Hayward v. Echols

• Decision Date: 22 June 1966
• Docket Number: No. 22176.,22176.
• Citation: 362 F.2d 791
• Parties: Harold E. HAYWARD, Appellant, v. Dr. Dean H. ECHOLS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

362 F.2d 791 (1966)

Harold E. HAYWARD, Appellant, v. Dr. Dean H. ECHOLS et al., Appellees.

No. 22176.

United States Court of Appeals Fifth Circuit.

June 22, 1966.

L. Arnold Pyle, Robert H. Weaver, Jackson, Miss., David C. Treen, New Orleans, La., Beard, Blue, Schmitt & Green, New Orleans, La., Watkins, Pyle, Edwards & Ludlam, Jackson, Miss., of counsel, for appellant.

Richard C. Baldwin, Henry B. Alsobrook, Jr., Adams & Reese, W. Ford Reese, New Orleans, La., for appellees.

Before RIVES and GEWIN, Circuit Judges, and ALLGOOD, District Judge.

GEWIN, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Eastern District of Louisiana dismissing appellant's case for failure to prove a cause of action sounding in tort. The controversy involves a diversity suit for damages filed by appellant against various doctors and a hospital for personal injuries sustained during the course of a brain operation.¹ The case was tried by the court sitting without a jury.

Plaintiff below (appellant) Harold E. Hayward, developed neuralgia pains sometime during 1957, which were ultimately concentrated in the posterior area of the right side of his mouth near the base of the tongue.² Plaintiff testified that during 1958 the pain became progressively worse "until I was just frantic." In 1959 he was still experiencing rather severe pain and decided to consult physicians at the Ochsner Clinic in Jeferson Parish, Louisiana, concerning possible steps which might either arrest or alleviate his suffering. On arriving at the Ochsner Clinic he was told that Dr. Ochsner was out of town, but he was referred to Dr. Dean Echols for an interview. On discovering that Dr. Echols also was out of town, plaintiff was then referred to Dr. John Jackson, a member of the staff at the Ochsner Foundation Hospital. Plaintiff gave Dr. Jackson a complete history of his difficulty, informing this physician that he had previously seen neurosurgeons in Jackson, Mississippi and Memphis, Tennessee, about his case and that they were of the opinion that his neuralgia pains involved the fifth cranial nerve.

Dr. Jackson, however, diagnosed the trouble as ninth nerve neuralgia rather than fifth nerve neuralgia and told Mr. Hayward that the ninth nerve operation would have far less serious residual effects than the fifth nerve operation which would deaden or anesthetize one-half of his face. Previously, Mr. Hayward had been apprised of the severe consequences of the fifth nerve operation and was anxious to avoid it, if possible. The interview and examination by Dr. Jackson lasted approximately one hour and 15 minutes, and as plaintiff recalls he was told by Dr. Jackson that Dr. Echols, Head of the Department of Neurosurgery at Ochsner Clinic, would contact him upon the latter's return to New Orleans.

Several days later plaintiff had a telephone call from Dr. Echols. During this conversation, plaintiff testified: "Dr. Echols and I talked about it, about the treatment, about the treatment of the spray he wanted me to try on my mouth inside. He told me what to get, I got it, and he told me to try it and let him know the results." Dr. Echols testified that he made no record of this telephone conversation, but that he told the plaintiff to obtain from a pharmacist a 2% Pontacaine solution and to spray his tonsil region to the back of his tongue for the purpose of determining whether this would give him some relief. Dr. Echols explained to Mr. Hayward that if he was actually suffering from ninth nerve neuralgia, the pontacaine solution should control the pain to some extent.

Actually, the use of the pontacaine solution is not intended as a treatment or cure of the condition from which Mr. Hayward was suffering. While, in a proper case, one obtains temporary relief from the pain by using the spray, its chief purpose is a diagnostic test. Mr. Hayward testified that his pain was relieved for a period of 30 to 45 minutes after the spray was applied.³

No further examination of the plaintiff was conducted until October 18 or 19, 1959, when he was admitted to the Ochsner Foundation Hospital prior to the ninth nerve operation. Dr. Echols testified that his assistant, Dr. Mostellar went to see Mr. Hayward about an hour after he was admitted to the hospital on the evening of October 18, 1959, and "he recorded a brief note." The following morning Dr. Mostellar examined the patient, interviewed him, recorded his observations and made his diagnosis. The diagnosis read in part:

"Impression: (1) Tic douloureau, mainly glossopharyngeal tic. This may have a latent trigeminal component."⁴

