Green v. Lilliewood

• Decision Date: 11 December 1978
• Docket Number: No. 20834,20834
• Citation: 249 S.E.2d 910,272 S.C. 186
• Parties: Mary G. GREEN, Appellant, v. Eugene W. LILLIEWOOD, M. D., Respondent. James GREEN, Jr., Appellant, v. Eugene W. LILLIEWOOD, M. D., Respondent.
• Court: South Carolina Supreme Court

Page 910

249 S.E.2d 910

272 S.C. 186

Mary G. GREEN, Appellant, v. Eugene W. LILLIEWOOD, M. D., Respondent.

James GREEN, Jr., Appellant, v. Eugene W. LILLIEWOOD, M. D., Respondent.

No. 20834.

Supreme Court of South Carolina.

Dec. 11, 1978.

Ellis I. Kahn, of Solomon, Kahn, Roberts & Smith, Charleston, for appellants.

Robinson, McFadden, Moore & Pope, and Thomas D. Broadwater, Columbia, for respondent.

NESS, Justice:

This appeal is from an order granting Dr. Lilliewood's motion for a directed verdict in a medical malpractice suit brought by appellant Mary Green. We reverse.

In July 1969, the respondent, Dr. Lilliewood, inserted an intrauterine device designed to prevent pregnancy into Ms. Green's uterus. In October 1969, Ms. Green complained to Dr. Lilliewood of intermenstrual bleeding and abdominal cramps. She testified she had no problems prior to the insertion of the IUD, but that after its insertion, she developed heavy vaginal discharge and abdominal pain. Although Dr. Lilliewood treated her for these symptoms in October 1969, she returned to his office in January 1970 with the same complaints.

In June 1970, Ms. Green asked Dr. Lilliewood to perform a tubal ligation and remove the IUD. The tubal ligation was performed in July 1970 but Dr. Lilliewood failed to remove the IUD as requested. Ms. Green testified her vaginal discharge and abdominal pain continued after this surgery.

In February 1971, Ms. Green again complained to Dr. Lilliewood of pain in her lower abdomen and a heavy vaginal discharge.

Thereafter, Ms. Green was informed of the presence of the IUD in her uterus by another physician who was treating her for discharge and pain between February 1971 and September 1971. She confronted Dr. Lilliewood with this information in September 1971, and after three painful attempts on three separate occasions, the IUD was surgically removed.

Ms. Green continued to suffer from abdominal pain and in June 1975, another physician surgically removed her uterus. When her discomfort did not abate, Ms. Green's right ovary was removed in April 1977.

Suit was brought by Ms. Green alleging that Dr. Lilliewood negligently failed to remove the IUD from her uterus when the tubal ligation was performed, and that this negligence proximately caused her to have continuous pain and suffering and to require additional medical treatment. The court granted Dr. Lilliewood's motion for a directed verdict on the ground that there was no evidence to support a reasonable inference that his negligence proximately caused Ms. Green's injuries. We disagree.

In considering whether respondent was entitled to a directed verdict, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to Ms. Green. Bellamy v. G.M.A.C., 269 S.C. 578, 239 S.E.2d 73 (1977). Taken in this posture, we believe the evidence was sufficient to warrant submission of the case to the jury.

According to Ms. Green, Dr. Lilliewood admitted his negligence may have been responsible for her continuing discomfort and discharge. Ms. Green testified as follows:

"Mr. Kahn: . . . describe what happened in terms of your visit (to Dr. Lilliewood) over the next three or four years after the IUD was taken out?

What did you do and what did he say to you?

"Ms. Green: Okay, all right. I would come up and I would tell him of my problems; the heavy discharge, the pain in the lower left area basically. There were times when I missed my period, and I told him about those things. At one point I asked him could the problems that I was having be related to the IUD being retained; and he sort of looked embarrassed and nodded his head, but he didn't really tell me yes or no.

"Mr. Kahn: In what way did he nod his head?

"Ms. Green: Well . . . could be; could have been.

"Mr. Kahn: Was it affirmative or negative?

"Ms. Green: An affirmative." (Tr. pages 96 and 97).

In considering the propriety of the granting of respondent's motion for directed verdict, the alleged action of Dr. Lilliewood in nodding his head in response to appellant's question of whether her problems were related to the retention of the IUD must be taken as true. Such admissions by a defendant have been accorded high probative value tantamount to expert testimony in some cases. See Robertson v. LaCroix, 534 P.2d 17 (Okl.App.1975); Jarboe v. Harting, 397 S.W.2d 775 (Ky.1965); 70 C.J.S. Physicians and Surgeons § 62.

