Jacobs v. Painter

• Decision Date: 21 August 1987
• Citation: 530 A.2d 231
• Parties: Barbara JACOBS, et al. v. Stanley L. PAINTER, Jr.
• Court: Maine Supreme Court

Page 231

530 A.2d 231

Barbara JACOBS, et al. v. Stanley L. PAINTER, Jr.

Supreme Judicial Court of Maine.

Argued Jan. 6, 1987.

Reargued June 1, 1987.

Decided Aug. 21, 1987.

William R. Stokes (orally), Robert J. Stolt, Lipman & Parks, Augusta, for plaintiff.

James M. Bowie (orally), Hunt, Thompson & Bowie, Portland, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, SCOLNIK, and CLIFFORD, JJ.

SCOLNIK, Justice.

The defendant, Dr. Stanley Painter, an osteopathic general practitioner, appeals from a judgment entered by the Superior Court (Kennebec County) on a jury verdict finding him negligent in his medical treatment of the plaintiff, Barbara Jacobs, and awarding damages to her and her husband. For the reasons set forth herein, we affirm the judgment in all respects.

Dr. Painter argues that the Superior Court erred in denying his motions for a directed verdict and for judgment notwithstanding the verdict. He also argues that the court erred in denying his motion to enforce the plaintiffs' voluntary dismissal of their action against him and that a new trial should be ordered because the court did not instruct the jury to apportion liability for damages to the plaintiffs between him and Dr. Amalfitano, the surgeon who performed the operation that resulted in the injuries complained of and who settled with the plaintiffs before trial. We address these arguments in turn.

I.

The Defendant's Motions for Directed Verdict and Judgment

Notwithstanding the Verdict

A. Standard of Review

In reviewing the Superior Court's disposition of a motion for either a directed verdict or judgment notwithstanding the verdict, we apply the same standard of review. We must determine, in either instance, "whether the verdict can be sustained by any reasonable view of the evidence, including all justifiable inferences to be drawn therefrom, taken in the light most favorable to the party in whose favor the verdict was rendered." E.g. Buchanan v. Martin Marietta Corp., 494 A.2d 677, 678 (Me.1985); Cyr v. Michaud, 454 A.2d 1376, 1379-80 (Me.1983).

B. Facts

Viewing all of the evidence in the light most favorable to the plaintiffs, the jury would have been warranted in finding the following facts.

On January 15, 1980, Mrs. Jacobs, who at that time was 68 years old and leading a relatively healthy and active life for her age, visited Dr. Painter, her family physician since the mid-1970s, concerning a lump that had appeared on her chest. After examining his patient, Dr. Painter tentatively diagnosed Mrs. Jacobs' condition as a fractured collarbone. That same day, he sent her to the Waterville Osteopathic Hospital to have x-rays taken and to be seen by Dr. Amalfitano, an orthopedic surgeon who had staff privileges at the hospital.

Dr. Amalfitano saw Mrs. Jacobs that day, reviewed the x-rays that had been ordered by Dr. Painter, examined her, and diagnosed her problem as an "anterior sternoclavicular separation" or dislocation of the collarbone from the sternum. Dr. Amalfitano surmised that this was a long-standing injury. Mrs. Jacobs did not complain of pain associated with the lump. Dr. Amalfitano discussed with Mrs. Jacobs the option of correcting the separation through surgical repair. His office note regarding the appointment with Mrs. Jacobs stated that he was performing a "consult for Dr. Painter" and that Mrs. Jacobs was to be returned to the care of Dr. Painter.

On the same day, following the visit from Mrs. Jacobs, Dr. Amalfitano telephoned Dr. Painter to discuss the diagnosis and the possibility of surgery. He also followed up the telephone conversation with a letter dated January 22, 1980, in which he explained, in more detail, his diagnosis that Mrs. Jacobs had a separated collarbone. He stated, "It is probably long-standing, has probably been that way for a long time and she's never noticed it. That would explain why its not painful." He expressed his concern, however, that the lump could be a tumor and therefore recommended that Mrs. Jacobs be hospitalized and subjected to a few tests "before making other considerations." The letter also discussed the option of Mrs. Jacobs undergoing surgery if further x-rays confirmed the separation of her collarbone and if she decided to have surgery. Dr. Amalfitano concluded his letter with the sentence, "Thank you for permitting me to consult."

On January 25, 1980, having not seen or spoken with Dr. Amalfitano since the January 15, 1980 meeting, Mrs. Jacobs returned to Dr. Painter's office. At that time, while she was in his office, Dr. Painter telephoned the Waterville Osteopathic Hospital and arranged for her admission on January 27 for the purpose of having surgery.

