Lauro v. Travelers Ins. Co., 4874

• Decision Date: 18 April 1972
• Docket Number: No. 4874,4874
• Parties: Elena Anna LAURO et vir v. The TRAVELERS INSURANCE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 261

261 So.2d 261

50 A.L.R.3d 1130

Elena Anna LAURO et vir v. The TRAVELERS INSURANCE COMPANY et al.

No. 4874.

Court of Appeal of Louisiana, Fourth Circuit.

April 18, 1972.

Rehearing Denied May 16, 1972.

Writ Refused June 15, 1972.

Darden, Screen & Trice, Phil Trice, New Orleans, for plaintiffs-appellants.

Jones, Walker, Waechter, Poitevant, Carrere & Denegre, John V. Baus, New Orleans, for defendants-appellees, Dr. Evelyn B. Nix and The Travelers Ins. Co.

Deutsch, Kerrigan & Stiles, Dermot S. McGlinchey, New Orleans, for defendant-appellee, Ins. Co. of North America.

Before REDMANN, GULOTTA and BOUTALL, JJ.

GULOTTA, Judge.

This is an action for damages based on an erroneous diagnosis while Mrs. Elena Lauro Iseman was undergoing surgery at Mercy Hospital on November 14, 1968. Plaintiffs allege that Dr. Evelyn Nix, a pathologist, was negligent in wrongfully diagnosing tissue removed from a lump in Mrs. Iseman's breast as scirrhous carcinoma, a malignancy, in lieu of granular cell myoblastoma, a benign tumor; resulting in the removal of her breast. Plaintiffs further allege that Mercy Hospital was also negligent in failing to furnish its Pathology Department with modern equipment, more particularly a cryostat in place of the freezing microtome system, for aiding the pathologist in cutting sections used for diagnostic purposes. Were the cryostat used, a more suitable section could have been cut resulting in a more accurate diagnosis. Defendants, Travelers Insurance Company and Insurance Company of North America, are the respective insurers of Dr. Nix and Mercy Hospital. This appeal is from a jury verdict dismissing plaintiffs' suit.

The substance of appellants' contention is that the trial judge erred by improperly excluding certain evidence offered by plaintiffs while allowing the introduction of certain inadmissible evidence offered by defendants and further by commenting on the evidence to plaintiffs' prejudice, as well as by improperly charging the jury. It is contended that the action of the court thus led the jury to its manifestly erroneous determination.

Before considering the particular complaints concerning the action of the trial judge, we shall first concern ourselves with the facts and circumstances surrounding the alleged negligence. Those facts are that Dr. Raymond Schwarz diagnosed the condition as a 'strong possibility' of malignancy and scheduled Mrs. Iseman for an excisional biopsy. He removed the tumor from the breast and sent the tissue to Dr. Nix whose responsibility was, as a pathologist, to diagnose the tissue and report her findings. This procedure is followed while the patient is under anesthesia and while undergoing the surgery.

After making a frozen section diagnosis of the breast tissue, Dr. Nix reported it as scirrhous carcinoma (a maligant cancer) whereupon Dr. Schwarz immediately proceeded with a radical mastectomy or removal of the entire breast and surrounding tissue.

The day after surgery had been performed, Dr. Nix examined the then available permanent paraffin section ¹ and determined that the tissue was not scirrhous carcinoma but rather granular cell myoblastoma, which is not malignant.

ERROR OF TRIL JUDGE

Plaintiffs assign specific error by the trial judge in excluding evidence which they sought to introduce by sustaining objections to plaintiffs' offer. Despite this

ERROR OF TRIAL JUDGE of evidence was made by plaintiffs.

Furthermore, the record reveals that plaintiffs often

succeeded in eliciting the evidence sought during subsequent

questioning after objections had been maintained and in

other instances the court properly excluded the evidence.

²

Moreover, we equally find no merit in plaintiffs' assertion that the trial judge permitted the introduction of evidence by defendants prejudicial to plaintiffs' interest. While the court's action in permitting a reference to a medical journal without the journal being placed in evidence and a further reference to a conversation with a Dr. Byers when Dr. Byers was not available for cross examination might have been questionable, such error was, in our opinion, harmless. ³

When examining a record of the proceedings in the trial court, it is not only conceivable but probable that error would be detected. While it is the responsibility of the appellate court to ascertain if error has been committed, it is important that the error detected be weighed to determine whether such error is harmless or prejudicial. We find herein no such prejudicial error in the evidentiary rulings of the trial judge.

