Lane v. Calvert, 93

• Decision Date: 24 February 1958
• Docket Number: No. 93,93
• Citation: 215 Md. 457,138 A.2d 902
• Parties: Henry F. LANE v. Read N. CALVERT and Washington Sanitarium and Hospital, Inc.
• Court: Maryland Court of Appeals

Page 457

215 Md. 457

138 A.2d 902

Henry F. LANE v. Read N. CALVERT and Washington Sanitarium and Hospital, Inc.

No. 93.

Court of Appeals of Maryland.

Feb. 24, 1958.

Patricia Warren, Washington, D. C. (Albert Brick, Washington, D. C., on the brief), for appellant.

Joseph B. Simpson, Jr., Rockville (Vivian V. Simpson and Simpson & Simpson, Rockville, on the brief), for Read N. Calvert.

John M. McInerney, Bethesda, for Wash. Sanitarium & Hospital, Inc.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, and HORNEY, JJ.

BRUNE, Chief Judge.

The plaintiff, Henry F. Lane, brought this suit, both as ancillary administrator of his deceased wife, and individually, in the Circuit Court for Montgomery County against Dr. Read N. Calvert and Washington Sanitarium & Hospital, Inc. for alleged negligence in the performance of an operation on the plaintiff's wife and for alleged negligence in post-operative care of the patient. The case was tried before the court and a jury and resulted in verdicts being directed for each of the defendants and judgments being entered accordingly, from which the plaintiff appealed. The appeal from the judgment in favor of the hospital was abandoned during the argument in this Court.

There were two different claims of negligence in the trial court. The first related to the original operation. It has not been pressed in this Court, and we agree with the trial judge that there was no evidence to sustain a charge of negligence based upon the original operation. The second charge of negligence is based upon an alleged lack of proper post-operative care.

The plaintiff's wife was suffering from carcinoma, or cancer, when she first consulted Dr. Calvert in late April or early May of 1953. It now appears that it had then progressed to such a stage as to have been incurable, and she died of it in March, 1954. Though the declaration contained a claim for wrongful death, this claim seems quite unsupported and is not urged at all in this Court. The claims with which this suit is now concerned are for pain and suffering of the decedent, for the prolongation of her hospitalization and for increased expense incident thereto.

It is necessary to a consideration of the charge of negligence in post-operative treatment to state briefly the nature of the original operation, the difficulties which followed it and what was done to meet them. When Mrs. Lane was referred by her own physician to Dr. Calvert, as a surgeon, she was suffering from carcinoma of the descending colon, which had reached an advanced stage. He correctly diagnosed her illness and his diagnosis was fully confirmed. When he performed his initial operation on May 5th, 1953 he found a large cancer in the upper part of the left colon, which had gone through all three coats of the bowel and had become attached to the back. He found no signs of cancer in the liver or glands and thought that the complete removal of the tumorous mass and of portions of the colon on either side of it gave the best chance of preventing the spread of cancer and for the survival of the patient. The cancer had progressed to the stage of being almost inoperable. Dr. Calvert proceeding to perform the operation, in spite of the difficulty. He removed a large portion of the colon, together with the large tumor, all in one piece, and then joined together the two remaining sections of the bowel.

The voluminous hospital records and the testimony in the case show that Mrs. Lane ran a fever intermittently for some six weeks after the initial operation, for which a variety of treatments were used, including antibiotic drugs, blood transfusions and surgical drainage operations. She was also x-rayed some four or five times. Dr. Calvert consulted several other doctors, among them the patient's regular physician, the Chief of Surgery of the hospital's visiting staff, and Dr. V. M. Iovine, an experienced surgeon in Washington who was associated with a number of hospital in that city and was a member of the medical faculty of George Washington University. He was called in as a consultant at the request of Mr. Lane and with the consent of Dr. Calvert.

