Hansen v. Bussman

• Decision Date: 29 April 1976
• Parties: Shannon J. HANSEN, a minor, by and through her Conservator, William L. Dickson, Respondent, v. John W. BUSSMAN, M.D., Appellant, and J. R. Stober, and George E. Meuhleck, M.D., Defendants.
• Court: Oregon Supreme Court

Page 1265

549 P.2d 1265

274 Or. 757

Shannon J. HANSEN, a minor, by and through her Conservator William L. Dickson, Respondent, v. John W. BUSSMAN, M.D., Appellant and J. R. Stober, and George E. Meuhleck, M.D., Defendants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 4, 1976.

Decided April 29, 1976.

[274 Or. 758-A] Garr M. King, of Kennedy & King, Portland, argued the cause for appellant. With him on the brief were Allen Reel and Kennedy & King, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Richard P. Noble and Pozzi, Wilson & Atchison, Portland.

TONGUE, Justice.

This is an action for damages for medical malpractice for failure to diagnose and treat a congenital condition known as hypothyroidism in a 10-month-old baby, with the result that her mental development was retarded. The case was tried before a jury, which returned a verdict of $500,000 against defendant Bussman, who appeals from the resulting judgment. The jury also returned a verdict in favor of another doctor, who had been joined as a defendant, and a nonsuit was granted to a third defendant.

Because of direct conflicts in the testimony it must be kept in mind that after a jury verdict in favor of the plaintiff, this court is required to resolve all conflicts in the testimony in favor of the plaintiff and that plaintiff is entitled to the benefit on this appeal of all evidence favorable to her and of all inferences which may be reasonably drawn from such evidence. Cronn v. Fisher, 245 Or. 407, 416, 422 P.2d 276 (1966). The testimony will thus be summarized in accordance with this established rule.

Summary of the evidence.

The congenital condition of hypothyroidism.

Shannon Hansen was born on December 5, 1968, in St. Helens. The birth was uneventful and no abnormalities were noted by Dr. Meuhleck, her family physician, who delivered the baby and saw her again for a 'six-week check-up.'

In fact, plaintiff was born with a congenital condition known as hypothyroidism--a rare disease in which the thyroid gland is either not present or does not function properly. The resulting deficiency of thyroid hormone prevents normal physical and mental development. If a child does not receive adequate thyroid hormone irreversible brain damage will result. As a result, early diagnosis and treatment is essential.

According to the testimony however, if treatment is commenced within three months there may be 'minimal' or no mental retardation. There was also testimony that if such treatment had been commenced at three months 'the odds are probably seven out of eight that she would have had an IQ of about 85 or 90' (within the normal range); that if such treatment had been commenced 'between six and twelve or six and four(teen) months, there is a 65% Or 70% Chance that her IQ would have been above 75,' but that 'if she had been treated beyond 14 or 15 months, she is almost surely going to have some reduced IQ, probably below 70.' There was testimony that a person with an IQ of 75 or more can work and be self-sustaining. One of the anomalies of the disease is that resulting physical retardation is reversible at a much later time, as compared with mental retardation.

Diagnosis of congenital hypothyroidism is generally made when typical symptoms manifest themselves. It appears that plaintiff never had the most common symptoms, but did have anemia and retarded physical and mental growth and that these are among the symptoms of the disease. Plaintiff offered expert testimony, however, to the effect that physicians who specialize in the care of babies use 'growth charts'; that the use of such charts would have indicated that plaintiff was not growing properly in weight and length; that upon confirming a 'growth deficiency,' such a physician is under obligation to undertake an investigation for the cause of the deficiency, including tests which, if made, would disclose a thyroid deficiency.

Examination, diagnosis and treatment by Dr. Bussman and other doctors.

Dr. Meuhleck, the family doctor, did not examine plaintiff again after he made a 'six-week check-up.' When plaintiff was between five and eight months old, however, her parents became concerned that she was not developing properly and 'seemed awfully slow * * * in growing.' She 'seemed listless, * * * wasn't trying to sit up,' and could not roll over, among other things, and was 'a real pale baby, whitish looking.' Plaintiff's grandmother then called for an appointment with Dr. Bussman, a recognized specialist in pediatrics in Portland. She testified that upon calling his nurse she was asked 'what was wrong and I told her that I would like a complete examination; that the child was not progressing like she should.'

