Cebula v. Benoit, WD

Decision Date17 May 1983
Docket NumberNo. WD,WD
PartiesEugene CEBULA, Plaintiff-Appellant, v. Hector W. BENOIT, Jr., M.D., Defendant-Respondent. 33664.
CourtMissouri Court of Appeals

Dean F. Arnold (argued), L.D. Mayo, Jr., Kansas City, for plaintiff-appellant.

Gail L. Fredrick (argued), Freeman, Fredrick, Bennett & Rogers, P.C., Springfield, for defendant-respondent.

Before PRITCHARD, P.J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

Plaintiff appeals from a judgment directing a verdict in defendant's favor at the close of plaintiff's evidence in this medical malpractice case resulting from the loss of a needle fragment in plaintiff's chest during surgery. Plaintiff argues that the trial court erred in directing a verdict because substantial evidence existed from which a jury could have returned a verdict in his favor even absent expert medical testimony, and that the court erred in ruling that a registered nurse was not competent to testify to standard medical practice as to the removal of foreign objects from a patient's body. We affirm.

At trial, plaintiff presented three witnesses: the defendant, Dr. Benoit; the plaintiff, Mr. Cebula; and a registered nurse, Gail Ann Scott.

Dr. Benoit testified that he is a thoracic surgeon and has performed five to six thousand thoracotomies (open chest procedures). He operated on the plaintiff on January 4, 1979, to remove a partially solid, partially cystic benign tumor of the thymus gland. In doing so, he made a 10"' midline chest incision, split the sternum (chest bone), and removed the tumor with little difficulty. Following the removal, he began to pull the sternum back into place by stitching the two halves together with wire sutures, using wire to which an extremely sharp needle was secured as an extension of the suture.

Shortly after he began stitching, Dr. Benoit realized that the needle point had broken, leaving him with only half a needle. Concerned that the point may have fallen into the chest cavity, he lifted an edge of the sternum and examined the cavity both visually and by feel. He called for a magnet to be brought into the operating room to search for the needle fragment on the floor. The search was unproductive.

Dr. Benoit "was convinced that if it were in the patient, and I did not know for sure that it was, that it was absolutely not in any area where it could possibly do this patient any harm." Nevertheless, he felt that "we ought to have a chest x-ray for sure." Although it would have been physically possible to x-ray Mr. Cebula's chest in the operating room with a portable x-ray machine, Dr. Benoit decided against the procedure while the chest cavity was still open. He testified that he reached this decision "because this man's front of his chest was laid wide open and to introduce an x-ray machine which is not sterile, even though we might protect the chest wall, I was afraid that there would be an increased possibility of getting an infection in this man's chest."

Dr. Benoit further testified that he considered opening up the patient's chest wall further to make a diligent search for the needle, but rejected that alternative as well. He did so because "to go back would involve another incision, disrupting the two previously sutured together segments of sternum ... render[ing] it unstable." The already existing incision "wouldn't permit any exploration unless I divided it in order to get between the ribs to find it [the needle], and it would have been a matter of just chewing up this man's chest wall for no real gain. I was thoroughly aware of this when I made the decision to close his chest wall without knowing for sure where the needle was."

Dr. Benoit finished suturing the sternum and following the operation, x-rayed the chest. The needle was clearly visible directly behind one of the wire sutures.

Dr. Benoit testified that he did not inform Mr. Cebula of the presence of the needle during his hospital stay, because he did not wish to upset him. Mrs. Cebula was informed immediately following surgery and told not to be concerned.

On January 26, 1979, three weeks after the operation, Dr. Benoit informed Mr. Cebula of the needle in his chest during a post-operative visit. The patient record on that date showed that the doctor noted, "I predict it [the needle] will cause no trouble any more than his transsternal wires will." Although Mr. Cebula complained at that visit of discomfort and difficulty sleeping, Dr. Benoit testified that such complaints are not unusual for chest surgery patients.

On February 16, 1979, the patient record showed that Mr. Cebula was much better, but "remains very apprehensive about his mild discomforts." The patient also reported a new symptom, postural hypotension (dizzy feelings following a sudden change in position), said by the doctor not to be unusual in people over fifty-five.

On May 18, 1979, the patient record showed that Mr. Cebula had local wound complaints thought by the doctor to be "of no significance." Dr. Benoit noted, "I think he is well."

