with drugs in order to mobilize it. He also inserted a needle in the area by the use of which he claimed to be able to diagnose that there was a fragment, or a fracture, or a detached condyle. The drugs did not alleviate the pain. He testified that he was unable to move the upper joint and could move the lower only half a centimeter. This procedure consumed from thirty to forty minutes.

He testified:

"It was then obvious to us that we had a fracture here, or we had a detached condyle, or we had a fragment that needed to be removed in order to relieve her pain."

He testified further:

"This is when we informed the patient that she had either a fracture or a chip there and that an operation was going to be needed to explore the area and see what needed to be done."

His interpretation of the x-rays was:

"There was a question, irregularity there, that usually is not present."

The fact that the doctor did not state which of the three different conditions was obvious to him, and his admission of the question or irregularity in the x-rays, would seem to indicate the necessity of taking additional x-rays before performing the operation. Oliva said that he explained to Barbara what type of operations could be done, depending on what was there. His frequent use of the pronoun "we" throughout his testimony referred to himself, as he alone performed the surgery.

Barbara testified that she "asked him Oliva why he knew right away that I had a fracture when at the hospital they said it was not fractured and he said that they didn't know how to read x-rays at the hospital."

Barbara further testified that Oliva told her it would be a very minor operation and that she would be up and able to eat within three or four days, and could return to school the following Monday after the operation. He told Barbara and her mother that he would make a small incision on the left side of her face and repair the condyle. Barbara's mother and husband testified that he told them substantially the same thing. They testified that Oliva did not tell them that he was going to operate on both left and right condyles. But on his own office record, Oliva made a notation on October 16 that if her condition did not improve he "will resort to a bilateral condylectomy."

Oliva performed the surgery on Barbara on October 26, 1967. He wrote the following findings and procedure in the hospital record:

"This patient had had a blow approximately six weeks prior and has had severe trismus with difficulty TM joint pain."

Procedure, "Under suitable general anesthetic the patient was prepped and draped in the usual manner. Through a curved incision in the right temporal, the condyle was exposed and the condyle was removed in routine manner. Following adequate repair, the capsule was closed, and routine plastic closure carried out utilizing 4-0 plain and 6-0 nylon. Sterile dressing was applied. The patient tolerated the procedure well and was sent to the recovery room in good condition. This was done bilaterally." (App. at 248)

The record would seem to indicate that Oliva first repaired the right condyle, which was healthy and actually required no repair work. He then operated on the left, which he thought was fractured, or dislocated, or fragmented. His testimony, however, contradicts the record, for he testified that he operated first on the left condyle.

He testified that the top portion of the left condyle was stuck. He removed the left condyle and clipped it. This, he testified, shortened the condyle and would cause a cross bite. He testified that in order to effect a balance between the condyles, he operated and clipped the healthy right condyle so that both condyles would be of the same length. The trouble with this latter procedure is that it resulted in an open bite. She now has occlusion on only four teeth in the back of her mouth, i.e., on the rear two teeth on each side; there is no contact whatsoever with the front teeth. She is unable to close her mouth and it remains open. This condition is permanent. She continues to suffer pain. She can open her mouth only about 11/16 of an inch. The normal opening is one and one-half to two inches. She can eat only soft food.

Oliva prescribed an Ace bandage in order to bring her teeth into occlusion, but it did not work. He also told her to chew gum. She saw Oliva about four times after the surgery, and then she consulted Dr. Carl Sammarco, an oral surgeon, at her home in New Jersey. Dr. Sammarco prescribed a wiring process in an attempt to bring the teeth into occlusion.

At the trial there was read into evidence the deposition of Dr. Carl Sammarco, who practiced in Asbury Park, New Jersey. He testified that he called Dr. Oliva on the telephone and asked him why he had done a bilateral condylectomy, and that Oliva replied it was to balance the joints. Sammarco told Oliva that was rather unusual. Oliva disagreed and said it was not unusual and that there was nothing to worry about because the condyles will grow back. Oliva did not, however, name any such operation that he had ever performed. In some forty or fifty fractured condyles treated by Dr. Sammarco, he found it necessary to operate on only one. Dr. Sammarco testified that the x-rays of Barbara showed two normal condyles. He could not see how Dr. Oliva could determine by clinical examination the presence of a fragment which was not large enough to appear on an x-ray. Sammarco testified that he had never heard of doing a condylectomy on a normally functioning joint.

Dr. Sammarco further testified that an Ace bandage, as prescribed by Dr. Oliva, had long been discarded as useless to bring about occlusion.

Two oral surgeons, Dr. Carson Blevins and Dr. Edwin Smith, from the area of Johnson City, Tennessee, were called as expert witnesses for plaintiff. Both doctors testified that they were familar with the practice of oral and plastic surgery as it pertains to the area of the jaw, in the locality of Johnson City.

Dr. Carson Blevins testified that as a result of the operation, Barbara could open her mouth only about 11/16 of an inch; the normal opening is one and...