Collins v. Itoh, 12204

• Decision Date: 17 November 1972
• Docket Number: No. 12204,12204
• Citation: 160 Mont. 461,503 P.2d 36
• Parties: Ruby COLLINS, Plaintiff and Appellant, v. Yokichi ITOH, Defendant and Respondent.
• Court: Montana Supreme Court

Page 36

503 P.2d 36

160 Mont. 461

Ruby COLLINS, Plaintiff and Appellant, v. Yokichi ITOH, Defendant and Respondent.

No. 12204.

Supreme Court of Montana.

Submitted Sept. 18, 1972.

Decided Nov. 17, 1972.

38 Berger, Anderson, Sinclair & Murphy, Billings, James P. Murphy argued and Arnold A. Berger appeared, Billings, for plaintiff-appellant.

Berg, O'Connell, Angel & Andriolo, Bozeman, Charles F. Angel, argued, Bozeman, for defendant-respondent.

JOHN C. HARRISON, Justice.

This is an appeal by plaintiff in a medical malpractice action from a directed verdict for the defendant, entered in the district court of the sixth judicial district, county of Park, Honorable W. W. Lessley presiding. Trial, with a jury commenced in Livingston on November 15, 1971.

Plaintiff, Ruby Collins, had been suffering many years from a thyroid problem and taking medication for the condition. In 1964, her condition deteriorated to the point that Dr. Allen Goulding of Billings recommended surgery. Following the recommendation plaintiff consulted defendant, Dr. Yokichi Itoh in August 1964, in Livingston, in regard to a thyroidectomy. On September 11, 1964, defendant performed the thyroidectomy. On the second or third day after the operation, plaintiff exhibited signs of what was later determined to be hypoparathyroidism, characterized by cramping, numbness, and nuscle spasms. Defendant believed this to be a transient condition, requiring treatment with calcium gluconate and calcium tablets.

Defendant did not receive a pathologist's report on the thyroidectomy until four or five days after the operation. At that time, Livingston Memorial Hospital did not have a 'true resident' pathologist. The tissue had been taken to Bozeman for analysis. When the report was received, defendant became aware that he had removed a parathyroid gland during the thyroidectomy. Plaintiff maintained defendant informed her that he had done so by mistake; defendant denies such a statement. Defendant asserted that he merely told her he had removed a parathyroid. After plaintiff's discharge from the hospital, her condition did not improve. Defendant increased the plaintiff's calcium dosage. In February 1965, plaintiff contacted Dr. Goulding for his advice. Dr. Goulding conducted several tests and suggested to defendant that plaintiff be given more calcium and vitamin D. This treatment continued until September 1967, when plaintiff moved from Livingston to Billings. The last time defendant saw plaintiff, he told her she must continue taking the calcium pills the rest of her life. She claimed she did not know that this was a result of the operation. It is admitted by the defendant that at no time did he inform plaintiff that any risks were involved in a thyroidectomy.

In June 1968, plaintiff consulted Dr. Sidney Hayes, Jr., of Billings, for treatment of her condition. Plaintiff told Dr. Hayes she was taking 35 calcium pills per day for her parathyroid condition. Plaintiff contends that it was not until this time that she became aware of what caused her condition, i. e., the removal of the parathyroid. Plaintiff said Dr. Hayes told her the problem was low calcium because of parathyroid removal. Plaintiff continued under Dr. Hayes' care until August 1968. Shortly thereafter, plaintiff filed her complaint in this action.

Plaintiff contends she has tried to return to work but painful cramps in her hands and legs, caused by low calcium levels in her blood, have prevented her from continuing in any position. Plaintiff claims she is incapable of performing even simple maid work. In the interim, between the date of filing the complaint and the date of trial, plaintiff has twice been hospitalized due to her parathyroid condition. Defendant contends that these incidents were caused by plaintiff's failure to faithfully take her calcium tablets, as defendant told her she must do, and which plaintiff admitted she did not always do, alleging that these quantities of calcium tablets cause illness.

Plaintiff maintained that defendant was negligent in the following particulars: (1) removal of parathyroid tissue during thyroidectomy; (2) failure to inform plaintiff of risks in such surgery; (3) after removal of parathyroid tissue, failure to inform plaintiff of the consequences of removal; (4) failure to consult experts and medical texts before or after post-operative treatment; (5) failure to prescribe proper post-operative treatment; and (6) failure to perform surgery where a pathologist's services were immediately available. Defendant denied all allegations and raised the statute of limitations as a defense.

