Dickinson v. Mailliard

Decision Date10 March 1970
Docket NumberNo. 53776,53776
Citation175 N.W.2d 588,36 A.L.R.3d 425
PartiesDee W. DICKINSON, Appellant, v. R. E. MAILLIARD, Sr., Buena Vista County and Buena Vista County Hospital, Appellees.
CourtIowa Supreme Court

Patterson, Lorentzen, Duffield, Timmons & Irish, Des Moines, and Welty & Wilcke, Spirit Lake, for appellant.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellee, r. E. Mailliard, Sr.

Sifford, Wadden & Davis, Sioux City, and Ira Skinner, Jr., Storm Lake, for appellees, Buena Vista County and Buena Vista County Hospital.

LeGRAND, Justice.

This is an appeal from judgment for defendants after a jury verdict in their favor. The action is based on the alleged negligence of the defendant, Dr. R. E. Mailliard, Sr., in 'the care, treatment, examination and diagnosis' of plaintiff's injuries and the alleged negligence of the defendant county and defendant hospital (referred to herein jointly as the hospital) in failing to render him proper care while he was confined there as Dr. Mailliard's patient.

On July 14, 1965, plaintiff was injured in an automobile accident. He was immediately taken to the Buena Vista County Hospital where he was attended by defendant doctor.

Based on a preliminary examination, the doctor ordered x-rays of the plaintiff's dorsal spine, chest, right elbow, and lumbar spine. He diagnosed the injuries as laceration of the right elbow and hand, contusion of the chest, rib fracture, compression fracture of the spine of the 8th, 10th and 11th dorsal vertebrae and a cerebral concussion.

Plaintiff was discharged from the hospital and from Dr. Mailliard's care on July 27, 1965. He still experienced pain and discomfort and within a few days went to his family physician, Dr. Ronald F. Rodawig, Jr. He was first examined by Dr. Rodawig on August 2, 1965, complaining of his inability to concentrate, pain in his neck, pain and numbness of the left arm, and a painful mid-back. Dr. Rodawig found tenderness in the mid-back and tenderness when plaintiff attempted to flex or extend his neck. He also found diminution of sensation to touch in the left arm and hand. He ordered additional x-rays, which disclosed 'a fracture-dislocation of the fifth cervical vertebra over the sixth cervical vertebra.' Dr. Rodawig immediately applied a cervical collar and transferred plaintiff by ambulance to St. Mary's Hospital in Rochester, Minnesota, where surgery was performed to reduce the fracture and fuse the cervical vertebrae.

Plaintiff's evidence shows some permanent disability in the left arm and hand, the extent of which is not important to this appeal. In all, five doctors and four nurses testified to various matters concerning the diagnosis and treatment of plaintiff's injuries by the defendant doctor and the care accorded him while he was a patient at the hospital. There is considerable testimony detailing his injuries, his uncooperative attitude as a patient, the procedures followed by the various doctors, and the method by which the hospital charted his condition and notified the doctor of his complaints. We refer to specific evidence later as it bears on the particular errors assigned.

As tried below and as presented to us, this controversy turns on whether there was a negligent failure to properly diagnose plaintiff's fracture of the 5th cervical vertebra and whether the ensuing two-week delay caused more permanent or residual damage than if he had received prompt attention for that injury.

It is well settled a negligent failure to properly diagnose may itself be malpractice on the part of the attending physician. Wilson v. Corbin, 241 Iowa 593, 599, 41 N.W.2d 702, 705; Wheatley v. Heideman, 251 Iowa 695, 704, 102 N.W.2d 343, 349; Lagerpusch v. Lindley, 253 Iowa 1033, 1037, 115 N.W.2d 207, 210; Barnes v. Bovenmyer, 255 Iowa 220, 228, 122 N.W.2d 312, 316.

The jury found generally against the plaintiff. We do not know if that determination was based on a finding there was no negligence; or one that, although negligence was established, no damage resulted from the delay in diagnosing and treating the injury.

Most of our discussion involves the alleged negligence of the doctor. We discuss only briefly the situation with reference to the defendant hospital. We hold the judgment must be reversed as to the doctor but affirmed as to the hospital.

