Crowley v. O'Neil

• Decision Date: 28 March 1980
• Docket Number: No. 50480,50480
• Citation: 4 Kan.App.2d 491,609 P.2d 198
• Parties: Eugene CROWLEY, Appellant, v. Dr. James H. O'NEIL, Appellee.
• Court: Kansas Court of Appeals

Page 198

609 P.2d 198

4 Kan.App.2d 491

Eugene CROWLEY, Appellant, v. Dr. James H. O'NEIL, Appellee.

No. 50480.

Court of Appeals of Kansas.

March 28, 1980.

Review Denied June 20, 1980.

Syllabus by the Court

1. A physician has a duty to possess and exercise that reasonable degree of learning and skill which is ordinarily possessed by members of his profession and of his school of medicine in the community in which he practices, or in similar communities, and he must exercise such learning and skill with ordinary care and diligence.

2. In a medical malpractice action, a physician or surgeon is presumed to have carefully and skillfully treated a patient, and negligence may not be presumed from the mere fact of injury or adverse result.

3. Expert testimony is ordinarily required to establish negligence or a lack of reasonable care on the part of a physician in his performance of surgical procedures and in the care and treatment of a patient.

4. While expert testimony is ordinarily required to establish negligence as described in Syllabus 3, when the treatment or care of a patient has such bad results that lack of reasonable care would be obvious from the everyday knowledge of persons generally, then persons other than physicians may testify to such facts. This is known as the common knowledge exception.

5. The trial court must determine as a matter of law whether expert medical testimony is necessary to establish the requisite standard of care in a medical malpractice action or whether the common knowledge exception is applicable, and such a determination will not be disturbed on appellate review absent an abuse of discretion.

6. The inadvertent surgical injury in this case to a neighboring healthy portion of the plaintiff's body during a cholecystectomy (gallbladder removal) requires expert testimony to establish negligence on the part of the defendant physician, as the incident is not within the common knowledge exception, and the trial court properly instructed that the standard of care must be established by expert medical testimony.

J. R. Russell of J. R. Russell, Chartered, Kansas City, for appellant.

D. Gary Hunter of Williamson, Cubbison, Hardy & Hunter, Kansas City, for appellee.

Before SWINEHART, P. J., and REES and SPENCER, JJ.

SWINEHART, Presiding Judge:

Plaintiff Eugene Crowley brought a medical malpractice action against defendant James H. O'Neil. After a trial in Wyandotte District Court, the jury returned a verdict in favor of the defendant.

The issues on appeal are: (1) whether the trial court erred by instructing the jury according to PIK Civ.2d 15.10 (1977) which requires that on questions of a medical or scientific nature concerning the standard of care of a physician, the jury may only find the requisite standard of care through the evidence of expert witnesses; and (2) whether the use of the word "accident" by a surgeon in medical records, completed after surgery has been performed, establishes a prima facie case of negligence on the part of the physician.

In June of 1974, the plaintiff was admitted to St. Mary's Hospital in Kansas City, Missouri, complaining of severe stomach pains. After a series of medical tests it was determined that he had a nonfunctioning diseased gallbladder. On June 20, the defendant, Dr. O'Neil, performed a cholecystectomy on Mr. Crowley, i. e., he excised the diseased gallbladder which was described as extra thick. Dr. O'Neil testified that dissection of the gallbladder was difficult and the cystic duct which had to be severed during the surgery was not readily discernible. During the surgical procedure, the common duct, which was abnormally small, was inadvertently divided. Dr. O'Neil repaired the common duct with end-to-end anastomosis and a polyethylene catheter was inserted proximal to the anastomosis close to the site of the splint.

As a result of this division of the common bile duct, the plaintiff was subjected to extended hospital care on several occasions, additional surgery, and other damages for the time he was away from his employment. Specifically, in December, 1974, the plaintiff was again admitted to St. Mary's Hospital with abdominal pain. Since Dr. O'Neil was retiring from his medical practice in January of 1975, plaintiff was referred to Dr. Joseph Cochrane. In March of 1975, the plaintiff was referred to Dr. Arthur E. Prevedel who performed common duct surgery on the plaintiff in Denver, Colorado.