We have made a careful analysis of the facts in a light most favorable to the plaintiff. However, in a correct application of the law to the facts, we can find no support for overturning the directed verdict for defendant. There can be little question that plaintiff was indeed injured. Testimony clearly indicated she must continue to take medication for the rest of her life. But the mere fact she suffered an injury is not enough. 'The law does not presuppose that for every injury there must be a recovery in damages.' Loudon v. Scott, 58 Mont. 645, 653, 194 P. 488, 491, 12 A.L.R. 1487; Negaard v. Estate of Feda, 152 Mont. 47, 52, 446 P.2d 436. For the plaintiff to recover there must be a breach of a legal duty owed to her by defendant, which proximately caused her injury. Loudon, supra; Negaard, supra.

We will consider plaintiff's allegations of negligence individually. The pretrial order lists the removal of the parathyroid as the first item of negligence, relied upon by plaintiff.

Statistical evidence from medical journals presented at trial indicated that removal of parathyroid tissue occurs in one-half of one percent to three percent of the cases. The rare incidence of such occurrence alone does not indicate any negligence on the part of defendant. Salgo v. Leland Stanford Jr. University Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170, 177; Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756. After recognizing those percentages, the following testimony was elicited from plaintiff's witness, Dr. Movius:

'Q. The fact that this (removal of parathyroid tissue) occurs surgically in whatever the small percentage is, that doesn't necessarily indicate, does it, there was any lack of care on the surgeon's part in performing that particular surgery, does it? A. No, I don't think so. Especially if it's for cancer or re-operation.

'Q. Well, what I'm getting at, in any particular case, without knowing all the details of the surgery, you can't just say that because a parathyroid was removed it was due to lack of care, can you? A. Oh, no.'

And again, on redirect and recross examination.

'Q. Doctor, if we can assume that the statistics of from one-half of one percent to three percent of thyroidectomies include removal of parathyroid tissue, and if we further assume that these statistics include the cancerous, the re-operation and the unskilled hands, is it reasonably medically probable that in non-cancerous, non-re-operation situation, in skilled hands, that the percentage would be far less or nonexistent? A. The literature says in skilled hands, for the first operation, the incidence of hypoparathyroidism is rare.

'* * * 'Q. Doctor, the fact that the incidence is rare does not mean that-it does occur, though. A. Yes.

'Q. Yes, and that doesn't necessarily mean that when it does occur it's a lack of due care, does it? A. No, it could be an anomalous condition. Although the incidence-Well, I can only speak for myself. It's never happened to me in a thousand operations.'

In his final analysis, Dr. Movius testified that even though the occurrence of the removal of parathyroid in a thyroidectomy is rare, it is no indication in itself that it is the result of negligence. There was no evidence upon which a jury could predicate a finding that the removal was due to negligence.

Plaintiff's second allegation of negligence was defendant's failure to inform plaintiff, in advance, of the risks of such surgery. It is, course, the prevailing rule that where a patient is in such physical health as to be able to consult about his condition, his consent is a prerequisite to surgical operation. 70 C.J.S. Physicians and Surgeons § 48. Such consent is a not a mere rubberstamp of the physician's recommendation. Each man is considered master of his own body and may request or prohibit even lifesaving surgery. The law will not allow a physician to substitute his own judgment, no matter how well founded, for that of his patient. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093.

This Court has considered the 'informed consent' doctrine recently in two decisions: Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d 436, and Doerr v. Movius, 154 Mont. 346, 349-350, 463 P.2d 477. In both cases we recognized the same rule. In Doerr, the court stated:

'The general rule on informed consent was set forth by this Court in Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d 436, 25 St.Rep. 632. The duty to disclose to assure that an informed consent is obtained was recognized and described an a matter of medical judgment. This duty to disclose was limited to those disclosures which a reasonable practitioner would make under similar circumstances. If the doctor obtained an informed consent and proceeded as a competent medical man would in a similar situation, his course of action should not be questioned.

"The gist of the 'informed consent' theory of liability is that a physician is under a duty under some circumstances to warn his patient of known risks of proposed treatment so that the patient will be in a position to make an intelligent decision as to whether he will submit to such treatment." (Emphasis added.)

The question here then becomes whether a one-half of one precent to three percent incidence of hypoparathyroidism in a thyroidectomy is a 'known risk', and whether a 'reasonable' practitioner would...