Caron v. Pratt

• Decision Date: 23 April 1975
• Citation: 336 A.2d 856
• Parties: Carroll CARON v. Dr. Loring PRATT.
• Court: Maine Supreme Court

Page 856

336 A.2d 856

Carroll CARON v. Dr. Loring PRATT.

Supreme Judicial Court of Maine.

April 23, 1975.

Jerome G. Daviau, Waterville, for plaintiff.

Mahoney, Robinson, Mahoney & Norman by Lawrence P. Mahoney, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

POMEROY, Justice.

This action, charging defendant with malpractice, is before us on appeal from the direction of a verdict for the defendant.

We deny the appeal.

The plaintiff underwent a tonsillectomy, performed by the defendant, on September 29, 1966. No apparent complications having developed, plaintiff was discharged from the hospital shortly thereafter. His readmission five days later was occasioned by the fact that he was experiencing some bleeding while at home.

During the early morning hours of October 5, he began 'spitting up blood.' He was seen in the hospital by the defendant, who anesthetized him and 'sutured the bleeding blood vessel.' Later, during the afternoon of the same day, another more serious bleeding episode occurred. The defendant was not in the City at the time but was notified by telephone of plaintiff's condition. He discussed the case with another physician on duty at the hospital, requesting him to look after plaintiff until he could get there. By the time defendant arrived at the hospital a surgical procedure involving an incision in the neck and ligation of part of the branches of the external carotid artery had been partially completed. The attending surgeon's report included the following findings:

'There were two fair-sized holes in what appeared to be a large vessel, and they were pumping out blood. It was impossible to put any sutures in this region.'

Plaintiff's condition stabilized somewhat thereafter, although two subsequent bleeding episodes on October 10th and October 14th required further suturing, and eventually ligation of all remaining major branches of the external carotid artery. On October 31, 1966, plaintiff was discharged from the hospital.

At trial, plaintiff availed himself of the provisions of Rule 43(b) M.R.Civ.P., which allowed him to call the defendant as his witness, interrogate him by leading questions, and impeach and contradict him in all respects as if he had been called by an adverse party. His obvious purpose in doing so was to elicit from the defendant himself those facts which would prove the latter's failure to exercise reasonable care in his treatment of the case.

Defendant testified essentially that the surgical procedure he employed in this case was the same normal careful procedure he had employed in performing over 8,000 other tonsillectomies.

It was his experience, he testified, that in the ordinary course of post-operative healing, all tonsillar fossae became infected to a greater or lesser degree, causing some necrosis of the blood vessels in the localized area. He attributed the two holes in plaintiff's artery to this 'infectious process' in the throat region which erodes the blood vessels.

That the holes could not have been caused by any manual imprecision during the original surgery was patent, in his opinion, because

'If you create a hole and rent at the time of surgery in an artery like this, you would be flooded with blood, so you would know it right then, and you wouldn't find it out seven days later.'

To discredit defendant's testimony attributing plaintiff's bleeding to a diseased blood vessel, plaintiff offered into evidence a deposition taken from a Massachusetts physician specializing in internal medicine and neurology. That deposition read, in material part:

'Question: Now, first Doctor, whether an artery which has a rent or a hole in it can this occur without trauma?

The Witness: No, it cannot.

Question: Now once there is a rent or hole can it be sutured and closed?

Answer: Yes, the artery can be sutured.'

The trial Justice sustained defendant's objection to the admission of the proffered deposition on the grounds the physician

'. . . does not describe what he contends would be a type of rent or hole he was talking about, he does not refer to the records or the notes of the review of the material that was made available to him. He does not in any way describe what he called 'trauma,' whether it is from an outside force, or a result of a disease. And he does not qualify as an expert in the field of otolaryngology.'

Plaintiff did not present any medical or expert testimony other than the disputed deposition.

At the close of plaintiff's evidence, the Court in directing a verdict for defendant, observed that neither party had called to the stand the two surgeons who had treated plaintiff in defendant's absence although both physicians were present and available as witnesses throughout the trial. The defendant's testimony assigning the cause of plaintiff's bleeding to an unavoidable infection was therefore not contradicted by any direct medical evidence attributing the bleeding to any act or omission on the part of the defendant.

With the evidence in this posture, the plaintiff had failed to establish a case which would warrant submission of the issue of defendant's negligence to the jury.

The doctrine of res ipsa loquitur was unavailable to plaintiff in the opinion of the Court, because

'Negligence on the part of physicians and surgeons by reason of their departure from the recognized standards of practice has to be established by medical testimony. Negligence will not and cannot by presumed and cannot be inferred from the occurrence alone, and there is testimony only that the patient developed an infection in the area under treatment, and this does not in and of itself raise a presumption or inference of negligence.'

We consider the ruling of the trial Justice to be substantially a correct statement of the law of this State.

Plaintiff advances the argument that the deposition of the Massachusetts specialist constituted legally competent expert evidence that the unusually excessive bleeding could not have been caused by disease. Therefore, he says, its admission would have generated an issue for the triers of fact.

Failing a favorable ruling on the admissibility of the deposition however, plaintiff places his reliance on the doctrine of res ipsa loquitur. That rule, he urges, operates to supply an inference of negligence, sufficient to take the case to the jury notwithstanding the absence of any direct medical evidence to indicate that plaintiff's damage was caused by the failure of defendant to exercise reasonable care and diligence in his treatment of the case. Specifically, plaintiff claims the introduction of evidence that 'unusual' and unexplained bleeding occurred coincidentally with the performance of surgery performed by the defendant, standing alone, raises an inference of the latter's negligence.

Established by the evidence was (a) that the defendant had performed a tonsillectomy, (b) that following the surgery there was unusual bleeding from the area of the tonsillectomy, and (c) two rents or holes were observed in an artery some five days after the surgery from which holes there was excessive bleeding.

The gap between the evidence and legal liability becoming fixed on the defendant was that there was no evidence in the case establishing causal connection between defendant's conduct and the unusual post-surgical happenings.

The question then becomes, had the deposition of Dr. England been received in evidence, would it have closed the gap and thus created an issue for a decision of the jury?

The relevant portion of Dr. England's deposition was that the rents or holes could not have existed without trauma. At no time did he explain what he meant by 'trauma.' There was no evidence in the case which could permit a reasonable jury to conclude that the defendant had not employed acceptable surgical procedures.

We consider the...