Jeanes v. Milner

Decision Date08 June 1970
Docket NumberNo. 19730.,19730.
PartiesJo Pearl JEANES, Administratrix of the Estate of Tommy Joe Jeanes, Deceased, Appellant, v. E. L. MILNER, William S. Orr and Aetna Casualty & Surety Company, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Charles A. Brown, Patten & Brown, Little Rock, Ark., for appellant.

J. W. Barron, Little Rock, Ark., for appellee Milner.

W. A. Eldredge, Little Rock, Ark., for appellees Orr and Aetna Casualty & Surety Co.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The plaintiff's minor son, Tommy, died of cancer. His mother, administratrix of the estate, brought this malpractice action. She alleged that Dr. E. L. Milner, a throat specialist, was negligent in failing to properly diagnose, treat and manage her son's case; that Dr. William S. Orr, a pathologist, was negligent in failing to diagnose tissue taken from her son's throat as being malignant; and, that St. Vincent Infirmary1 was responsible for Dr. Orr's negligence. She further alleged that all defendants were negligent in failing to send slides of tissue taken from her son's throat to Barnes Hospital, St. Louis, Missouri, and to the Armed Forces Institute of Pathology for diagnosis. Finally, she alleged that the defendants' negligence caused Tommy's death, reduced his chances for survival, and was responsible for his pain and suffering from mid-November, 1965, through mid-January, 1966.

The District Court dismissed the action at the close of the plaintiff's case. It stated: (1) that there was no competent evidence to show that either doctor was negligent in diagnosing or treating Tommy, (2) that there was evidence that both doctors and the Infirmary were negligent in failing to send slides of the tissue to Barnes and A.F.I.P., and (3) that there was insufficient evidence to establish that the negligence was the proximate cause of Tommy's pain, suffering and death.

The plaintiff, on appeal, contends that the defendants' negligence was not limited to their failure to transmit the slides but extended to a failure to properly diagnose, treat and manage the case. She also urges that the evidence supported a finding of proximate cause. The defendants urge a contrary position on each issue.

A brief review of the facts is essential to an understanding of the issues presented.

Tommy Joe Jeanes, age thirteen developed a soreness and swelling of his throat in August, 1965. From August 14 to September 14, Tommy received a series of penicillin injections at the Little Rock Air Force Base Dispensary and Hospital. When the mass in his throat failed to improve, arrangements were made for Tommy to see Dr. Milner.

Dr. Milner first examined Tommy on September 16. He diagnosed the mass as a parapharyngeal abscess, incised the mass draining pus from the area, and prescribed a broad spectrum antibiotic. On September 18, he again incised the mass but found no pus on this occasion. Tommy was subsequently seen by Dr. Milner on September 20, September 23, October 1, October 8, October 15 and October 22. During this time, no improvement occurred and Tommy remained on the antibiotic.

On November 1, Dr. Milner again examined Tommy and reported that the mass was increasing in size and that it was tender and fluxiant. He also noted, for the first time, that Tommy had a tender jugulodigastric node in the left parapharyngeal area.

On November 2, Tommy was hospitalized at St. Vincent Infirmary. The following day, Dr. Milner performed a biopsy on Tommy, taking tissue from the mass in the throat. Dr. Milner personally delivered the tissue to Dr. Orr, the supervising pathologist at the Infirmary. Dr. Orr examined the tissue on the same day and prepared slides of it. He submitted a written report stating that the tissue was abscessed but did not appear to be malignant. Three other Little Rock pathologists subsequently examined the slides at Dr. Milner's request. They filed no written report as to their findings but discussed their findings orally with Doctors Orr and Milner. Dr. Orr's written report states that the three pathologists felt that a "benign lesion" was represented "although it has manifestation sic of a most unusual histiocytic proliferating pattern."

On November 17, Dr. Milner performed a second biopsy, taking more tissue from the mass. Dr. Orr again examined the tissue, prepared slides, and submitted a written report stating that "the overall pattern is that of severe inflammatory response within a lymphoid tissue with rather active histiocytosis reaction demonstrated." He stated that multiple stains were being made on the tissue and that an additional report would be given. He made no pathological diagnosis.

On November 18, Dr. Milner told Mrs. Jeanes that he was sending slides of the tissue to A.F.I.P. and to Dr. Joseph Ogura, a St. Louis cancer specialist, with instructions for him to forward them to the Pathology Department at Barnes. He subsequently instructed Dr. Orr to mail the slides to the named parties. On approximately this same date,2 Dr. Milner recommended to Mr. and Mrs. Jeanes that Tommy be taken to Barnes for X-ray treatment. They did not follow his advice stating they were reluctant to do so until a definite diagnosis was made.

Tommy was released from St. Vincent Infirmary on November 22. The mass remained in his throat, he continued to suffer severe headaches, he lost the hearing in his left ear, the pain in his throat and neck increased, and he did not sleep well at night. He could not fully open his mouth, and he had difficulty swallowing even small bits of food. From the date of release through December 28, Tommy had weekly appointments with Dr. Milner. At each appointment, Mrs. Jeanes asked Dr. Milner whether he had received a report from Dr. Ogura, Barnes or the A.F.I.P., and, on each occasion, he replied he had not. After the December 28 appointment, when Dr. Milner again stated that he knew nothing more about the slides, Mrs. Jeanes went to the Little Rock Air Force Base to see the Medical Commander, Dr. Jess Richardson. Dr. Richardson called Dr. Milner and arranged for the slides to be sent to him. Dr. Milner then asked Dr. Orr to send additional slides to Dr. Ogura in St. Louis. The slides were sent immediately.