On September 30, 1969, when nine months and 25 days of age, plaintiff was examined by Dr. Bussman, after being weighed and measured by his nurse. Understandably, Dr. Bussman could not recall that particular examination. Plaintiff's mother testified, however, that she told both the nurse and Dr. Bussman that she wanted a 'complete physical' for her baby because of her concern over its lack of growth. This is consistent with a notation 'Gen. Ck.' on the 'chart' made up for plaintiff, meaning a complete physical examination. Dr. Bussman testified that in conducting such an examination he would ask the parents questions designed to 'amplify on that particular complaint initially' and also to elicit whether the child was meeting normal 'developmental landmarks' for growth in weight and length.

Dr. Bussman testified that '* * * she was developing at or near normal landmarks and the growth and length that I observed I attributed to the family growth pattern.' (Plaintiff's mother was a small person.) He diagnosed 'iron deficiency anemia,' prescribed 'oral iron,' and told plaintiff's mother that 'the hemoglobin should be checked again in six weeks.'

According to the grandmother:

'I * * * asked him if being anemic would cause her to be slow in growth, affect her growth, or her mental. He said it would affect her growth, but not mentally.

'So then I asked him, 'What about her mental'--I didn't get to finish. Dr. Bussman walked out and he never returned so I could finish my question.'

On the next visit, the hemoglobin count had risen 'only a very slight amount,' from 8.8 to 9.1 grams. On a third visit it had fallen to 8.6. Assuming that the baby was not 'absorbing iron adequately,' Dr. Bussman then had three 'iron injections' given to her by a nurse on subsequent visits.

On the sixth and last visit to Dr. Bussman plaintiff's hemoglobin level had risen to 9.9 grams. Plaintiff's mother testified that he then told them that her blood 'hadn't come quite up to normal yet, but I should keep doing as I was before (in feeding the baby) and it would be back up to normal; not to worry about It. And this is all that was said.' She also testified that he did not suggest further iron shots or indicate that plaintiff was in need of further examinations or tests.

Plaintiff did not improve, however, but lost her 'color' and her listlessness returned. Her parents then became discouraged with Dr. Bussman. In May 1970 they took plaintiff to Dr. J. R. Stober, a chiropractor, who recognized symptoms of 'glandular obstruction,' thought by him to involve the pituitary gland, and attempted treatment by inflating balloon-like devices inside plaintiff's nose. That treatmant was also unsuccessful.

Eventually plaintiff was admitted to the Crippled Children's Division of the University of Oregon Medical School, where her condition was correctly diagnosed and treatment undertaken. As a result, her normal physical development was restored, except for a disclocated hip. It was then too late, however, to restore her mental development. As a result, plaintiff will never develop beyond an IQ of from 41 to 50, her mental age will never exceed that of a six or seven-year-old child, and she will never be able to live independently. 1. It was not error to submit to the jury plaintiff's allegation that her hip dislocation was caused or worsened by Dr. Bussman's failure to diagnose and treat the hypothyroidism.

Defendant first contends that it was error to submit to the jury plaintiff's allegation that her hip dislocation was caused or worsened by defendant's failure to diagnose and treat the hypothyroidism.

Defendant relies upon the rule that the trial court is required to withdraw from the jury any allegation not supported by some competent evidence. It is equally fundamental, however, that in determining whether to withdraw an allegation from consideration by the jury it is not the function of the court to weigh conflicting evidence and if an allegation is supported by any substantial evidence, including the testimony of a single witness, it is the exclusive function of the jury to decide whether or not to believe that testimony, despite the fact that all other witnesses may have testified to the contrary. ¹

Defendant contends that the only evidence that plaintiff's hip dislocation was in any way caused or worsened by his failure to diagnose the hypothyroidism was the testimony given by him on deposition prior to trial and read to the jury at the trial. Defendant says that such testimony was not competent evidence so as to require the submission of that allegation to the jury because it ceased to have any probative value whatever '(i)n light of Dr. Bussman's full and complete explanation at trial for the change in his statements (on deposition) on (that) question * * *.' In support of this contention defendant relies upon the following statement by this court in O'Lander v. Int. Harvester Co., 260 Or. 383, 388, 490 P.2d 1002, 1004 (1971):

'Plaintiff relies on the general rule that when a witness's testimony on cross-examination conflicts with his testimony on direct examination, the probative value of the testimony is for the jury. 58 Am.Jur. 491, 492, Witn...