Mrs. Jacobs was admitted to the hospital on January 27 with Dr. Painter recorded as treating physician. Mrs. Jacobs' hospital admission card was filled out by Dr. Painter on that day. He noted on the card that Mrs. Jacobs was being admitted "for surgical intervention of a right clavicular head, sternoclavicular joint" and that because of the possibility of malignancy, "we are planning investigation as to possible sources of our lump."

Dr. Amalfitano arrived at the hospital just after Mrs. Jacobs' admission and learned, for the first time, that she had decided to have surgery. He appended a note to the admission card that states, "Had seen her for consultation but had not completed to date, referring to previous note I understand that she is to get a bone scan and other studies done at this time." He also conducted a second examination of Mrs. Jacobs at that time as a "consultation" for Dr. Painter.

On January 29, 1980, after being advised by Dr. Painter that Mrs. Jacobs still wanted to have surgery, Dr. Amalfitano visited Mrs. Jacobs in the hospital to obtain her consent to the operation. He recommended that she choose surgical repair involving the use of pins to attach her collarbone to the sternum. After Dr. Amalfitano explained certain risks involved in that type of surgery, Mrs. Jacobs signed the "Consent to Operation" form.

The following day, January 30, 1980, Dr. Amalfitano operated on Mrs. Jacobs with the assistance of Dr. Painter. The surgical procedure that was carried out involved affixing Mrs. Jacobs' collarbone to her sternum by inserting what are known as "Steiman pins." Following surgery, she was placed in a plaster cast by Drs. Amalfitano and Painter.

For the duration of Mrs. Jacobs' stay at Waterville Osteopathic Hospital, Dr. Painter was recorded as her treating or attending physician; he never transferred her care to Dr. Amalfitano in writing, which, under the hospital rules, he would have been required to do in order to place her under Dr. Amalfitano's primary care. The "Admission-Summary Sheet" from the hospital, which was completed at the time of her discharge and signed by Dr. Painter as the attending physician, lists "Consultation with Dr. Amalfitano...."

Mrs. Jacobs was scheduled to be discharged from the hospital on February 7, 1980. Prior to her discharge, however, x-rays revealed that portions of the pins had migrated. One had moved into her lung cavity and the other entered her aorta, the large artery leading to her heart. She was discharged from the Waterville Osteopathic Hospital on February 11, 1980 and transferred to the Osteopathic Hospital in Portland. She underwent emergency open heart surgery on February 12, 1980 to remove the pin that had severed her aorta. During that operation, she suffered cardiopulmonary arrest. She underwent surgery again several times for the installation and removal of pacemakers and for the removal of a portion of a second pin that had migrated into her lung cavity. She eventually was placed in the intensive care unit for nearly one month, at which time she required a mechanical respirator for breathing.

As a result of the foregoing, Mrs. Jacobs suffered permanent injuries. She must wear a permanent heart pacemaker. She also suffers from Parkinson's disease, memory loss, and has difficulty speaking.

At trial the jury heard undisputed testimony, from both the plaintiffs' and the defendant's expert witnesses, that the surgery performed on Mrs. Jacobs for the repair of her collarbone separation was inappropriate; that, in the circumstances of her case, such an operation never should have been performed.

The defendant's expert witness, Dr. Barrett, an orthopedic surgeon, testified that there is a difference between the treatment of a patient as a "referral" from a general practitioner and treatment of a patient in the context of a "consultation" for a general practitioner. He testified that when a general practitioner sends a patient to a specialist, it is important that the general practitioner make clear whether it is a referral or a consultation, and that it would be detrimental to the treatment of the patient if a general practitioner failed to clarify, one way or the other, the role of the specialist. Dr. Barrett also testified that if a general practitioner "refers" a patient to a specialized surgeon, it is not his responsibility to know the pros and cons of surgery, but if he sends his patient to another doctor for a "consultation," he has an obligation to review the recommendations of the consultant and to discuss those recommendations with the patient.

The testimony of the plaintiffs' expert witness, Dr. Garger, an orthopedic surgeon with experience as a general practitioner, was presented to the jury at trial through the admission of pre-trial deposition testimony. Dr. Garger also testified about the distinction between a "referral" and a "consultation." The substance of his testimony on that distinction and the implications it carried for the treatment of patients was similar to that of the defendant's expert.

He testified, in addition, that it was "very much incumbent upon [Dr. Painter] to know what the pros and cons of surgery [were] and in this particular case the particular type of surgery." The fact...