Mrs. Jeanes received from Dr. Richardson a set of the slides containing tissue from the November 3 and November 17 biopsies. She took them and Tommy to Wilford Hall Hospital, Lackland Air Force Base, San Antonio, Texas, arriving there January 6, 1966.

On January 6, 1966, the Pathology Department at Barnes examined the slides sent to it and made a diagnosis of malignant lymphoma — lymphosarcoma.

On January 13, the Pathology Department at Wilford Hall made a diagnosis of poorly differentiated malignant neoplasm from the St. Vincent Infirmary slides and from new slides prepared by it. Wilford Hall forwarded a set of its slides to A.F.I.P. On January 21, A.F.I.P. diagnosed the tissue as malignant lymphoma, poorly differentiated lymphocytic type.

Wilford Hall administered radiotherapy treatments to Tommy's throat and adjacent areas during the period from January 13 to February 18. The mass completely regressed, the pain and suffering terminated, Tommy regained the hearing in his left ear and his headaches disappeared.

Tommy returned to Wilford Hall in June, 1966, for a checkup and further examination. No recurrence was noted. Tommy returned again to Wilford Hall in August, 1966. That examination revealed cancer in the abdomen and small bowels. The malignancy had become systemic. Tommy died in June, 1967.

We apply the following general principles in reviewing this case: (1) Arkansas law determines the standard of care required of the doctors and the Infirmary. Under that law: a physician is required to possess and exercise that degree of skill and learning possessed and exercised by members of his profession or specialty in the same or similar communities, McClellan v. French, Ark., 439 S.W.2d 813 (1969); Gray v. McDermott, 188 Ark. 1, 64 S.W. 2d 94 (1933); Dunman v. Raney, 118 Ark. 337, 176 S.W. 339 (1915); expert testimony is required where the applicable standard of care is not within the common knowledge of the jury, Graham v. Sisco, 449 S.W.2d 949 (Ark.1970); Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944); and a hospital is required to provide that degree of care and attention to its patients as the circumstances require, Walls v. Boyett, 216 Ark. 541, 226 S.W.2d 552 (1950); Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916). (2) A directed verdict at the close of the plaintiff's evidence should be sparingly granted as it deprives the plaintiff of a determination of the facts by a jury, Compton v. United States, 377 F.2d 408 (8th Cir. 1967); Minnesota Mutual Life Insurance Company v. Wright, 312 F.2d 655 (8th Cir. 1963); Hobbs v. Renick, 304 F.2d 856 (8th Cir. 1962); Barron and Holtzoff, Federal Practice and Procedure, § 1075 (Wright ed. 1961). (3) We view the evidence in the light most favorable to the plaintiff giving her the benefit of every favorable inference which may be fairly drawn, Simpson v. Skelly Oil Company, 371 F.2d 563 (8th Cir. 1967); Born v. Osendorf, 329 F.2d 669 (8th Cir. 1964); MacDonald Engineering Company v. Hover, 290 F.2d 301 (8th Cir. 1961); Frisby v. Olin Mathieson Chemical Corporation, 279 F.2d 939 (8th Cir. 1960).

We will discuss seriatim the issues of Dr. Milner's negligence, of Dr. Orr's negligence, of the defendants' failure to send the slides, and of proximate cause.

DR. MILNER

The plaintiff contends that the evidence showed that Dr. Milner was negligent in failing to make an early and a correct diagnosis, in failing to refer Tommy to Dr. Ogura for examination and in delaying an initial biopsy until November 3. We cannot agree.

There is no testimony in the record, expert or otherwise, tending to show that Dr. Milner failed to follow recognized and accepted procedures in...

To continue reading

Request your trial
50 cases
  • Borkowski v. Sacheti, 14181
    • United States
    • Connecticut Court of Appeals
    • November 20, 1996
    ...776, 781-82, 580 A.2d 206 (1990).9 Some of these courts include: McBride v. United States, 462 F.2d 72 (9th Cir.1972); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); Thompson v. Sun City Community Hospital, Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Blackmon v. Langley, 293 Ark. 286, 737 S.W......
  • Fennell v. Southern Maryland Hosp. Center, Inc.
    • United States
    • Maryland Court of Appeals
    • October 9, 1990
    ...of this opinion.1 Arizona, Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Arkansas, Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); California, James v. United States, 483 F.Supp. 581 (N.D.Cal.1980); District of Columbia, Daniels v. Hadley Memorial Hospital, ......
  • Kilpatrick v. Bryant
    • United States
    • Tennessee Supreme Court
    • December 22, 1993
    ...or "substantial possibility" or "appreciable chance" of a favorable end result given appropriate medical treatment. Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970) (applying Arkansas law); Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Falcon v. Memorial Hosp., 436 Mich. 443, 462......
  • Ehlinger by Ehlinger v. Sipes
    • United States
    • Wisconsin Supreme Court
    • May 2, 1990
    ...v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984); Daniels v. Hadley Memorial Hospital, 566 F.2d 749 (D.C.Cir.1977); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); Hicks v. United States, 368 F.2d 626 (4th Cir.1966). In Roberson, the court The question of causation in cases involving neglig......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT