Grosjean v. Spencer

• Citation: 258 Iowa 685,140 N.W.2d 139
• Decision Date: 08 February 1966
• Docket Number: No. 51923,51923
• Parties: Dorothy GROSJEAN, As Executrix of the Estate of George B. Grosjean, Deceased, and Dorothy Grosjean, individually, Appellants, v. Dr. J. H. SPENCER and Dr. E. R. Wheeler, Appellees.
• Court: United States State Supreme Court of Iowa

Page 139

140 N.W.2d 139

258 Iowa 685

Dorothy GROSJEAN, As Executrix of the Estate of George B. Grosjean, Deceased, and Dorothy Grosjean, individually, Appellants, v. Dr. J. H. SPENCER and Dr. E. R. Wheeler, Appellees.

No. 51923.

Supreme Court of Iowa.

Feb. 8, 1966.

F. J. MacLaughlin, Davenport, and William H. Wellons, Muscatine, for appellants.

A. Wayne Eckhardt and Duane J. Goedken, Muscatine, for appellees.

MOORE, Justice.

This is a malpractice case originally brought against Dr. J. H. Spencer, a specialist in surgery, his associate Dr. E. R. Wheeler, Muscatine General Hospital, Muscatine County and two nurses. During trial plaintiffs dismissed as against all defendants except the two doctors. Plaintiffs allege defendant doctors were guilty of malpractice in connection with an operation upon George B. Grosjean for a tumor on his descending colon and his postoperative care and as a result thereof he developed peritonitis and died. Mrs. Grosjean's claim is for loss of consortium and medical expenses. At close of plaintiffs' case the trial court sustained defendants' motion for directed verdict and entered judgment thereon. Plaintiffs have appealed.

Plaintiffs assert the trial court erred in (1) directing a verdict against them, (2) sustaining defendants' objections to testimony of two witnesses, (3) sustaining defendants' motion to strike certain allegations of the petition and (4) overruling their motion for a new trial.

In considering the properiety of a directed verdict for defendants we must give plaintiffs' evidence the most favorable construction it will reasonably bear. Generally questions of negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as matters of law. Citation of authority is unnecessary. See rule 344(f)2 and 10, Rules of Civil Procedure.

On December 10, 1962 George B. Grosjean, 59, of previously good health, had abdominal gas pains and dispelled blood in his stool. The next day he went to Dr. Wheeler who directed him to Muscatine General Hospital for X-rays on December 13. That afternoon Grosjean, hereinafter called plaintiff, at the request of Dr. Spencer, went to the doctors' office. He was accompanied by his wife, Dorothy. Dr. Spencer told plaintiff the X-rays revealed a small tumor on his left colon and that an operation was necessary. Plaintiff expressed reluctance to have the operation at that time because all his children were coming home for Christmas. Dr. Spencer then informed plaintiff it should be taken care of at once and that the tumor might suddenly change and grow rapidly and cause a bowel obstruction. At this meeting Dr. Spencer drew a diagram (exhibit 15) showing the stomach, colon, bowel and appendix and placed marks on the colon showing the portion he intended to remove. Dr. Spencer explained the intended operation. Plaintiff then signed this consent: 'Permission to operate. My consent is hereby given to my attending physician and the Muscatine General Hospital authorities to administer whatever anesthetics and to perform whatever operation is necessary upon me, in their opinion.'

Mrs. Grosjean testified Dr. Spencer told plaintiff it didn't amount to much but should be taken care of at once, he expected to remove 11 to 14 inches of colon, plaintiff could be home a few hours on Christmas to visit his family and would be back on his job in two or three weeks.

Defendants objected to Mrs. Grosjean relating any more of plaintiff's statements to Dr. Spencer as self-serving, incompetent, irrelevant and immaterial. The trial court sustained the objection. No offer of proof was made.

Dr. Spencer, assisted by Dr. Wheeler, performed the operation on plaintiff at Muscatine General Hospital on December 17. He met unexpected conditions and complications. The operation took over six hours.

Dr. Spencer was called as plaintiffs' witness. He described in detail the complications encountered and the surgery performed. His testimony is not disputed.

Dr. Spencer testified, as indicated by the diagram, exhibit 15, he made a cut through the middle of the transverse colon and a cut on the left descending colon immediately above the sigmoid colon. The piece of colon taken out amounted to three feet. He stated it was not possible to take out less than three feet because of the blood supply as otherwise gangrene would develop. He then intended to pull the transverse colon down and attach it to the sigmoid colon. This would have been the procedure and operation which he had explained to plaintiff. Unfortunately Dr. Spencer ran into unusual conditions and unexpected difficulty. He stated: 'Most people have a loose transverse colon, but his transverse colon was rigid and could not be pulled down.'