Dr. Calvert performed three operations for drainage purposes after the initial major operation. The first was on May 25th. At that time he located and drained an abscess and removed a considerable amount of pus. He testified that there was a fecal fistula, that presumably the pus pockets came from it and that presumably matter in the pus pockets was coming through the suture line made at the time of the original operation. The second drainage operation was performed on June 11th. On that occasion he failed to locate and drain any pus. It was after this operation that Dr. Iovine was called in at Mr. Lane's request, and he first saw the patient on June 24th, went over her hospital record and consulted with Dr. Calvert.

Dr. Iovine suspected what Dr. Calvert had previously suspected and had attempted to correct. It was Dr. Iovine's opinion 'that there was still a collection of pus somewhere in the abdominal cavity that required drainage.' He suggested two types of x-rays--one, chest x-rays to determine the level of the diaphragm; the other, 'the installation of a dye in this opening to determine whether there was a tract that led to a pocket.' The two surgeons discussed the advisibility of performing a colostomy, but Dr. Iovine thought that the first thing requiring attention was the drainage of pus. This was apparently also Dr. Calvert's opinion. Dr. Iovine explained that if the collection of pus were taken care of and the area drained, the patient would be more comfortable and the immediate threat to her existence would be removed. He pointed out that there was evidence of another 'difficulty and that was a fistula, a connection between the bowel and this abcessed cavity.' He went on to say: 'Occasionally, when a collection of pus is drained adequately, these fistulas, if there is no obstruction to the bowel content, will close of their own accord. If they do not, you can assist the healing process by short-circuiting the area--performing a colostomy.' Matters seem to have worked out in this way, and no colostomy was found necessary for Mrs. Lane.

Dr. Iovine's suggestion of injecting a lipiodol dye in the fistulous area was adopted. This caused the tract where pus had accumulated to show up clearly on x-ray pictures. Dr. Calvert then performed the third drainage operation. It proved effective in locating and removing pus then accumulated, the pocket continued to drain through drains which Dr. Calvert then inserted and eventually the fistula closed itself. At a later stage, some time after Mrs. Lane had left the hospital (before the time when Dr. Calvert would have approved her doing so) and had returned to her home, Dr. Iovine reinserted the drains which Dr. Calvert had inserted and which had come loose. Such a loosening appears to be a not uncommon occurrence and no charge of negligence is based thereon.

The gravamen of the plaintiff's charge of negligence in the defendant's post-operative treatment of the patient is that the defendant delayed unduly the use of the dye technique to locate and drain the pus accumulations. Dr. Calvert had used x-rays and he had made incisions for drainage purposes before Dr. Iovine was called in and before the lipiodol dye was used. Dr. Calvert's testimony is that he located the focal point of the pus accumulations each time that he performed a drainage operation, but the second such operation failed to result in the immediate removal of any pus. The dye technique, as shown by Dr. Iovine's testimony, had been in medical use for over twenty years, though the particular dye here used, lipiodol, seems to have been of more recent origin. When Dr. Calvert employed the dye technique, it showed the location of the pus pocket and apparently enabled him to clear up the situation. The chief question is whether or not his failure to use this technique sooner was evidence of negligence of his part in the post-operative treatment of the patient.

The rules of law applicable in this State to cases of alleged medical malpractice, such as the present, are well established. There is a presumption that the doctor has performed his medical duties with the requisite care and skill. State, to Use of Janney v. Housekeeper, 70 Md. 162, 16 A. 382, 2 L.R.A. 587; Fink v. Steele, 166 Md. 354, 171 A. 49; McClees v. Cohen, 158 Md. 60, 148 A. 124. The burden of proof is on the plaintiff to show both a lack of the requisite skill or care on the part of the doctor and that such want of skill or care was a direct cause of the injury; and if proof of either of these elements is wanting the case is not a proper one for submission to the jury. State, to Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, 177 Md. 517, 10 A.2d 612; Angulor v. Hallar, 137 Md. 227, 233, 112 A. 179. The rule as to the degree of skill required is stated in Dashiell v....