DiFilippo v. Preston

• Decision Date: 29 June 1961
• Citation: 53 Del. 539,3 Storey 539,173 A.2d 333
• Parties: , 53 Del. 539 Anthony DiFILIPPO and Anne C. DiFilippo, Plaintiffs Below, Appellants, v. Daniel J. PRESTON, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 333

173 A.2d 333

3 Storey 539, 53 Del. 539

Anthony DiFILIPPO and Anne C. DiFilippo, Plaintiffs Below, Appellants, v. Daniel J. PRESTON, Defendant Below, Appellee.

Supreme Court of Delaware.

June 29, 1961.

Reargument Denied July 21, 1961.

John M. Bader, of Bader & Biggs, and A. James Gallo, Wilmington, for appellants.

Edmund N. Carpenter, II, and E. Norman Veasey, of Richards, Layton & Finger, Wilmington, for appellee.

Before SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and DUFFY, Judge, sitting.

WOLCOTT, Justice.

This is an appeal from a judgment entered on a directed verdict for the defendant in an action for personal injuries and medical expenses resulting from alleged malpractice of the defendant, a surgeon of Wilmington, Delaware. The plaintiffs, wife and husband, appeal.

Anne C. DiFilippo, one of the plaintiffs, is a 43-year old housewife. In April of 1957 she consulted her family physician, Dr. Russo, complaining of a visible lump in her throat causing some pressure symptoms. Dr. Russo diagnosed her condition as an enlarged thyroid gland, i. e., a goiter, and recommended that she consult a surgeon. Of two suggested surgeons, Mrs. DiFilippo selected Dr. Daniel J. Preston, the defendant.

Dr. Preston examined Mrs. DiFilippo and confirmed the diagnosis of Dr. Russo. He considered further tests but determined against them as inadvisable, and recommended that because of the pressure on her windpipe and because of the possibility that a goiter, i. e., a diseased thyroid, might become malignant, the thyroid be removed by surgery. This operation is called a thyroidectomy.

Dr. Preston did not warn Mrs. DiFilippo about the possibility of damage to the recurrent laryngeal nerves producing loss of voice as an ultimate effect of the operation. Mrs. DiFilippo consented to have the operation performed.

Dr. Preston operated on Mrs. DiFilippo in May, 1957. The operation was uneventful. In the course of the operation, Dr. Preston was able to find no undiseased tissue in the thyroid gland and, consequently, removed 95% of the gland, leaving 5% of tissue in the posterior area to enable the gland to function partially, and also as a protection against damage to the recurrent laryngeal nerves.

This operative procedure in a thyroidectomy is one method of performing the operation. No visual exposure or examination of the recurrent laryngeal nerves is made by this technique, but a thin layer of thyroid tissue is left to make a barrier between the surgical dissection and the underlying recurrent laryngeal nerves. The technique followed by Dr. Preston is distinguished from a second technique, the so-called Lahey method, which locates and dissects out the recurrent laryngeal nerves, either entirely or partially, so as to be able to see them and thus avoid damage to them.

Since the operation Mrs. DiFilippo has been unable to speak above a hoarse whisper, the cause of which has been diagnosed as injury to the recurrent laryngeal nerves resulting in a paralysis of the vocal cords.

As a result of the paralysis of the vocal cords, in the fall of 1957, Mrs. DiFilippo was forced to submit to a tracheotomy, an operation consisting of making an opening through the patient's neck into the windpipe and the insertion of a 4-inch metal tube through which the patient breathes. Since the performance of this operation, Mrs. DiFilippo has worn constantly a tracheal tube and presumably will be forced to wear it for the balance of her life.

The theory of the action is that Dr. Preston was negligent and thus guilty of malpractice in performing the thyroidectomy as he did, and that he should have followed the so-called Lahey technique to expose to view the recurrent laryngeal nerves and thus avoid injury to them.