Dr. Spencer testified he was compelled to change his operating plan. He had a choice of performing a colostomy where the bowel comes out the abdominal wall or a colectomy. He performed the latter which would permit bowel movements through the anus. Dr. Supencer took out approximately three and a half feet of the right portion of the large colon and two and a half inches from the ileum (small bowel) and connected the ileum with the sigmoid. The joint is called the anastomosis. Rubber tubing was put in on the side where the loose ends were joined because, according to Dr. Spencer, ten percent of the people develop a leak and the material then runs out the tube. Near the end of the operation the attending nurses expressed some uncertainty as to the sponge count. Dr. Spencer made an examination of plaintiff and took X-rays to be certain none had been left in his abdomen. The subsequent operation at Iowa City and post-mortem examination conclusively disprove plaintiffs' claim of negligence in this regard.

The operation was completed at 6:30 p. m. Dr. Spencer returned to the hospital at 9:00 p. m. and found everything satisfactory. The rubber tubes were working and blood was draining. At 1:30 and 4:30 a. m. Dr. Spencer returned and gave plaintiff blood. He testified these complications were not unusual after a long operation. Thereafter both doctors were in regular attendance until plaintiff was taken to Iowa City on January 1, 1963.

The hospital chart together with testimony of attending nurses trace plaintiff's progress following the operation. He seemed to progress satisfactorily each day until near the end of the month. On Christmas, his eighth postoperative day, the nurse's chart entry states: 'Condition much improved, patient cheerful, ate well, visited with family, patient not as jaundiced, a good day.' Similar entries were made on the following days.

On January 1, the 15th postoperative day, plaintiff had a black tarry stool, appeared weak and nervous and then suddenly became unconscious. Oxygen was given and blood started. There was a large amount of red drainage and he expelled blood rectally. Plaintiff was immediately taken to the University Hospital at Iowa City. Dr. Spencer and a nurse attended him on the ambulance trip.

Upon arrival at Iowa City, Dr. Richard Liechty, a surgeon at the State University Hospital, conferred with Dr. Spencer and examined plaintiff. It was determined he had developed a gastric ulcer which was bleeding into the gastrointestinal tract.

Dr. Liechty assisted by two other doctors operated on plaintiff that day. Dr. Spencer was in attendance.

Dr. Liechty testified the operation confirmed the diagnosis made upon plaintiff's arrival at the hospital. He described his observations of the previous operation and stated: 'with that much colon removed it can function normally. Often there is a little frequency of stools but we do this for certain diseases and they get along nicely.'

Dr. Liechty testified on opening plaintiff he found a small leak in the anastomosis through which intestinal contents and a good deal of blood were passing, acute and massive intestinal bleeding from an ulcer high in the stomach, fluid collections, evidence of hemorrhage along both sides of the abdomen and pelvis and extensive peritonitis. Peritonitis is an inflammation of the peritoneal cavity. It can be caused by any irritant, blood, air, bacteria, chemicals, gastric juices, bile or fecal material.

Dr. Liechty testified peritonitis is a leading cause of death in surgery wards and under the circumstances he stopped the bleeding and brought the small bowel outside the abdominal wall. Plaintiff died of peritonitis in the University Hospital on January 9, 1963.

On direct examination Dr. Liechty stated that where 18 inches of descending colon has been removed so it cannot be attached or joined the usual operation is probably a colostomy. He testified prior to Dr. Spencer's detailed description of the conditions found and the operation which he performed. As pointed out by defendants the reason for plaintiffs' question is unknown. No such operation was planned or performed. This testimony has no probative value here.

No expert testimony was offered indicating Dr. Spencer or Dr. Wheeler did not observe the usual medical practices in performing the operation or caring for plaintiff.

I. The general rule is that a physician and surgeon is required to exercise that degree of skill and care ordinarily used by similar specialists in like circumstances, having regard to the existing state of knowledge in medicine and surgery, not merely the average skill and care of a general practitioner. McGulpin v. Bessmer, 241 Iowa 1119, 1132, 43 N.W.2d 121, 128 and citations; Barnes v. Bovenmyer, 255 Iowa 220, 228, 122 N.W.2d 312, 316; 41 Am.Jur., Physicians and Surgeons, section 90; 70 C.J.S. Physicians and Surgeons § 41.

In Johnson v. Van Werden, 255 Iowa 1285, 1290, 125 N.W.2d 782, 784, and Kirchner v. Dorsey & Dorsey, 226 Iowa 283, 290, 284 N.W. 171, 176, we quote the following from O'Grady v. Cadwallader, 183 Iowa 178, 192, 166 N.W. 755, 759; 'There is no implied guaranty of results, and all the law demands is that the practitioner bring...