Cornfeldt v. Tongen

• Citation: 262 N.W.2d 684
• Decision Date: 30 December 1977
• Docket Number: No. 46074,46074
• Parties: Jerome CORNFELDT, as Trustee for the Next of Kin of Phyllis Cornfeldt, Deceased, Appellant, v. Lyle TONGEN, Respondent, Ronald Beals, et al., Respondents, Robert C. Knutson, Respondent, Ayerst Laboratories, Incorporated, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 684

262 N.W.2d 684

Jerome CORNFELDT, as Trustee for the Next of Kin of Phyllis Cornfeldt, Deceased, Appellant, v. Lyle TONGEN, Respondent Ronald Beals, et al., Respondents Robert C. Knutson, Respondent Ayerst Laboratories, Incorporated, Respondent.

No. 46074.

Supreme Court of Minnesota.

Dec. 30, 1977.

Syllabus by the Court

1(a). Failure to possess a license to practice medicine does not alone disqualify a witness from offering an expert medical opinion. An expert medical witness must have some scientific knowledge of and some practical experience in the field of medicine in question to testify to a deviation from accepted medical practice.

(b). If a defendant is otherwise qualified as an expert, he may be required as an adverse witness to testify whether the actions of a codefendant conformed to accepted medical practice.

2. In the instant case, when part of the testimony of an expert witness was stricken and that testimony was so intertwined with admitted testimony of the witness that a substantial likelihood of jury confusion existed as to the evidence received, the trial court should have instructed the jury on the testimony of the witness admitted.

3. A trial court should seek a remedy short of exclusion of testimony to alleviate prejudice resulting from an inadvertent failure to disclose the identity of an expert witness during the discovery process.

4. A surgeon had no duty to consult a liver specialist if through his negligence he failed to recognize that preoperative test results indicated the presence of liver disease. A duty of consultation does not arise from failure to apply the knowledge ordinarily possessed by doctors in the field of practice.

5. We recognize a cause of action for negligent nondisclosure of risks attendant to proposed or alternative methods of treatment. A duty of disclosure arises only if the physician knew or should have known of the risks to be disclosed. If a physician fails to disclose a risk that would have been disclosed under accepted medical practice or is a "significant" risk, he has been negligent in informing his patient. The negligence is actionable if a reasonable person in the plaintiff's position would have refused the treatment had he been informed of the undisclosed risk.

6. In the circumstances of this case, a diagnosis of halothane hepatitis contained in decedent's hospital record was properly excluded because it was an unusual opinion rendered by a nontestifying expert.

7. A medical witness who testifies to the adequacy of a warning accompanying a drug may be impeached by a subsequent decision of the United States Food and Drug Administration authorizing the drug manufacturer to remove the warning from the "stuffer sheet."

8. An accreditation manual that established standards for patient care at defendant hospital was material and relevant evidence of the standard of care required of defendant doctors.

9. The trial court erred in ruling as a matter of law that the pecuniary loss caused by decedent's death could be measured by no more than a 40-hour work week.

10. The trial court properly granted directed verdicts for defendants surgical resident, hospital, and drug manufacturer, because plaintiff failed to establish that their alleged negligence was a proximate cause of decedent's injury.

11. Defendants did not merit more than two peremptory jury challenges.

Robins, Davis & Lyons, Solly Robins, John F. Eisberg and Robert M. Wattson, St. Paul, for appellant.

Richards, Montgomery, Cobb & Bassford, Charles A. Bassford and Robert Merrill Rosenberg, Minneapolis, for Tongen.

Altman, Geraghty, Mulally & Weiss, James W. Kenney and James R. Gowling, St. Paul, for Beals, et al.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, and O. C. Adamson II, Minneapolis, for Knutson.

Lasley, Gaughan, Reid & Stich and Douglas Dale Reid, Jr., Minneapolis, for Ayerst.

Considered and decided by the court en banc.

KELLY, Justice.

Plaintiff appeals from an order of the district court denying his motion for a new trial or, in the alternative, judgment notwithstanding the verdict, and from the judgment for defendants. We affirm in part, reverse in part, and remand for a new trial.

