Carthen v. Jewish Hosp. of St. Louis

Decision Date04 June 1985
Docket NumberNo. 48211,48211
Citation694 S.W.2d 787
PartiesJohn CARTHEN, Jr., Plaintiff-Respondent, v. The JEWISH HOSPITAL OF ST. LOUIS, Marshall Poger, MD. and Joseph Lombardo, MD., Defendants-Appellants.
CourtMissouri Court of Appeals

David C. Drury, St. Louis, for plaintiff-respondent.

Parks G. Carpenter, M. Jane Schweitzer, Dana D. Eilers, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Keaney, St. Louis, for defendants-appellants.

FRED E. SCHOENLAUB, Special Judge.

This action for damages arises out of an incorrect diagnosis of invasive adenocarcinoma by appellants, Marshall Poger, MD., and Joseph Lombardo, MD., pathologists and employees of appellant, The Jewish Hospital of St. Louis (hereinafter defendants), based on microscopic examination of esophageal biopsy specimens taken from respondent (hereinafter plaintiff) on December 5, 1979, at Jewish Hospital. A jury trial resulted in a verdict in favor of plaintiff in the sum of $2,500,000 upon which the court entered judgment. The judgment is affirmed.

On Thanksgiving Day 1979 plaintiff, John Carthen, Jr., experienced some difficulty in swallowing and a burning sensation in his chest. He went to Christian Hospital Northeast in St. Louis, where upper GI X-rays revealed an hiatus hernia with esophageal reflux. In early December 1979 his personal physician, Dr. Michael Orgell, referred him to Dr. Burton Shatz, a physician specializing in gastroenterology. On December 5, 1979, at Jewish Hospital, Dr. Shatz performed an endoscopy, which involved the passing of a flexible tube with a light and lens on it through plaintiff's mouth in order to permit a visual examination of the interior of his esophagus and stomach. In this examination Dr. Shatz observed inflammation of the lower part of the esophagus just above the point where it enters the stomach, some ulceration and a stricture, or narrowing, of the opening into the stomach. Dr. Shatz testified that this type stricture is usually caused by scar tissue and had probably developed over a period of several months. No tumors were seen by Dr. Shatz. The stricture was benign appearing and there was no area suspected of being malignant. Dr. Shatz then took biopsies of the esophagus, a standard practice when there is an inflammation and stricture. In taking the biopsy, a forceps was passed through the endoscope and pieces of tissue were pinched off in the area of inflammation, ulceration and stricture. These pieces of tissue were then sent to the pathology department at Jewish Hospital where they were processed and prepared for microscopic examination.

Dr. Lombardo made a diagnosis of invasive carcinoma or cancer. As a resident physician, he showed the slides to the senior pathologist, Dr. Marshall Poger. This review was routine, particularly when the diagnosis was cancer. Dr. Poger reviewed the slides and diagnosed poorly differentiated adenocarcinoma. He testified that the biopsy had nests of highly atypical gland forming cells which had invaded the underlying connective tissue, and that those cells, when they have so invaded, are invasive adenocarcinoma. Because plaintiff was somewhat younger than the majority of people with esophageal cancer, Dr. Poger showed the slides to a number of pathologists on the staff including Dr. Meyer, Dr. Gustave Davis and Dr. Robert McDivitt, the chairman of the department. Dr. Davis reviewed the slides and diagnosed adenocarcinoma of the esophagus. Dr. McDivitt was not as certain of the diagnosis as the others, but by the time the report went out to Dr. Shatz he was in agreement.

Dr. Richard Shaw was consulted to do the anticipated surgery. Dr. Orgell, Dr. Shatz and Dr. Shaw all went to the pathology department to review the slides and discuss the case. Dr. Shatz, who had training in pathology, diagnosed cancer and testified that he would not rely on what he personally diagnosed, but would defer to the judgment of the pathologists. Dr. Shaw also reviewed the slides and agreed with the diagnosis of cancer, although as a surgeon he would not rely on his own ability to diagnose cancer from the slides. Numerous other tests were performed to determine whether the cancer had spread outside the confines of the planned operation. They were negative, indicating a greater chance of a successful operation.