Dr. Mostellar felt that the principal difficulty was ninth nerve neuralgia, but there was also the possibility of a latent fifth nerve disorder. Since Dr. Echols had not seen the patient personally at this time, he stated that he did not make his diagnosis of plaintiff's disorder solely on the strength of Dr. Mostellar's or Dr. Jackson's conclusions. The following testimony describes the antecedent procedure Dr. Echols utilized before making his final diagnosis as ninth nerve neuralgia:

"Q. Dr. Echols, under the standard custom in the practice of neurosurgery in the New Orleans area and particularly at the Foundation Hospital are residents or students in neurosurgery, such as Dr. Mostellar was in October 1959 permitted to make a final diagnosis that is relied upon by the neurosurgeons?

"A. They are required to make and record their diagnoses, right or wrong. The neurosurgeon of course, cannot rely on the man he is teaching for correctness in diagnosis. * * *

"Q. All right, sir. What did you do, as the neurosurgeon who was to operate on Mr. Hayward, immediately following the receipt of Dr. Mostellar\'s report of his interview on the day before the operation?

"A. Well, I realized that I was a little bit on the spot. Dr. Jackson said he thought that this was ninth neuralgia, but he had a little reservation in his mind and had told me so, and so forth. My assistant, Dr. Mostellar, had said this is mainly ninth nerve neuralgia, but he had a little reservation. So, I saw that I had to make the decision myself — So I went to see Mr. Hayward and did talk to him. I asked him if he tried the Pontacaine spray on the tonsil region of his tongue and he pointed to the Pontacaine atomizer which was at his bedside. He said `Yes, I\'ve been using this frequently during the day. It is controlling the pain very well.\' I said `Do you have any pain anywhere on your face, or have you had any pain on your face anywhere?\' He said, `No, its all been in my tongue and just behind my third lower tooth,\' And I said, `What part of your tongue?\' because that is important, since the fifth nerve supplies the front one-third of the tongue, and the ninth nerve supplies the back two-thirds of the tongue. I said, `Is this pain at the tip of your tongue?\' He said, `Where?\' and Mr. Hayward, at my request, opened his mouth widely and put his finger in his mouth and pointed way back to the back of his tongue and to his tonsil region.

"Then on the strength of his personally telling me where his pain was located and what it was like, after telling me that he did not have pain in his forehead, eyes, cheeks, upper lip, lower lip or the front of his tongue, and after telling me that the Pontacaine did a good job of controlling his pain, I said to him, `I am satisfied that you are suffering from ninth nerve neuralgia and I want to cut your ninth nerve this morning.\'"

This conversation took place some fifteen to twenty minutes before the patient was due to be transported to the operating room. When asked why he did not see Mr. Hayward personally as his patient long before this pre-operative interview, Dr. Echols said: "I can't recall what I was doing, but I assume that I was just too busy to be there until the last minute." He testified that in most cases he interviewed his surgical patients in his own office prior to the operation if at all practicable but "I see those who don't come to the office but go directly to the hospital, I see them in their room in the hospital ahead of time." After permission to operate had been granted by the plaintiff, he was taken to the operating room and the surgery performed. Dr. Echols entered into an extensive and detailed discussion of the surgical procedures he employed in cutting the plaintiff's ninth cranial nerve, answering all questions put to him in a most candid and forthright manner. We see no need to summarize in detail this aspect of the case. In brief, the ninth nerve was severed by Dr. Echols and he stated in this regard: "After cutting the ninth nerve at point (c) and taking ahold of the nerve with my fine forceps at point (a) and getting the scissors ready to cut it at point (a), this nerve slipped out of my forcep and vanished out of my forcep and floated away and I never saw it again."⁵ He testified further that he did not probe for this lost nerve fiber because he did not wish to damage the tenth nerve at all, "much less brush it aside and so on." The operation took 2 hours and 15 minutes to perform and then Mr. Hayward was taken to the recovery room for the night.

Soon after he regained consciousness and while still in the recovery room, he discovered that the neuralgia pains were still present and when this fact was communicated to Dr. Echols, he also readily admitted "that Mr. Hayward still was having neuralgia pains." Dr. Echols saw the plaintiff twice in the recovery room according to the recovery room notes. He stated in this connection: "I remember very well realizing that Mr. Hayward still was having neuralgic pains." As to the nature of his diagnosis of the plaintiff's condition after surgery, Dr. Echols testified, "I suddenly realized that this wasn't something from the anesthetic and that something had gone wrong and that we were dealing with a complication and I realized that his vagus nerve was not working." The vagus nerve is...