Mason v. Ellsworth

Citation474 P.2d 909,3 Wn.App. 298
Decision Date23 September 1970
Docket NumberNo. 48--40427--III,48--40427--III
CourtCourt of Appeals of Washington
PartiesFlorence A. MASON, a widow, Appellant, v. W. J. ELLSWORTH, Jr., Respondent.

George W. Young and Robert L. Bell, Spokane, for appellant.

John D. MacGillivray, of MacGillivray, Jones, Clarke & Schiffner, Spokane, for respondent.

MUNSON, Judge.

This is a malpractice action by Florence A. Mason against W. J. Ellsworth, a cardio-thoracic and cardio-vascular surgeon, arising out of the latter's puncturing of the former's esophagus during an esophagoscopy. 1 Plaintiff sought recovery on three theories: (1) defendant was negligent in performing the procedure--shown by direct evidence; (2) defendant was negligent in performing the procedure--shown by res ipsa loquitur; and (3) defendant failed to adequately inform plaintiff of the hazards involved in the procedure so that she could grant an informed consent.

The trial court determined as a matter of law: (1) plaintiff had failed to sustain her burden of establishing defendant's negligence by direct proof of a deviation from the accepted medical standard of performance; and (2) the average layman was not in a position to say the perforation of the esophagus would not have occurred without negligence on defendant's part. The court instructed on plaintiff's third theory; however, the jury found in favor of defendant. Plaintiff appeals.

Plaintiff entered the hospital on November 14, 1965 for a series of diagnostic examinations to determine the cause of her long-standing gastric distress. After 3 days of examinations by Dr. Greer, her physician, he believed her trouble most likely lay in the distal portion of her esophagus. In order to confirm this diagnosis and to determine whether plaintiff had cancer, an ulceration or inflammation of the distal esophagus, Dr. Greer recommended she undergo an esophagoscopy.

Having concluded that an esophagoscopy was required, Dr. Greer discussed with plaintiff his tentative diagnosis, the nature of an esophagoscopy procedure, what it involved, and why he was recommending defendant perform the procedure. Plaintiff agreed to have defendant perfrom the esophagoscopy. Dr. Greer discussed plaintiff's condition with defendant the morning of November 17 and at noon defendant reviewed plaintiff's hospital chart and test results. Plaintiff was then seen by defendant and a history of her condition, symptoms and complaints was taken. A physical examination was conducted and defendant's consultation report was dictated. Defendant confirmed Dr. Greer's tentative diagnosis and that a diagnostic esophagoscopy should be performed to conclusively determine the cause of her condition. This conclusion was explained to plaintiff. Defendant also discussed with her the purpose and nature of an esophagoscopy, advising it was a reasonably safe procedure and she should be able to be discharged from the hospital the following afternoon or evening. After these discussions with Dr. Greer and defendant, plaintiff signed a surgical consent.

The esophagoscopy was performed under general anesthetic the morning of November 18, 1965. It was found plaintiff had marked esophagitis of the inner lining of the esophagus. The procedure was ostensibly uneventful and plaintiff was returned to the recovery room in satisfactory condition. Shortly thereafter plaintiff developed severe abdominal pain. Defendant was called and immediately suspected he had perforated plaintiff's esophagus during the procedure. Plaintiff was first placed on conservative treatment for the perforation but the following afternoon, November 19, the performation--1 1/2 to 2 inches in length--was surgically repaired by Dr. R. E. Ahlquist.

In an esophagoscopy, the most common complications are difficulty in controlling bleeding, allergic reaction to the anesthetic, cardiac arrest from the anesthetic (common to all procedures performed under general anesthetic), and perforation of the esophagus. The risk of such complications is minimal, with the incidence of perforation estimated at 1/4 to 3/4 of 1 per cent.

Although defendant explained to plaintiff the nature and purpose of the esophagoscopy, and advised her that it was a reasonably safe procedure, he admittedly did not discuss with her any of the inherent risks.

We hold the trial court (A) erred in holding as a matter of law defendant was not negligent in performing the procedure; (B) was correct in not submitting the doctrine of res ipsa loquitur to the jury; (C) erred in submitting the issue of informed consent to the jury; and (D) incorrectly applied the standard of care applicable to establish malpractice.

(A) Negligence in the Performance of the Diagnostic Procedure.

