John Henry Needham v. Robert Gaylor, M.D.
| Decision Date | 20 September 1996 |
| Docket Number | C.A. 14834,96-LW-3180 |
| Parties | JOHN HENRY NEEDHAM, et al., Plaintiffs-Appellants v. ROBERT GAYLOR, M.D., et al., Defendants-Appellees C.A. CASE NO. 14834 |
| Court | Ohio Court of Appeals |
MICHAEL S. MILLER, Atty. Reg. No. 0009398, 140 E. Town Street, Suite 1100, Columbus, Ohio 43215, Attorney for Plaintiffs-Appellants
GERALD S. LEESEBERG, Atty. Reg. No. 0000928, NBD Bank Building Penthouse One, 175 S. Third Street, Columbus, Ohio 43215, Attorney for Plaintiffs-Appellants
GAYLE ARNOLD, Atty. Reg. No. 0022068, 175 S. Third Street, Columbus, Ohio 43215, Attorney for Defendants-Appellees
John Henry Needham appeals from a judgment of the Montgomery County Court of Common Pleas which found in favor of Robert Gaylor, M.D.
The relevant facts and procedural history are as follows.
Barbara Needham ("the decedent") had a history of gastric problems including heartburn and inflammation of the esophagus. She had also had her gall bladder removed in 1968. The decedent first consulted with Dr. Gaylor, a gastroenterologist, in January 1989 when she was experiencing chest and abdominal pain. Over the next several months, Dr. Gaylor performed an esophagogastroduodenoscopy ("EGD") on the decedent, a diagnostic procedure in which a scope is inserted into the stomach through the mouth. The EGD revealed an inflammation of the stomach lining. Dr. Gaylor diagnosed this condition as mild gastritis or mild reflux esophagitis, which he treated with medication. Initially, the decedent's condition improved while she was taking the medication.
In December 1990, the decedent returned to Dr. Gaylor complaining of upper right quadrant pain in her abdomen, which she had been experiencing for several months. Dr. Gaylor suspected that she was suffering from biliary tract disease, for which upper right quadrant pain is a classic symptom. Dr. Gaylor admitted, however, that some of the decedent's complaints were atypical for biliary tract disease, that the origin of the decedent's pain was obscure, that he found no tenderness upon examination of her upper right quadrant, and that the objective tests for diagnosing biliary tract disease were normal.
After consulting with the decedent, Dr. Gaylor decided to perform another EGD, followed by an endoscopic retrograde cholangio pantography ("ERCP"), to determine the cause of her pain. Dr. Gaylor told the decedent that if the EGD revealed the likely cause of her pain, he would stop at that point. If not, he would proceed with the ERCP to determine whether she suffered from biliary tract disease.
An ERCP is a diagnostic procedure similar to an EGD except that the scope passes through the stomach and into the small intestine. The scope can then be used to examine the point at which the biliary tract empties into the small intestine. The scope can also be used to inject dye into the biliary tract which, when followed by x-rays, can show whether stones are present in the tract. An ERCP presents significant risks for the patient, including pancreatitis, or inflammation of the pancreas, which can cause death. For this reason, ERCP is generally contraindicated if abdominal pain is of obscure origin or if other objective findings do not indicate biliary tract disease.
Dr. Gaylor performed the EGD and ERCP on the decedent on January 11, 1991 on an outpatient basis. During the EGD, Dr. Gaylor found gastritis and esophagitis similar in nature to that found during her previous EGD. Dr. Gaylor then proceeded to perform the ERCP, during which he noted that the opening of the decedent's biliary tract was enlarged. The procedures went smoothly and the decedent was sent home. Later that day, she went to the emergency room at Middletown Hospital. Dr. Gaylor was contacted and arranged to have the decedent transferred to Kettering Hospital. Tests showed that the decedent's amylase level was very high, which indicated that she had severe pancreatitis.
The next day, the decedent's condition had worsened and she had high levels of lactic acid in her blood stream. Various medical specialists were consulted, and a mini-laparotomy was performed. The mini-laparotomy revealed that some of the decedent's small intestine was necrotic, or dead. A general surgeon operated on the decedent and discovered that she had experienced the death of 19 feet of her small intestine due to lack of blood supply, a condition known as a bowel infarct. Only three feet of the small intestine remained viable. The decedent died on January 15, 1991. The parties dispute whether the bowel infarct was related to the ERCP and whether the decedent's severe pancreatitis would have been fatal in the absence of the bowel infarct.