I. With reference to Dr. Mailliard, plaintiff relies on the following assignments:

(1) Error in refusing to permit Dr. Graham, one of plaintiff's experts, to express his opinion that it was 'possible' the delay in diagnosis caused additional residual or neurological damage (2) Error in refusing to permit portions of Dr. Graham's deposition to be received on the ground his opinion was speculative, conjectural, and without probative value; and

(3) Error in permitting defendants to cross-examine Dr. Graham by way of a hypothetical question which allegedly assumed facts not in the record and which were contrary to the record testimony.

II. Dr. Graham is a radiologist, certified by the American Boards of Radiology and the American College of Radiology. He is on the staffs of nine hospitals as a radiologist in three states. His qualifications to testify as an expert were not challenged. His testimony was received by way of deposition. At the time the deposition was introduced, various portions of it were stricken upon objection.

At one point the doctor was asked, 'O. * * * Is it possible that had this dislocation fracture been diagnosed on July 14th, or within the matter of a day or two following July 14th, that there might not have been any of this residual or neurological deficit?' This was objected to as 'calling for the opinion and conclusion of the witness and that it is improper and does not give a proper medical evaluation; anything is possible; * * * (there is no showing of) reasonable medical certainty on which a medical evaluation is based.' This objection was sustained and the record shows the doctor would have answered, 'Yes, I think that's a fair statement.'

Although we need not reach the specific question raised for reasons hereafter stated, we point out the evidence rejected was admissible within the rule announced in Grismore v. Consolidated Products Co., 232 Iowa 328, 361, 5 N.W.2d 646, 663; Brower v. Quick, 249 Iowa 569, 580, 88 N.W.2d 120, 126; Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 383, 101 N.W.2d 167, 172; Bostian v. Jewell, 254 Iowa 1289, 1299, 121 N.W.2d 141, 146; State v. Miller, 254 Iowa 545, 553, 117 N.W.2d 447, 452.

Standing alone, of course, it would not be enough to make a jury quesion as to Causation, but the above cases hold this does not make such evidence Inadmissible. If an expert is qualified, he should be allowed to state his opinion, either as to probable or merely possible causation. The subsequent question of its sufficiency to establish a sufficient showing of causation to submit to the jury depends on the nature of the opinion given together with other evidence bearing on the question.

However, any error in this regard was rendered harmless by the admission of almost identical testimony by Dr. Graham on at least two other occasions.

He was permitted to testify without objection as follows:

'In my practice, I have come across cases where there has been a delay in a diagnosis of fractures and, as an end result, there was no additional harm which showed up by reason of the delay. * * * (I)t would be difficult to say with any degree of reasonable medical certainty that the delay caused any additional harm because had this been diagnosed immediately, and, again, making an assumption that a cervical decompression was done, it is feasible and possible that there would have been no neurological deficit or residual. There is a possibility, too, that there still would be a neurological problem.'

In another part of his deposition he also said, 'I think probably the delay (in diagnosing plaintiff's condition as a fracture-dislocation of the cervical vertebra) contributed quite materially to the residuals.' He explained this opinion by saying that in this type of injury the more quickly the pressure is relieved, the less damage results to the central nervous system and its secondary nerve tract outflow.

To say the least, these two statements are not entirely consistent, but they nevertheless contain the very same information plaintiff sought to elicit by the rejected testimony. No objection was made to either question. In one place Dr. Graham seems to say the damage was only a 'possible' result of the delay; in another that it was 'probable.' The evaluation of this seeming conflict was, of course, for the jury.

Since Dr. Graham testified to the same facts elsewhere, the refusal to permit his answer to the disputed question was not prejudical.

III. The second error assigned by plaintiff deals with excluded evidence intended to establish negligent diagnosis by defendant doctor. It is apparent plaintiff's whole case depends on such proof.

Plaintiff's evidence showed x-rays were taken at the direction of the defendant doctor, and they included pictures of the immediate cervical area where the fracture later appeared. The fracture was not then detected. There is hot dispute as to whether any facts or circumstances existed which dictated the necessity for taking additional x-rays in order to make a proper diagnosis. This is the critical issue in the case against defendant doctor.

Dr. Graham was prepared to testify that the x-rays taken at Dr. Mailliard's direction the day after the accident disclosed a condition which should have prompted him to order follow-up x-rays. These x-rays, in Dr. Graham's opinion, would have quickly disclosed a fracture of the cervical spine.

Dr. Graham testified he carefully examined the x-rays taken at the defendant hospital at Dr. Mailliard's direction. The following then occurred:

'Q. And what if anything of significance have you noticed with respect to that area ...

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