By instruction No. 7 the trial court found, as a matter of law, plaintiff had failed to sustain her claim that defendant was negligent in performing the examination. We must examine this ruling, viewing the evidence in a light most favorable to plaintiff and against movant. Leach v. Weiss, 2 Wash.App. 437, 439, 467 P.2d 894 (1970); Lambert v. State Farm Mut.Auto. Ins. Co., 2 Wash.App. 136, 138, 467 P.2d 214 (1970).

Dr. Ahlquist, a thoracic surgeon who had performed innumerable esophagoscopies, on cross-examination by defendant described the purpose and nature of the examination and the manner in which it should be performed:

The esophagoscopy is performed to actually see what the inside of the esophagus from the back of the throat to the stomach looks like. It is performed to diagnose and also to treat certain conditions of the esophagus. You can use an esophagoscope to prove, So you can take a piece of the inside of the esophagus, like if there is a cancer of the esophagus you want to visualize it. You want a piece of it for biopsy so you know what you are dealing with. * * * You do it for many many conditions that involve the esophagus. The procedure itself is either done under local anesthesia where you spray the back of the throat with a novocain-like preparation to numb it and you can pass the scope, or you can put the person to sleep. Insert the scope. It would be very similar to a sword swallower in the circus. Most people don't like to swallow swords so we put them to sleep so they are more comfortable. You introduce the tube down the esophagus, looking at all times on the inside of the esophagus so you know that the scope is inside rather than outside. When you get to a narrow area you pass, we call them bougies or dilators, little, much smaller instruments so that You can dilate up so that you are doing this under direct vision, under direct observation at all times. That's basically the procedure and the reason it is done.

(Italics ours.)

Dr. McCartan, an internist who had performed the instant procedure since 1955, testified as follows:

Q * * * Now then what is the technique of the taking of biopsies in the esophagus? A Well, you visualize the area that you wish to biopsy, and under direct visualization you insert the biopsy forcep. * * * Q And there is a light down there and you watch the light And you can see the end of your pincer here? A Right. * * * Q And then you are watching through your light and you are looking at the wall of the esophagus and then you take a piece, is that right? A Correct.

(Italics ours.) Dr. McCartan also observed that biopsy pincers could produce a perforation.

Defendant, in describing the manner in which he performed the biopsy, stated In her case I dilated it and the dilator went through very--it was--there was a little resistance but not much, * * * I told people there that one has to be careful. This is where you perforate. This is true. No denying this. * * * It wasn't my intention to perforate her, but the dilator went through with little resistance and then slid along. * * * I still don't know whether there is an ulcer, whether it is all spasm or an ulcer there, whether there is anything else there. You can't see it. It is spastic like this. * * * And with the last dilator going through I against tried to move the scope down further. It just was obvious it wasn't going to go. It never dilated up quite the way I felt it should which ruled out simple spasm. * * * I put the scope down as far as I could. I suctioned it out. * * * I took my biopsy forceps * * * I put them under direct vision into this tight area. Now once you get into there you can't see exactly. I thought that I was taking a piece of mucosa. * * * The disease isn't up * * * above the tightened area. * * * It is down inside and that's where I put my biopsy forceps, and that is where I took a couple of small pieces of material * * * I took them in area where the disease is suspected. It was visualized to (a) point, But where that little nipper was you can't see because it is in this tight area, * * * I then suctioned her out. Took my esophagoscope out.

(Italics ours.) The tissue contained in the material removed during the biopsy was not taken from the inner lining of the esophagus--mucosa--but from the fibrous portion on the outside wall of the esophagus. None of the witnesses could testify whether the dilators or the biopsy forceps caused the perforation.

The propriety of the apparent deviation by defendant, in taking the biopsy from that portion of the stricture which was not visible, from the procedure as described by Dr. Ahlquist and McCartan presents a question of fact to be determined by the jury under proper instructions. Jurgens v. American Legion, Department of Washington, Cashmere Post 64, Inc., 1 Wash.App. 39, 459 P.2d 79 (1969). Thus, the court's ruling as a matter of law in the giving of instruction No. 7 is reversible error.

(B) Application of Res Ipsa Loquitur.

Plaintiff assigns error to the trial court's refusal to instruct on the doctrine of res ipsa loquitur. The question of whether instructions encompassing res ipsa loquitur may be given was decided in the affirmative in Horner v. Northern Pac. Beneficial Ass'n...

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