Flanagan v. Wesselhoeft
Decision Date | 22 May 1998 |
Docket Number | No. 96-610-A,96-610-A |
Citation | 712 A.2d 365 |
Parties | Donna FLANAGAN et al. v. Conrad WESSELHOEFT, M.D., et al. ppeal. |
Court | Rhode Island Supreme Court |
Steven Aaron Robinson, Providence, for Plaintiff.
R. Kelly Sheridan, David W. Carroll, Providence, for Defendant.
Before WEISBERGER, C.J., and LEDERBERG, FLANDERS, BOURCIER and GOLDBERG, JJ.
The plaintiffs in this appeal claim that a Superior Court trial justice erred in granting the defendant doctor's motion for judgment as a matter of law in a medical malpractice action.
The plaintiffs are John and Donna Flanagan (John, Donna, or Flanagans). The defendant is Conrad Wesselhoeft, M.D. (Dr. Wesselhoeft), a pediatric surgeon. The Flanagans brought suit on behalf of their young daughter, Ashley Flanagan (Ashley), alleging therein that on September 27, 1989, Dr. Wesselhoeft negligently performed surgery upon Ashley when she was eleven months old and that before surgery he had failed to disclose to them, as Ashley's parents, both the material risks of the surgery and any available alternative treatments to the surgery in order to obtain their informed consent to the procedure. Donna also claimed that she sustained economic losses as a result of her having had to take time out from her work as a nurse in order to care for her daughter following corrective surgery on Ashley that was performed in New York by another pediatric surgeon.
In August 1989 the Flanagans noticed a small growth, or node, that had developed on the neck of their eleven month old infant daughter, Ashley, just below her right ear. The Flanagans brought Ashley to be seen by Dr. Wesselhoeft on the recommendation of Ashley's pediatrician. Doctor Wesselhoeft met with the Flanagans and Ashley for some five to seven minutes at his office, where he examined Ashley, palpated the node, and informed the Flanagans that the node would have to be removed by excision and subjected to a biopsy. It is undisputed that during that brief office meeting and examination Dr. Wesselhoeft did not discuss with the Flanagans any alternative treatment other than surgery, and with regard to the surgery no material risks associated with the surgery other than bleeding and infection were mentioned. Doctor Wesselhoeft scheduled Ashley for surgery on September 27, 1989, and from the time of his first meeting with the Flanagans, had no further discussion with them regarding Ashley's scheduled surgical procedure.
On September 27, 1989, the Flanagans brought Ashley to the Rhode Island Hospital where she was turned over to staff personnel to prepare her for surgery. The Flanagans at that time did not see or meet with Dr. Wesselhoeft. That morning, Dr. Wesselhoeft performed the cervical node excision, which took six minutes. The Flanagans met the defendant doctor in the hospital corridor after the surgery had been performed, and he told them that all had gone well. The following week, Donna took Ashley to see Dr. Wesselhoeft for a postoperative visit. He informed her that the excised node revealed no malignancy. He examined Ashley and informed Donna that the incision appeared well healed, and he discharged her from his care.
Some four weeks later, in October 1989, Donna began to notice that Ashley's right shoulder appeared to be "dipping." By December of 1989 Ashley's condition had worsened to the point that her right shoulder had dropped and her scapula and her shoulder rotation bone appeared to be "winging" forward, and although then only fourteen months old, the child was in obvious distress. Donna took her daughter to be examined by her pediatrician, H. Bickford Lang, M.D. He suggested that Ashley be seen by a Michael G. Ehrlich, M.D., but instead Ashley was taken to and seen by a Taranath Shetty, M.D. (Dr. Shetty), who performed an electromyogram. Doctor Shetty informed the Flanagans that their daughter had a "problem" and that it appeared to be with one of the nerves in her neck. The Flanagans, being acquainted with a pediatric physician in Washington, D.C., sought his advice, and he recommended that Ashley be examined by Melvin Rosenwasser, M.D. (Dr. Rosenwasser), a pediatric surgeon at New York Presbyterian Hospital in New York City.