We are also cognizant that a trial judge should studiously seek to avoid commenting on evidence. However, after examining counsel's complaints as to specific statements of the trial judge, although we are of the opinion that the court did on more than one occasion comment on argument of counsel for the plaintiffs, ⁴ these comments did not, in our opinion, constitute prejudicial error.

Were we to conclude that the comments of the trial judge were prejudicial and that the jury's findings were contrary to the record, then we could with reason conclude that those comments might have led the jury to manifest error. On the other hand, when the record supports the verdict, then we cannot conclude the comments of the trial judge had any undue effect on the conclusions of the jury.

The contention that the trial judge erroneously refused to give plaintiffs' requested charges to the jury is also without merit. There was a sound basis for refusal, i.e., either the charge was covered in the general charge, or the wording of the charge was changed or additions made to more accurately state to the jury the applicable law.

Plaintiffs additionally assert that the trial judge should not have given two of defendants' requested charges. The first of these stated: 'A physician is not obligated to always be right in making a diagnosis. It is not malpractice to miss a diagnosis. Making a diagnosis is an act of professional judgment and may not be considered as an act of negligence. This is for you to decide.' We find no error here, as the charge reflects the law. ⁵

The other charge objected to stated that the jury must be guided by the views and opinions of experts as to whether the degree of care used is that which is ordinarily possessed and exercised by other pathologists in this community. Plaintiffs' counsel objected to the inclusion of the word 'must'. Granted, 'must' is a strong word to use; however, we are of the opinion that this charge also reflects the status of the law and was thus properly given. Meyer v . St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953); Steinberg v. Indemnity Insurance Company of North Maerica, 364 F.2d 266 (5th Cir. 1966).

Clearly, it is the duty of the judge to charge the jury as to the law applicable in that case. Furthermore, the court has the corollary right and responsibility to require that the jury receive only the correct law applicable. Thus, it is the trial judge's responsibility to reduce the possibility of confusing the jury; and in the final analysis, he may exercise the right to decide what law is applicable and to prevent counsel from arguing law which he deems inapplicable. Little v. Hughes, 136 So.2d 448, 451 (La.App.1st Cir. 1961); Presley v. Upper Mississippi Towing Corporation, 141 So.2d 411, 416 (La.App.1st Cir. 1962).

LIABILITY OF DR. NIX

The standard of care owed by Dr. Nix in the instant case is to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of her profession in good standing in this community. As a physician, she is not required to exercise the highest degree of skill and care possible, but to use reasonable care and diligence along with her best judgment. Uter v. Bone and Joint Clinic, 249 La. 851, 192 So.2d 100 (1966); Meyer v. St. Paul-Mercury Indemnity Co., supra, and cases cited therein.

For Dr. Nix to be liable, she must have violated this standard. Clearly, the testimony of other experts in the field is the best evidence of what the community standards for a pathologist are. Dr. Charles Dunlap, chairman of the Department of Pathology at Tulane University School of Medicine; Dr. Monroe Samuels, a pathologist; and Dr. William H. Harris, Jr., also a pathologist, testified at the trial. These experts indicated that the procedure followed by Dr. Nix was customary and that in preparing the frozen section for examination under a microscope, the exact thickness of the section is not always paramount, but whether or not the section is representative and useful for diagnostic purposes. If the tissue is cut thin enough to see the cells and if the stain is adequate, the Frozen section is of diagnostic quality.

We are convinced by the experts' testimony, particularly Dr. Dunlap's, that it was not unreasonable for Dr. Nix to diagnose the frozen section as scirrhous carcinoma. The distinguishing visible feature between these two growths is the tiny granules present on granular cell myoblastoma. Dr. Dunlap stated that these tiny little granules would not have been visible under frozen section, although they were later apparent on the permanent paraffin section. Dr. Nix did not have the paraffin section available when making her diagnosis but was, as is customary, working with a frozen section to insure quick results as a benefit to the patient waiting in surgery.

It is standard procedure for the pathologist to report his findings based on the frozen section as soon as possible to the surgeon. The emphasis on speed is to reduce the risk that a malignant growth would spread. According to Dr. Dunlap, it is, therefore, customary to proceed to surgery based on the diagnostic report of a frozen section because delay is undersirable, and it is beneficial to the patient that everything be done in one operation rather than two.

It is important to note that scirrhous carcinoma is a common cancer found in the breast....