Carter v. Shirley
| Decision Date | 02 April 1986 |
| Citation | 488 N.E.2d 16,21 Mass.App.Ct. 503 |
| Parties | Virginia Nolan CARTER et al. 1 v. Robert L. SHIRLEY. |
| Court | Appeals Court of Massachusetts |
Judith Farris Bowman, Cambridge, for plaintiffs.
Nancy L. Watson, Arlington, for defendant.
Before GREANEY, C.J., and GRANT and PERRETTA, JJ.
In her malpractice claim, the plaintiff alleged that the defendant, an obstetrician-gynecologist, had negligently diagnosed and treated a condition occurring as the result of the birth of her first child. The condition allegedly led to a fistula in ano 2 which a second doctor repaired through surgery. The surgery, however, was not entirely successful. At trial, before a jury in the Superior Court, experts testified on both sides of the question of malpractice. The jury found for the defendant. We reverse the judgment because of the trial judge's failure to instruct the jury, over the timely request and specific objection of the plaintiff's counsel, that, if found negligent, the defendant could also be found responsible for any additional injury caused by the doctor who performed the surgery.
1. Background facts. On May 7, 1977, about 8:00, the plaintiff was admitted to Boston Hospital for Women, Lying-In Division, under the defendant's care for the birth of her first child. After over twelve hours of labor, the baby was about to be born. The defendant placed forceps around the baby's head and pulled gently. He also performed an episiotomy to prevent a perineal tear. 3 The defendant applied the forceps again and enlarged the episiotomy. He made a third cut just under the perineal skin after inserting the forceps a third time. Despite these precautionary measures, the plaintiff's perineum tore to the anoderm 4 as the baby's head was delivered. (The degree of the tear was a major issue at trial: the plaintiff and her expert stated that it was a fourth-degree laceration [a deep tear involving a rupture of the sphincter and the underlying mucous membranes of the rectum], while the defendant and his experts maintained that there was only a second-degree laceration [that is, a tear at the skin and subcutaneous levels].)
The area remained swollen and purplish for a week after the plaintiff returned home. Almost a month later, she observed two holes that drained shiny, then murky, fluid from her perineum. The defendant saw these holes during two office visits, treated them with silver nitrate, and recommended estrogen cream and sitz baths. The condition did not improve. On the plaintiff's third postpartum visit in July, 1977, the defendant diagnosed a fistula in ano and, according to the plaintiff, offered to unroof it 5 in his office. The defendant claimed that the plaintiff declined the procedure, and he told her not to let the condition go untreated for more than two months.
The plaintiff sought a second opinion from Dr. Marvin Corman, a colorectal surgeon, who indicated that sitz baths would not heal the fistula and agreed that it had to be excised by surgery. The plaintiff then went to Dr. Donald P. Goldstein, an obstetrician-gynecologist, and selected him to perform the surgery. The operation was performed on August 31, 1977. Immediately after the surgery, Dr. Goldstein informed the plaintiff that he had encountered a small abscess 6 at the midpoint of the fistula that necessitated cutting a portion of her sphincter muscle. Dr. Goldstein advised the plaintiff that, as a result, she might be troubled by incontinence and that she might require further surgery. The prognosis of incontinence was accurate. 7
The medical evidence. Dr. Elizabeth L. Wilder, an obstetrician-gynecologist practicing in California, testified as an expert for the plaintiff. 8 She testified that she first examined the plaintiff in July, 1979. She found the plaintiff's perineal tissue very thin, observed a scar from her vagina to her anus, and felt a lack of rectal muscle. She stated these findings were consistent with the history provided by the plaintiff. Dr. Wilder further testified that the plaintiff had suffered a fourth-degree laceration that had not been recognized or repaired by the defendant. She based her opinion on the fact that a rectoperineal fistula had formed, 9 concluding that this type of fistula most likely occurs when an opening in the rectum caused by a fourth-degree laceration allows fecal matter and bacteria to pass from the rectum upward into the surrounding tissues, resulting in chronic infection and abscess. She also based her opinion on the fact that the skin incision was described as running from the introitus (opening of the vagina) to the anus. She stated that "it's highly unlikely that that would have occurred in the absence of the severing of the tissue behind that." She testified that, because plaintiff had no history of predisposing illnesses (including Crohn's disease), a likely cause of the fistula was an untreated fourth-degree laceration. Her conclusions were based on the history she took from the plaintiff (in which the plaintiff told Dr. Wilder that she had suffered a fourth-degree laceration) and her independent examination. Dr. Wilder concluded that the defendant had rendered substandard care when he failed to diagnose and treat a fourth-degree laceration. This neglect, in her opinion, caused the fistula that necessitated the operation that rendered the plaintiff incontinent.
Dr. Wilder also testified that the plaintiff's continued postpartum drainage might also have indicated a subskin infection that the defendant should have probed, drained and treated with antibiotics. In Dr. Wilder's opinion, the defendant's failure to undertake such treatment promptly was substandard and might also account for the formation of the fistula. Dr. Wilder testified that Dr. Goldstein had performed the surgery to repair the fistula competently.
Dr. Goldstein testified that the plaintiff had a fistula in ano, 10 and he described the surgery he performed to unroof it, including the cutting of the sphincter to remove the abscess. A written history taken from the plaintiff was introduced in evidence without objection. There, Dr. Goldstein recorded that the plaintiff had suffered a fourth-degree laceration. The plaintiff testified that she never told Dr. Goldstein that she had suffered a fourth-degree laceration. Dr. Goldstein testified, however, that that conclusion was not based on clinical information gathered from his examination of the plaintiff but on what the plaintiff had told him. He also related his opinion that the fistula was "somehow" related to the birth but ultimately concluded that the relationship was only "temporal."
Dr. Marvin Corman testified as an expert for the defendant. He maintained that he had found no clinical evidence of a fourth-degree laceration when he examined the plaintiff on August 22, 1977. He stated that a vaginorectal fistula, not a fistula in ano, was a result to be expected from a fourth-degree laceration. He concluded that the temporal proximity of the fistula's development to the birth was coincidental and that the care provided to the plaintiff by the defendant had met acceptable medical standards.
Dr. Corman also testified that the plaintiff's incontinence had been caused not by the defendant, but by Dr. Goldstein's misdiagnosis and treatment of the fistula. He indicated that the operation Dr. Goldstein performed had been unnecessarily radical. Dr. Corman also found it unacceptable that Dr. Goldstein cut the sphincter and did not immediately repair it. He maintained that, if the plaintiff had suffered an unrepaired fourth-degree laceration in giving birth, she would have become incontinent immediately. He therefore concluded that her incontinence had been caused by Dr. Goldstein, not by the defendant. 11
Instructions to the jury. In light of Dr. Corman's testimony that Dr. Goldstein, not the defendant, was responsible for the plaintiff's incontinence, the plaintiff made a timely request, see Mass.R.Civ.P. 51(b), 365 Mass. 816 (1974), for the following jury instruction:
The judge denied the request and instead instructed the jury on the topic of causation as follows: 12
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