Hart v. Steele

Decision Date10 July 1967
Docket NumberNo. 1,No. 52549,52549,1
Citation416 S.W.2d 927,37 A.L.R.3d 456
PartiesRosa Lena HART and Harry Hart, Respondents, v. James C. STEELE, Appellant
CourtMissouri Supreme Court

Harold W. Barrick, New London, for respondents.

Carstarphen, Harvey & Wasinger, Hannibal, for appellant.

HOUSER, Commissioner.

Rosa Lena Hart and her husband Harry brought a malpractice action against Dr. James C. Steele, a surgeon. Following a jury verdict for defendant the court, considering that it had improperly excluded certain evidence offered by plaintiffs, sustained plaintiffs' motion for a new trial. Defendant appealed.

The parties have joined issue on the question of the admissibility of the excluded evidence but before reaching that point we consider first appellant's point of chief insistence, that the trial court erred in failing to direct a verdict in his favor; that plaintiffs not only failed to make a submissible case but also affirmatively disproved their own case.

The negligence charged was that of puncturing Mrs. Hart's left kidney tube (ureter) in the course of a hysterectomy.

After the operation Mrs. Hart experienced a normal postoperative recovery for several days. Her temperature and abdominal distention subsided and she was recovering until eleven days after the operation, when her temperature elevated and her abdomen began to swell. Dr. Strong was called in consultation on the twelfth day and Dr. Clisham was called in on the thirteenth day. Mrs. Hart by then was acutely ill. Dr. Strong's first impression was that she had either a wound abscess or a uretal opening or injury with possible extravasation of urine. After doing a retrograde pyelogram and taking X rays, a diagnosis of defect in the ureteral wall was made, and a second operation was decided upon. There is no question that after the hysterectomy was performed a fistula or opening in the ureter either existed or developed, through which urine escaped into the abdomen, necessitating the second operation. Dr. Clisham assisted Dr. Steele in performing the second operation, draining accumulated urine and inserting a catheter. Following the second operation the fistula healed and Mrs. Hart experienced a normal recovery.

Plaintiffs' theory was that in suturing during the hysterectomy defendant negligently put a stitch in the ureter. They introduced a hospital record written by a doctor, an X-ray technician, which stated 'Apparently there has been an injury to the ureter at the time of surgery.' Plaintiffs' only evidence that defendant put a stitch in the kidney tube came from plaintiff Harry Hart and Mrs. Hart's parents, who testified that in their presence defendant stated that he 'had a stitch in the kidney tube and would have to operate,' and Mrs. Hart's testimony that during the pyelogram procedure she overheard Dr. Clisham say to Dr. Steele, 'Jim, here is your trouble. You've got a stitch in the kidney tube.'

Plaintiffs called Dr. Steele to the stand. He described Mrs. Hart's condition and symptoms before the operation; the operation itself, which was 'perfectly normal,' and stated that he had performed in excess of 300 hysterectomies, in none of which the patient developed an opening in the kidney tube and in none of which he ever passed a suture through the kidney tube. It was his opinion that the opening in the kidney tube was caused by a rare complication of her disease of endometriosis; that when the ovaries are removed and the hormones are thus withdrawn this causes a wasting of the tissues and the formation of scar tissue with may involve a blood vessel to the ureter, and that this results in death (necrosis) of the tissue in the wall of the ureter which would then cause a fistulous opening. He stated that if she had had an opening in the kidney tube at the time of the first surgery she would have developed her trouble immediately, but her troubles did not start until the eleventh day after the operation, which would be about the usual length of time for a fistula to develop if caused by the drying up of endometriosis implants.

Plaintiffs called Drs. Strong and Clisham to the stand as their witnesses. These doctors did not support but contradicted plaintiffs' theory of the case. Dr. Strong testified positively that 'there wasn't a stitch put through this one.' These two doctors testified that the fistula was caused by a necrosis of the wall of the ureter, which they explained as follows: Mrs. Hart was suffering from endometriosis, which is a condition in which tissue shed during the menstrual cycle regurgitates or passes out through the Fallopian tubes and scatters throughout the abdomen. Fed by hormones from the ovaries these little implants increase in size and cause pain. A hysterectomy is an accepted method of treating and curing endometriosis. When the ovaries are removed, thereby cutting off the supply of hormones, the implants decrease in size or 'dry up,' forming scar tissue in the process. Ordinarily this does not cause trouble but in Mrs. Hart's case a rare complication occurred, in that the scar tissue interfered with the blood supply to the ureter, causing necrosis of the wall of the ureter, resulting in the fistula. Both of these doctors were also of the opinion that the fistula could have been caused by the diminishing of the blood supply to the ureter, causing necrosis, occurring as a natural and normal consequence of the hysterectomy.

Plaintiffs also called a Dr. Dwyer to the stand. On the basis of hypothetical questioning, he was of the opinion that the hole in the ureter was not due to endometriosis. In answer to a hypothetical question which assumed that in suturing the patient a stitch was passed through the kidney tube Dr. Dwyer gave his opinion that the stitch would account for the escape of urine into the abdominal cavity.

Defendant's case in chief consisted of his own testimony and that of Dr. Burns, who assisted Dr. Steele in the performance of the hysterectomy. Dr. Burns confirmed the opinions of Drs. Steele, Clisham and Strong that the fistula was caused by necrosis resulting from interference with the blood supply due to scar tissue and shrinking up or atrophy of the implants. As he explained it, alrophy interferes with blood supply, necrosis sets in, the wall becomes soft and jellylike and a leak develops much like a soft spot in a garden hose will give way. Dr. Burns also confirmed their view that necrosis could be caused by the disturbance of the blood supply as a natural result of surgery. He categorically and positively denied that a stitch had been passed through the ureter and testified that if it had the patient would not have continued to improved for several days after surgery, but would have remained sick, her temperature would have continued to be elevated and her abdomen would have continued to be distended. The fact is, however, that she got better after the hysterectomy, her temperature became normal, and the postoperative distention of her abdomen went away. It was not until eleven days after the first operation that these symptoms returned. He testified that it wouldt take from 7 to 14 days after surgery for the fistula to develop by the cutting off of the hormone supply. Dr. Burns testified that the surgery was performed in a good manner, a 'very meticulous manner'; that it was a routine hysterectomy; that 'even the best gynecologic surgeons can put a stitch through the ureter.' When Dr. Steele took the stand in his own behalf he denied having made the admissions testified to by Harry Hart and Mrs. Hart's parents; denied that Dr. Clisham had made the statement attributed to him, and denied that he had placed a stitch through the ureter. He testified that if he had done so it would have caused a fistula; that leakage would have developed within 24 to 48 hours and the patient would have become ill immediately following the first operartion; would have gotten worse instead of better; her temperature would have stayed up, and the postoperative distention would not have subsided. Asked whether, in case a stitch had been placed in the kidney tube, the surgery would have been below the level of skill which he as a gynecologist is expected to bring to an operation such as a hysterectomy he answered in the negative, stating that frequently ureters are damaged, and stitches placed by the most skillful gynecologists.

Defendant was required to use and exercise that degree of care,...

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