Dr. Preston does not deny the possibility that Mrs. DiFilippo's recurrent laryngeal nerves were damaged as a direct result of the operation performed by him. He concedes that damage could have been caused to these nerves by the operation because occasionally these nerves are in an abnormal position anatomically, and occasionally run through the thyroid rather than behind it. He contends, however, that he was not negligent in selecting the technique used by him because it is a standard technique accepted and recognized by surgeons.

He recognizes that there is a dispute among surgeons as to which method for the performance of thyroidectomies is better. He contends, however, that the incidence of damage to the recurrent laryngeal nerves as a result of thyroidectomies is about the same, irrespective of which technique is followed. Consequently, he contends that a surgeon is not negligent, or guilty of malpractice, if he adopts either technique if the operation is performed, as this one admittedly was, with due care and in accordance with the accepted standards for the conduct of an operation following the particular technique.

The plaintiffs make several points as reasons why the judgment below should be reversed and a new trial ordered. However, we do not consider these points in the precise order or form in which they are raised. We take this approach because we think, upon analysis, the case presents one fundamental question.

This question is whether or not the selection by Dr. Preston of the surgical technique followed in this thyroidectomy was, of itself, negligent. If it was then a verdict against him would be justified. If, however, the selection of this technique was not a negligent act, then it follows that Dr. Preston has been exonerated of negligence. We say this because there is no evidence in this record that Dr. Preston failed to perform the operation by the technique selected by him in accordance with due care and the standards of competence demanded of surgeons employing the particular technique.

The general rule is that a surgeon is bound to the same standards of care and competence as other surgeons in good standing ordinarily adhere to in the same or a similar community. 41 Am.Jur., Physicians and Surgeons, § 82; 70 C.J.S. Physicians and Surgeons § 43. This general rule is also the law of Delaware. Christian v. Wilmington General Hospital, 11 Terry 550, 135 A.2d 727; Mitchell v. Atkins, 6 W.W.Harr. 451, 178 A. 593.

What, then, is the standard to which a surgeon of Wilmington is to be held in the performance of a thyroidectomy? Of necessity, that standard is a question of fact to be determined by the testimony of expert witnesses. Christian v. Wilmington General Hospital, supra. We therefore turn to the testimony of the medical expert witnesses called in behalf of the defendant, and also the testimony of Dr. Graubard, a New York surgeon, called by the plaintiffs, whose testimony we consider under this phase of the case as being part of the record before us, although it was actually struck from the record by the trial judge.

The defendant called three surgeons as experts, two of whom were practicing surgeons in the Wilmington area, and the third of whom was an admittedly qualified if not leading surgeon of the Philadelphia area, whose testimony indicates a familiarity with the standards of competence required in the Wilmington area. These three experts are in general agreement as to the recognized and accepted techniques for the surgical treatment of infected thyroids, i. e., goiters, and the performance of thyroidectomies. Their testimony may be summarized as follows.

Surgeons generally recognize that in the performance of thyroidectomies there is a risk of resultant injury to the recurrent laryngeal nerves because of the intimate relationship of those nerves to the thyroid gland, and because of variations in individuals of the course of those nerves around or, in some cases, even through the thyroid gland. The possibility of resultant injury to these nerves is heightened because of their structure, which means that it is not necessary to cut the nerve to injure it. Injury may result by a mere squeezing or stretching. One of the main problems in a thyroidectomy is, therefore, to perform the operation in a manner to avoid resulting injury to the nerves or, at least, minimize the possibility of such injury.

One recognized method or technique to accomplish this is to remove a major part of the thyroid gland by dissection, leaving a small residue of tissue in the area where the nerves would normally be located as a shield or a buffer against the dissection. In this technique, no attempt is made by the surgeon to see, identify and separate the nerves from the thyroid in order to avoid injury to them. The surgeon following this technique relies on his knowledge of the area of the gland adjacent to the nerves and by avoiding dissection of that area, attempts to protect the nerves from injury. This technique is referred to in the record as the standard technique and was the one followed by...