Needham filed a wrongful death claim on behalf of the decedent's estate in January 1993. The case was tried to a jury on August 22 through 26, 1994. At trial, the central dispute was whether Dr. Gaylor's decision to perform the ERCP was a reasonable one in light of the decedent's symptoms, the tests suggesting that her pain was not caused by a biliary tract disease, the alternative treatments available, and the risks associated with ERCP.
Needham's expert, Dr. Bruce Stein, opined that Dr. Gaylor's care of the decedent did not conform to the standard of care for a gastroenterologist because he did not have sufficient justification to perform the ERCP considering the serious risks associated with the procedure. Stein cited an American Society of Gastrointestinal Endoscopy guideline which stated that ERCP "is rarely indicated in the evaluation of abdominal pain of obscure origin in the absence of other objective findings suggesting biliary tract disease." Based on his review of the decedent's medical records, Stein concluded that there were no objective indications of biliary tract disease in the decedent's case and that her pain was of obscure origin, both of which contraindicated the performance of the ERCP.
Dr. Gaylor and his expert witness, Dr. George Brodmerkel, testified that there are many conditions which could have caused pain such as the decedent's, including stones in the biliary tract, tumors, malignancy, and spasms of the sphincter regulating the passage of bile into the small intestine, which can only be diagnosed by using an ERCP. Dr. Gaylor also testified that the objective tests to detect stones in the biliary tract are inaccurate 15 percent of the time, and that an ultrasound, another test available to detect biliary tract problems, is only 20 percent accurate.
The jury returned a verdict in favor of Dr. Gaylor. By answer to an interrogatory, the jury indicated its finding that Dr. Gaylor was not negligent in his care and treatment of the decedent.
Needham asserts one assignment of error on appeal.
THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT IN ITS INSTRUCTIONS TO THE JURY REGARDING FORESEEABILITY.
Needham argues that the trial court improperly instructed the jury about Dr. Gaylor's standard of care by incorporating foreseeability of probable harm into the standard of care instruction. In the alternative, Needham contends that even if a foreseeability instruction was appropriate, the instruction given was an incorrect statement of the law.
The trial court instructed the jury on negligence and the standard of care for a physician or a specialist using the Ohio Jury Instructions. The trial court then gave an instruction as follows:
In determining whether ordinary care was used, you will consider whether Dr. Gaylor ought to have foreseen under the circumstances that the natural and probable result of his act would cause harm.
At trial, Dr. Gaylor and the other medical experts agreed that performance of an ERCP poses serious risks for the patient even if the procedure is performed properly and that the performance of an unnecessary ERCP constitutes negligence. The parties did not dispute that Dr. Gaylor had performed the procedure properly. Rather, the testimony at trial focused on whether the decedent's medical condition and the diagnostic tests which had been conducted on her justified Dr. Gaylor's decision to perform an ERCP in light of the risks posed by the procedure. The question for the jury, then, based on its assessment of conflicting testimony, was whether Dr. Gaylor had conformed to the standard of care in deciding to perform an ERCP on the decedent.
In determining whether a physician has conformed to the standard of care, the jury must consider whether he acted as would a physician of ordinary skill, care, and diligence under like or similar conditions or circumstances, doing those things which such a physician would do and refraining from doing those things which such a physician would not do. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, paragraph one of the syllabus; Jewett v. Our Lady of Mercy Hosp. of Mariemont (1992), 82 Ohio App.3d 428, 431.
The foreseeability of harm is a factor to consider, along with other factors -- such as the necessity for the procedure -- in determining whether a physician's decision to do a procedure was reasonable. The greater the need for the procedure, the greater the risk of harm that may be tolerated as reasonable. The foreseeability of harm is not of itself a determinative factor, however, as the trial court's instruction could have led the jury to believe.
Because there was a factual issue in this case as to the need for the ERCP procedure, there was also a factual issue as to the tolerable risk. By instructing that whether Dr. Gaylor was negligent depended upon whether he should have foreseen the probability that he would cause harm, the trial court insulated Dr. Gaylor from a determination that he was negligent, even if the jury found that there had been little or...
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