On January 1, 1980, Mr. Cebula was diagnosed by Dr. Benoit as "totally asymptomatic" with no complaints. New x-rays indicated that the needle was not migrating through the body.

The doctor testified that, in his opinion, the needle would not migrate first, because "there is no real motion in this portion of the body," second, because the needle's curvature made it unlikely that it would move in a straight line, and third, because the x-rays showed that the lower wire around the sternum encompassed the needle, anchoring it in place.

Finally, Dr. Benoit testified that it was possible that the presence of the needle could cause a mental reaction, disturbing Mr. Cebula "in spite of all the reassurance he was given."

The plaintiff, Mr. Cebula, testified that the needle in his chest did not hurt, and that as long as he kept busy it did not bother him. Although he experiences no pain, he stated that he feels uncomfortable in one spot. His major complaint was that "it still bugs me today," causing him to wake up at night thinking about it, and keeping him awake for an hour and a half or more.

In spite of an "uneasy, queasy feeling", Mr. Cebula worked in the same capacity both before and after the operation as a merchandising manager for Sears, felt undisturbed about the needle as long as his mind was occupied, and continued to be able to play golf and mow the lawn.

Plaintiff's final witness was Gail Ann Scott. She testified that she was a registered nurse and had completed her nurse's training in 1976. She was employed at Shawnee Mission Medical Center in the intensive and coronary care department, with some surgical experience as both a circulating nurse and a scrub nurse. She had observed several chest operations.

Plaintiff's counsel asked Ms. Scott, "Is there any accepted medical practice in the medical profession to remove a foreign body from the chest cavity?" Defendant objected on the basis that she was not competent to testify concerning the procedure.

Plaintiff then made an offer of proof in which Ms. Scott answered the same question, "Yes," and stated, "I can't imagine a case where you would permit a needle to stay in once you know its there." She further stated that orthopedic surgeons commonly use x-ray machines in surgery using certain techniques to avoid infection, such as sterile toweling over the area or plastic drapes over the machine.

Following the offer of proof, the court sustained the objection to Ms. Scott's competence as an expert but permitted her to testify that she had observed the use of x-ray machines in both orthopedic and abdominal surgery. On cross, she testified that she had no training in chest surgery and had never assisted in surgery where the sternum was split.

At the close of plaintiff's evidence, defendant moved for a directed verdict. The court stated that the plaintiff was asking the jury to speculate as to whether other surgeons under the same circumstances would or would not remove a broken end of a needle, and granted the motion.

On appeal, plaintiff argues (1) that the trial court erred in directing the verdict because expert medical testimony is not required in cases where foreign objects are left in operative cavities and (2) that even if expert testimony is required, the offered testimony of nurse Gail Ann Scott would have adequately provided that testimony.

We note first that in reviewing the granting of a motion for directed verdict at the close of plaintiff's evidence, we must consider whether plaintiff has presented substantial evidence sufficient to require submission to the jury. In doing so, we view the evidence most favorable to plaintiff and indulge all reasonable inferences to be drawn in his favor. Kaelin v. Nuelle, 537 S.W.2d 226 (Mo.App.1976).

In a medical malpractice case, plaintiff must present sufficient evidence to establish first, a causal connection between the act or omission of the physician and the claimed injury, second, proof that the act or omission was negligently performed, and third, proof that the physician failed to meet the requisite medical standard of care. Langton v. Brown, 591 S.W.2d 84 (Mo.App.1979).

The standard of care has been defined as "that degree of care, skill and proficiency which is commonly exercised by the ordinarily careful, skillful and prudent surgeon engaged in similar practice under the same or similar conditions." Hart v. Steele, 416 S.W.2d 927 (Mo.1967). See also Gridley v. Johnson, 476 S.W.2d 475 (Mo.1972), and MAI 11.06.

The general rule is that where the exercise of the proper degree of care and skill of a physician is at issue, expert medical testimony is essential. Langton v. Brown, supra, at 88; Hart v. Steele, supra, at 931; Morgan v. Rosenberg, 370 S.W.2d 685, 693 (Mo.App.1963). The rationale for this rule is that absent guidance on issues requiring specialized knowledge beyond that common to laymen, "juries will be cast into a...

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