Doctor Rosenwasser diagnosed Ashley with a possible spinal nerve injury. In order to confirm that diagnosis, he performed exploratory surgery on February 16, 1990. During the course of that exploratory surgery, he discovered that his diagnosis was correct. The spinal accessory nerve in Ashley's neck had been severed by Dr. Wesselhoeft during the earlier surgical removal of the benign node in Ashley's neck. Fortunately Dr. Rosenwasser was able to locate the severed nerve ending, which had become encased in scar tissue. By use of an 8-0 stay epineural stitch, he was able to successfully reconnect the severed nerve endings, thereby permitting the spinal accessory nerve to come into apposition without tension. Ashley was later discharged from Dr. Rosenwasser's care in late February. She was required, however, to wear a neck collar, ace wrappings around her stomach area along her chest, and a plastic right arm brace that held and confined her arm against her chest. She was relieved of her arm sling in June of 1990, and in September of 1990, seven months after her second surgery, young Ashley was freed from her body wrappings. Fortunately, thanks to Dr. Rosenwasser's surgical ability, Ashley is now fully recovered.
On September 24, 1992, the Flanagans filed their medical malpractice claim against Dr. Wesselhoeft, a Bette-Jean Gillerin, M.D. (Dr. Gillerin), a resident physician employed by Rhode Island Hospital, and the hospital. The claims against Dr. Gillerin and the Rhode Island Hospital have been resolved and are not before us in this appeal.
In preparing for the trial of their claim against Dr. Wesselhoeft, the Flanagans were required to look to an out-of-state pediatric surgery medical expert to assist in their claim. That was necessary because at that time there were only three pediatric surgeons then practicing in Rhode Island, including the defendant Dr. Wesselhoeft, and all three were associated for practice in the same office. Counsel for the Flanagans retained a Theodore Brand, M.D., (Dr. Brand), a board-certified pediatric surgeon practicing in Atlanta, Georgia. In preparation for trial Dr. Brand was deposed by videotaped deposition. In that deposition it was brought out that Dr. Brand had graduated from Northwestern University Medical School in 1978 and thereafter had completed both his internship and his general surgical residency at Michael Reese Hospital in Chicago, Illinois, from 1979 through 1984. Following his residency he was granted a fellowship in pediatric surgery at Children's Hospital in Seattle, Washington, from 1984 to 1986, after which he began private practice in Atlanta, Georgia, as a pediatric surgeon. He is a fellow of both the American Academy of Pediatric Surgeons and the American College of Surgeons, Pediatric Section, and is board certified in both general and pediatric surgery. Doctor Brand has also been granted staff privileges at nine separate medical hospitals and institutions in Georgia and has been licensed to practice medicine in the states of Washington, Illinois, and Georgia. He is presently retained by the Scottish Rite Children's Hospital to instruct surgical residents in pediatric surgical techniques. In addition Dr. Brand testified during his deposition that in the course of his practice as a pediatric surgeon he had performed in excess of several hundred cervical lymph node excisions.
The Flanagans' civil malpractice action was reached for trial on July 23, 1996. During trial, on July 25, counsel for Dr. Wesselhoeft filed a motion in limine to prevent the introduction of the deposition testimony of Dr. Brand. The motion was based primarily upon the alleged inability of Dr. Brand to testify in regard to his knowledge of the standard of care for pediatric surgeons practicing in Rhode Island while performing a cervical node excision as well as with regard to the standard in Rhode Island for informing a patient of the material risks associated with that surgery. The trial justice granted the defendant's motion in limine, thus preventing the plaintiffs from using Dr. Brand's testimony to establish their claims against Dr. Wesselhoeft.
The plaintiffs' counsel then attempted to gain support for the Flanagans' claims by his questioning of the defendant Dr. Wesselhoeft as an adverse party witness. Doctor Wesselhoeft successfully evaded any questions concerning the standard of care for pediatric surgeons in Rhode Island and refused to acknowledge any medical treatise as sufficiently authoritative in the field of pediatric surgery to define the care required in performing cervical node excision surgery. Doctor Wesselhoeft's evasive answers, coupled with the trial justice's exclusion of Dr. Brand's deposition testimony, destined the Flanagans for the certain judgment as a matter of law doom that quickly followed. For the reasons that follow, we reverse.
The trial justice, in granting the defendant's motion for judgment as a matter of law on the Flanagans' negligence claim, stated:
The trial justice's reference to her earlier exclusion of the proffered deposition testimony of Dr. Brand was based upon the absence in the deposition of any testimony by the doctor that he was familiar with the standard of care applicable to pediatric surgeons practicing in Rhode Island. At the time of the trial justice's ruling it is...
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