Plaintiff was advised by Dr. Shaw of the nature and extent of the surgical procedure intended, which involved opening the chest in the area of the ribs and performance of an esophagogastrectomy, removing the lower part of the esophagus and upper part of the stomach and tying the remaining ends together, a procedure which can result in long-term complications including incisional pain, nausea, belching, bloated feelings after eating, vomiting, diarrhea, and loss of weight.

In the operation on December 26, 1979, the distal part of plaintiff's esophagus and the proximal portion of his stomach were removed, along with a rib and some fatty tissue. The resected specimen was sent to the Jewish Hospital pathology department. Nineteen slides were made from representative samples of this tissue. No cancer was found in any of the slides.

When the lower esophagus and upper stomach were removed, nerves which control the muscular activity of the stomach and the ability of the stomach to produce acid were cut. The remaining stomach no longer has a propulsive activity. At the same time as the esophagogastrectomy, a pyloroplasty was performed in order to enlarge the opening from the stomach into the intestine, thereby allowing the stomach to empty better.

After plaintiff's first operation he was refluxing bile and pancreatic juices. On June 9, 1980, an antrectomy was performed at Jewish Hospital wherein the lower one-third of his stomach was removed. A Roux-en-Y operation was also performed in an attempt to stop the reflux. A valve mechanism was created and the intestines were rearranged in an attempt to divert the bile and pancreatic juices farther "downstream" so there would be less likelihood of regurgitation into the stomach and esophagus.

Defendants first allege error by the trial court in failing to grant their Motion for Judgment Notwithstanding the Verdict or for New Trial because of the trial court's error in the admission of testimony by plaintiff's witnesses Doctors Michael J. Lotz and Irwin A. Oppenheim. They contend they were deprived of their discovery rights prior to trial regarding the opinions of the doctors and the bases therefor because of the refusal of plaintiff's attorney to permit, and the court to order, use during the depositions of reports the doctors had made to plaintiff's attorney. Defendants contend the doctors testified that their own recollections were faulty, and that revival of their memories was sought by reference to the reports. They further contend that because the doctors' memories were faulty, defendants should have been given access to the reports for their review and inspection before being utilized by the doctors for refreshment of their recollection. Defendants also contend their inability to see the reports resulted in their being prejudicially surprised at trial.

Plaintiff contends the doctors' reports were "work product" and not subject to discovery, and that had defendants desired only to refresh the doctors' memories, use of the biopsy slides would have served that purpose. A considerable portion of the depositions of Drs. Lotz and Oppenheim, 36 of 89 pages, concerned defendants' right to the reports and whether the reports or the slides, which the doctors had originally examined, would be used to refresh their recollection. Both the reports and the slides were available but not used during the depositions.

In his deposition Dr. Oppenheim did state that he could not remember if some of the slides were stained differently from the others, whether more than one stain was used in preparation of the slides, and whether all four slides showed focal ulceration with discontinuance of ordinary tissue. Use of the slides would have refreshed his memory on these points. He also testified, however, that he saw no evidence of what Dr. Poger had reported as "poorly differentiated adenocarcinoma," but that he did see tissue from the esophagus which showed evidence of inflammation and some atypia which you see in inflammatory conditions in that area, and that he saw an esophageal biopsy consistent with focal ulceration and chronic esophagitis, that focal ulceration is a distinction of normal tissue, "a cratered sort of an affair." He further testified that the physician making the report "deviated substantially from the customary practice." He also testified that he had no doubt that there was no cancer on the slides he examined, but that the slides of the biopsy of December 5 were consistent with focal ulceration, chronic esophagitis, severe dysplasia, and that dysplasia is "atypia" and can be seen as a result of inflammation, or it can be seen in the development in malignant neoplasms.

In the deposition of Dr. Lotz defendants' counsel asked, "As you sit here right now, can you remember the details of each of the 30 slides that you examined in this case, each of them?" The doctor's answer was, "No." The only question asked the doctor concerning his examination of the slides and the pathology report was, "Did you see any cancer on any of the slides that you looked at?" The doctor responded, "No."

Having made no attempt in the deposition to test Dr. Lotz' recollection of his examination of the slides and pathology reports, or to determine the matters about which he would testify at trial, defendants cannot now complain that they were taken by surprise at trial and were, therefore, unable to effectively cross-examine the doctor.

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