This is an action for wrongful death, charging medical malpractice in the care and treatment of Mrs. Phyllis Cornfeldt, plaintiff's decedent. The basic facts are undisputed. Late in the evening of June 24, 1973, Mrs. Cornfeldt, complaining of severe abdominal pain, entered Miller Hospital in St. Paul. Dr. Ronald Beals, a first- year surgical resident, examined her, ordered tests and X-rays, and determined that she was suffering from a perforated ulcer requiring emergency surgery. Mr. and Mrs. Cornfeldt did not know any surgeons, but selected Dr. Lyle Tongen from a list of surgeons offered by Dr. Beals. Dr. Tongen was called; he came to the hospital, examined Mrs. Cornfeldt, and confirmed Dr. Beals' diagnosis. Shortly thereafter, he operated on Mrs. Cornfeldt, assisted by Dr. Beals, and discovered a hole in the forward wall of the stomach. Because the cells surrounding the hole looked abnormal, Dr. Tongen called in a pathologist from the hospital to do a frozen-section analysis of the suspicious tissue, which was excised along with the ulcer. That analysis proved benign so the incision was closed. Mrs. Cornfeldt's recovery was smooth and uncomplicated, and she was discharged from the hospital on July 2. No negligence in the performance of this operation is alleged.

On July 16, 1973, her fiftieth birthday, Mrs. Cornfeldt went to Dr. Tongen for a postoperative checkup and learned that he recommended a second operation, a gastrectomy which would involve removal of a substantial portion of her stomach. An analysis by the pathology department of the hospital of a paraffin section had revealed that the suspicious cells removed during the earlier operation were "atypical." A slide of the tissue then had been sent to a professor of pathology at the University of Minnesota who determined that cancer was present. A gastrectomy was the only effective treatment to prevent the risk that the cancer might spread and to be effective it had to be done with reasonable dispatch. Cancer of the stomach is a very serious disease with a high mortality rate.

Mrs. Cornfeldt entered Miller Hospital on the afternoon of July 23, 1973. The gastrectomy was scheduled for the following morning. Routine laboratory tests were performed, and Dr. Beals examined her and recorded her history. Mrs. Cornfeldt appeared to be in excellent health and was clinically without symptoms. The results of the laboratory tests were recorded on her chart by the next morning. They were normal except in two pertinent respects: (1) On the SMA-12 graph (a battery of 12 tests of the blood), the alkaline phosphatase reading was 145, compared with a normal range of 30 to 85; and (2) the SGOT reading (which measures the level of serum glutamic-oxaloacetic transaminase) was "off the chart," with a reading above 250, compared with a normal range of 10 to 50. These tests are not in themselves specifically diagnostic, since they indicate increased levels of enzymes in the blood that may be caused by several organs. ¹ Additional tests were readily available, however, to pinpoint the diagnosis. ²

Dr. Robert C. Knutson, anesthesiologist for the operation, noted the abnormal readings and presumed that the cancer had already spread to Mrs. Cornfeldt's liver. He interviewed Mrs. Cornfeldt thereafter, but did not discuss the results with her or with anyone else. She told him that she had been happy with the anesthetic used for her first operation a combination of drugs whose principal agent was Fluothane ³ and Dr. Knutson decided to use this same anesthetic for the gastrectomy.

Dr. Tongen, the surgeon for the forthcoming operation, also noted the abnormal test results, but thought they were attributable to a spread of the cancer or to a mild postoperative peritonitis from the first operation. In any event, because of Mrs. Cornfeldt's excellent clinical condition and the relative urgency of the operation, he decided to proceed with the operation without ordering further tests and without discussing the results with Mrs. Cornfeldt or anyone else. He asked Dr. Beals to assist him during the operation. Dr. Beals did not recall looking at the test results before the operation; he did speak with Mrs. Cornfeldt the morning of the operation and she informed him then that her urine was as dark as beer but he did not record this on her chart.

The gastrectomy proceeded without incident, Dr. Tongen first making a small incision to conduct a superficial examination of the liver. He found no evidence of cancer there or elsewhere when he proceeded with the 3-hour operation. Mrs. Cornfeldt's recovery appeared to be going well, but after a few days jaundice was evident in her eyes and skin. By July 31, after a series of tests performed the day before, it was clear that her liver was seriously malfunctioning, and Dr. Alfonzo A. Belsito, a gastroenterologist specializing in liver disorders, was called in. On August 1, Mrs. Cornfeldt was transferred to University of Minnesota Hospitals, where desperate measures, including a liver transplant, were unsuccessfully taken. Mrs. Cornfeldt died from hepatitis on September 20, 1973. ⁴ Had the surgery been postponed, there was an 85 to 90 percent probability she would have recovered from hepatitis in a month or six weeks.

Plaintiff commenced this action against Dr. Tongen; Dr. Knutson; Dr. Beals; United Hospitals, Miller Division; and Ayerst Laboratories, Inc., the manufacturer of Fluothane. He alleged that Dr. Tongen, Dr. Knutson, and Dr. Beals were negligent in proceeding with the gastrectomy despite the two abnormal test results without further testing and that, if the operation should have proceeded, Dr. Knutson was negligent in his selection of Fluothane as one of the anesthetics. Plaintiff...