Dees v. Pace
| Decision Date | 02 June 1953 |
| Citation | 118 Cal.App.2d 284,257 P.2d 756 |
| Court | California Court of Appeals Court of Appeals |
| Parties | DEES v. PACE. Civ. 15274. |
Rankin, Oneal, Luckhardt, Center & Hall, Duncan Oneal, San Jose, for appellant.
O. Vincent Bruno and Michael Di Leonardo, San Jose, for respondent.
This is an appeal from a judgment against defendant, a physician and surgeon, for the sum of $20,000 entered pursuant to a jury's verdict awarding the plaintiff that sum in damages for malpractice.
The defendant performed a total hysterectomy operation upon the plaintiff. After the operation plaintiff developed a leakage of urine. Plaintiff testified that this first occurred while she was in the hospital three days after the operation. If was reported to the doctor ten days after the operation. She reported from time to time to the doctor and received some treatment without effect. She was examined by another physician, a Dr. Lamb, with the consent of the defendant. Dr. Lamb discovered a fistula or hole in plaintiff's bladder. The plaintiff returned to the defendant who made an examination and also found the fistula. Plaintiff entered the hospital again, and another operation was performed to repair the bladder. This operation was performed by an urologist, Dr. McElligott, who was assisted by the defendant. The condition was no better after this operation. Another repair operation was performed, this time by Dr. Picksworth and Dr. McElligott. This operation was successful and plaintiff no longer had any leakage.
Three doctors testified on behalf of the plaintiff. Dr. Lamb testified as to his examination of the plaintiff, the finding of the fistula, and that he informed the defendant of his findings. He further testified that a fistula of this kind could have been caused by a cut from a scalpel during an hysterectomy operation, from the use of scissors, from clamps improperly placed, or by infection which had cut off the blood supply from that portion of the bladder. He stated that a fistula had never followed any of the approximately three hundred hysterectomies he had performed. The doctor also testified that if the fistula had been caused by cutting the wall of the bladder during the operation, leakage would be expected to appear almost immediately and in any event sooner than ten days. He expressed no opinion as to how the fistula in the present case was caused.
Dr. E. B. McElligott, who performed the first repair operation and who assisted in the final repair operation, testified he found no disease or anything unusual in the bladder which would cause it to break down but stated he had no opinion as to the cause of the fistula. He testified that a fistula could be caused by a suture in the bladder, by cutting, by clamping, by poor blood supply, by infection, by childbirth, or that it could result from pressure against the bladder by an enlarged uterus. He also testified that in performing an hysterectomy you separate the bladder from the uterus by use of your fingers and a sponge which is considered good procedure; that it is possible that a bruise could result to the bladder during the course of that phase of the operation which in turn could develop a fistula. He stated that a fistula developing from an hysterectomy is not too uncommon.
Dr. Harry Luke Harrison, Jr., testified that he is a specialist in the field of obstetrics and gynecology; that in his entire practice he had observed approximately two dozen fistulas; that only in one-tenth to two-tenths of one per cent of all hysterectomies does a fistula follow. He examined the plaintiff and observed the fistula but expressed no opinion as to its cause.
The plaintiff, in rebuttal, called Dr. Max E. Picksworth who testified that he performed the second repair operation with Dr. McElligott and that plaintiff's fistula was about one to one and one-half centimeters in diameter. The fistula in his opinion was possibly of traumatic origin. He further testified that in his opinion it could not be due to a condition of chronic cervicitis. There was also testimony by the doctor that fistulas sometimes result from cancer and in inflammatory disease in other organs that extend to the bladder.
None of the doctors called by the plaintiff criticized in any manner the operative procedure followed by the defendant. None of them expressed a view that the facts evidenced any failure by the defendant to possess the degree of learning and skill ordinarily possessed by physicians in good standing practicing in the locality. Neither did any of them suggest that the facts indicated any failure to exercise due care in applying that knowledge and skill in the treatment of the plaintiff.
The defendant called three doctors as witnesses. The first was Dr. John Hunt Shephard who testified he had examined the operative records of the hospital concerning the procedure followed by the defendant in performance of the operation and that there was nothing which would have been done differently by any prudent surgeon of general practice and that the defendant had not failed to do anything which should have been done by a reasonably practical and skillful surgeon in the area. He further testified that a possible fistula is a recognized hazard in hysterectomies and that a fistula may develop from the performance of an hysterectomy without negligence on the part of the doctor. A fistula had never followed any of the hysterectomies that he had performed although he stated that they sometimes follow such an operation and one sees many of them in medical centers. In his opinion the incidence would be less than one per cent. Dr. Shephard also stated the causes of vesicle vaginal fistulas following a total abdominal hysterectomy are congenital defects in the bladder, the use of instruments, suturing, infections or tumor formations.
Dr. Thomas L. Blanchard testified that he had examined the operative routine and there was nothing in the record which differed from the manner in which such an operation would be performed by a reasonably prudent and skillful surgeon. He further testified that a fistula in the bladder might follow an hysterectomy performed under ideal conditions any by the most skillful surgeon.
Dr. Pace, the defendant, after describing his treatment and operative procedure, stated that so far as he could ascertain he did not cause any injury to the plaintiff's bladder by the use of scalpel, scissors, clamps or in suturing. He stated that removal of the uterus disclosed the presence of two cysts, a fibroid and chronic cervicitis. The uterus was found to be enlarged. The causes of fistula following hysterectomy were stated to be: lacerations of the bladder with a knife, scissors or needle; undue pressure or extension on the bladder during the operation; infections, present or previous; poor blood supply and causes inexplainable to the surgeon. He stated that a fistula was a calculated risk in this type of operation and further stated he did not know its cause in the present case. His testimony also disclosed that the upper portion of the uterus is about one inch from the wall...
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