At trial the plaintiff offered no expert medical testimony that Dr. O'Neil had not met the requisite standard of care of a surgeon while performing the cholecystectomy. In fact, his only medical witness was Dr. O'Neil. Plaintiff also introduced medical records compiled by Dr. O'Neil stating that he had "accidentally" cut the bile duct.

Dr. Cochrane appeared as a defense witness and opined that Dr. O'Neil had not been guilty of any professional negligence while performing the gallbladder surgery on the plaintiff.

Among its instructions, the trial court included PIK Civ.2d 15.10 (1977):

"In determining whether a physician used the learning, skill and conduct required of him, you are not permitted to arbitrarily set a standard of your own or determine this question from your personal knowledge. On questions of medical or scientific nature concerning the standard of care of a physician, only those qualified as experts are permitted to testify. The standard of care is established by members of the same profession in the same or similar communities under like circumstances. It follows, therefore, that the only way you may properly find that standard is through evidence presented by physicians called as expert witnesses."

The jury returned a verdict in favor of the defendant on July 11, 1978, and the plaintiff appeals.

The plaintiff states three separate issues in his brief on appeal. (1) When a treating physician enters written memos on his patient's record that he has "accidentally" done something to his patient, is this prima facie evidence of negligence on the part of the physician? (2) When a treating physician records that he has "accidentally" damaged his patient in the course of the care and treatment, does the patient-plaintiff need an expert medical witness to establish this action was less than the medical standard of care? (3) Did the trial court commit error in giving the PIK Civ.2d 15.10 (1977) instruction in light of all the evidence before the court and jury? However, plaintiff's basic contention is that the defendant, in effect, "admitted" that he negligently severed the common bile duct while performing the cholecystectomy on the plaintiff. This alleged "admission" of negligence is based upon an entry made by the defendant in at least three of the plaintiff's medical records that the dissection of the common bile duct was "accidental." Plaintiff, therefore, argues that it was not incumbent upon him to introduce expert testimony to establish the requisite standard of care owed by a physician to a patient.

We first consider whether the trial court improperly instructed the jury pursuant to PIK Civ.2d 15.10 (1977).

The long standing rules regarding medical malpractice in this state are well known. A physician has a duty to possess and exercise that reasonable degree of learning and skill which is ordinarily possessed by members of his profession and of his school of medicine in the community in which he practices or in similar communities. Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22 (1978); Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 3, 574 P.2d 136 (1977). The physician also has the duty to exercise such learning and skill with ordinary care and diligence. Goheen v. Graber, 181 Kan. 107, 309 P.2d 636 (1957). See also PIK Civ.2d 15.10 (1977) and cases cited therein.

A physician or surgeon is presumed to have carefully and skillfully treated or operated upon a patient. Moreover, there can be no presumption of negligence from the mere fact of an injury or adverse result. Webb v. Lungstrum, 223 Kan. at 489, 575 P.2d 22; Tatro v. Lueken, 212 Kan. 606, 611, 512 P.2d 529 (1973); Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, clarified and rehearing denied 187 Kan. 186, 354 P.2d 670 (1960).

Of course, a different rule would apply in res ipsa loquitur cases, but there has been no contention regarding res ipsa loquitur in this action. In fact, the plaintiff has specifically described the negligent act he believes warrants a finding of malpractice, i. e., the severance of the common bile duct.

There is no dispute between these litigants as to the above cited rules. The main disagreement surrounds the role that expert testimony plays in a medical malpractice case. Expert testimony is ordinarily required to establish negligence or a lack of reasonable care on the part of a physician in his performance of surgical procedures and in the care and treatment of his patients. Webb v. Lungstrum, 223 Kan. at 490, 575 P.2d 22; Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961); see PIK Civ.2d 15.10 (1977) and cases cited therein.

"However, this rule does not give the members of the medical profession a monopoly on common sense, and the rule is limited to those matters clearly within the domain of medical science. When, in a given case, the diagnosis, treatment or care of a patient brings such bad results that lack of reasonable care would be apparent, and using the common everyday knowledge of persons generally, such facts may be testified to by persons other than physicians. (Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 (1957)). This is referred to as the common knowledge exception." Webb v. Lungstrum, 223 Kan. at 490, 575 P.2d at 24.

Accord, Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973); Tatro v. Lueken, 212 Kan. 606, 512 P.2d 529. For example, lack of reasonable care was established by lay testimony, and such testimony was sufficient to establish a prima...