We do not think it was necessary that the alleged admission by Dr. Lilliewood meet the "most probably" standard of expert medical testimony established in Armstrong v. Weiland, 267 S.C. 12, 225 S.E.2d 851 (1976). In Amstrong, expert medical testimony was the Only evidence presented to establish proximate cause. In this case, there was both expert medical testimony and circumstantial evidence from which the jury could have inferred negligence by Dr. Lilliewood.

This Court stated in Gambrell v. Burleson, 252 S.C. 98, 101, 165 S.E.2d 622, 623 (1969):

"Where one relies upon medical testimony Alone to show a causal connection between an injury and a subsequent condition, the testimony must meet the 'most probably' rule, and it is not sufficient that the malady in question 'possibly' or 'could have' or 'might have' resulted from the injury.

"Where the plaintiff does not, as here, rely Solely on the opinion testimony of medical experts to establish the causal connection, the aforementioned rule has not been strictly applied." (Emphasis supplied).

A valid reason for the "most probably" rule in cases based solely on expert medical testimony is the highly technical nature of malpractice litigation. Since many malpractice suits involve ailments and treatments outside the realm of ordinary lay knowledge, expert testimony is generally necessary. When it is the only evidence of proximate cause relied upon it must provide a significant causal link between the alleged negligence and the plaintiff's injuries, rather than a tenuous and hypothetical connection.

However, where, as here, Both expert testimony and circumstantial evidence of a physician's culpability are presented, the inquiry need only be whether there was sufficient competent evidence from which the jury may have inferred a causal connection. Gambrell v. Burleson, supra; 70 C.J.S. Physicians and Surgeons § 62, p. 1004.

The following testimony of Dr. Dennis, an expert witness called by Dr. Lilliewood, must also be considered:

"Q. . . . Was it a departure from good medical care Doctor for Dr. Lilliewood not to remove that IUD at the time or around the time or around the time he did the tubal ligation?

"A. I would say that it was a departure from good medical care as I stated in my deposition." (Tr. p. 183).

This evidence that Dr. Lilliewood deviated from the customary standard of practice may have been sufficient in itself to raise a jury issue. According to 70 C.J.S. Physicians and Surgeons § 62, p. 1006 "A departure from established standards of practice, unless justified by circumstances, often makes out a prima facie case of malpractice . . . "

Moreover, strong circumstantial evidence of respondent's negligence arises from the causal sequence of events. Soon after the insertion of the IUD, Ms. Green developed a vaginal discharge, infection, cramping and other associated problems. When these symptoms persisted, she decided to undergo a tubal ligation. Although she was under the impression the IUD was removed during this procedure, Ms. Green discovered over a year later that the IUD was still in her uterus.

In considering the sufficiency of circumstantial evidence, the facts and circumstances should be assessed in light of ordinary experience and common sense. Prosser, Law of Torts, p. 242 (1971); Dooley, Modern Tort Law, § 34. 108 (1977); Barnwell v. Elliott, et al., 225 S.C. 62, 80 S.E.2d 748 (1954); Chaney v. Burgess, 246 S.C. 261, 266, 143 S.E.2d 521 (1965). This general proposition of tort law has been applied in medical malpractice cases as an exception to the general rule requiring expert medical testimony to establish proximate cause. As stated in Jarboe v. Harting, supra, 397 S.W.2d at 778:

"Admittedly, the general rule is that expert testimony is required in a malpractice case to show that the defendant failed to conform to the required standard, which is, such reasonable and ordinary knowledge, skill and diligence as physicians in similar neighborhoods and surroundings ordinarily use under like circumstances . . . However, . . . there is an Exception to the rule in situations where the common knowledge or experience of laymen is extensive enough to recognize or to infer negligence from the facts." (Emphasis supplied).

Also see Robertson v. LaCroix, supra; Scardina v. Colletti, 63 Ill.App.2d 481, 211 N.E.2d 762 (1965); Console v. Nickou, 156 Conn. 268, 240 A.2d 895 (1968); Annotation, Proximate Cause in Malpractice Actions, 13 A.L.R.2d 11, 34.

It is a matter of common knowledge that a tubal ligation renders an IUD or any other birth control device useless. According to Dr. Dennis:

"(I)t's (the IUD's removal) usually customary because it was no longer necessary when she had her tubes tied." (Tr. p. 184).

Dr. Lilliewood's departure from the customary standard of care in failing to remove appellant's IUD and her subsequent injuries provides a temporal causal sequence which warrants a reasonable inference of respondent's negligence. When this circumstantial evidence is combined with the alleged admission by Dr. Lilliewood and the testimony of Dr. Dennis, a sufficient factual issue of causation is created. The...