Mecham v. McLeay, 39523

• Decision Date: 10 April 1975
• Docket Number: No. 39523,39523
• Parties: Tonia MECHAM, Appellant, Frank Rizutto, Administrator of the Estate of Tonia Mecham, Deceased, substituted v. John McLEAY, M.D., an individual and Clifford Danneel, M.D., an individual, Appellees.
• Court: Nebraska Supreme Court

Page 829

227 N.W.2d 829

193 Neb. 457

Tonia MECHAM, Appellant Frank Rizutto, Administrator of the Estate of Tonia Mecham, Deceased, substituted v. John McLEAY, M.D., an individual and Clifford Danneel, M.D., an individual, Appellees.

No. 39523.

Supreme Court of Nebraska.

April 10, 1975.

Syllabus by the Court

1. In determining what constitutes reasonable and ordinary care, skill, and diligence on the part of a doctor in a particular community, the test is that which physicians or surgeons in the same neighborhood and in similar communities engaged in the same or similar lines of work would ordinarily exercise for the benefit of their patients.

2. Ordinarily when an aobjection to proper evidence is not timely made, such objection is waived.

3. In determining the sufficiency of the evidence to support the submission of an issue to the jury, the asserting party is entitled to have all the conflicts in the evidence and all reasonable inferences therefrom resolved in his favor.

John J. Hanley, Omaha, for appellant.

Emil F. Sodoro, Michael P. Cavel, Joseph S. Daly, Kennedy, Holland, DeLacy & Svoboda, Joe P. Cashen, William Lamson, Jr., Charles M. Caldwell, Omaha, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

In this malpractice action against the defendants, Doctors McLeay and Danneel, alleging failure to make a prompt diagnosis of pernicious anemia, the District Court dismissed the action against Danneel, the consulting neurologist, at the close of the plaintiff's evidence, and a jury verdict was returned in favor of the defendant McLeay, the original treatment doctor, on the issue of his negligence and the plaintiff's contributory negligence. Judgment was entered accordingly. We affirm the judgment of the District Court.

In 1970, the plaintiff Mrs. Tonia Mecham, began experiencing general symptoms of fatigue, weakness, stomach distress, and numbness and tingling in her arms and legs. In spite of treatment for these generalized subjective symptoms, the plaintiff's symptoms worsened, and the numbness and tingling in her hands and feet spread and she began to have difficulty walking properly. McLeay decided to bring the defendant Danneel, a consulting neurologist, into the case for examination and diagnosis, and for the purpose she was admitted to Bergan Mercy Hospital in Omaha, Nebraska, on Thursday, March 25, 1971. The examination by Danneel was commenced on Friday, March 26, 1971, and blood tests were taken. On Monday, March 29, 1971, the plaintiff left the hospital without authorization and without the knowledge of Dr. Danneel. There is directly conflicting testimony as to whether she departed with or without McLeay's authorization. She did leave the hospital before Danneel had completed his examination, however, at the point of her departure from the hospital Danneel had provisionally diagnosed Mrs. Mecham's neurological symptoms as due to 'peripheral neuritis' and McLeay at that time believed her stomach complaints were caused by an abdominal diaphragm or 'hiatal' hernia. After discovering that Mrs. Mecham had left the hospital without his authorization, Dr. Daaneel's nurse made an office appointment for her. After the making of the appointment, Mrs. Mecham called and canceled the appointment, saying that she was too sick to come in. She did not ask for or suggest a subsequent appointment. About 5 weeks later, on May 3, 1971 the plaintiff visited McLeay at his office and her symptoms were worsening. At that time, perhaps due to the difficulty involved in her leaving the hospital while under Danneel's care, McLeay referred her to two other specialists who examined her and arranged for further hospitalization and tests at the St. Joseph Hospital in Omaha, Nebraska. After extensive and very specialized tests, involving consecutive blood examinations, the disease was finally diagnosed as pernicious anemia. Pernicious anemia is a special type of anemia, and is, for our purposes here, a blood disease whose general symptoms are weakness and shortness of breath. If pernicious anemia is untreated, however, a certain percentage of patients develop neurological symptoms related to the peripheral and central nervous system, including trouble with walking and with their hands. It is undisputed that the proper course of treatment is vitamin B12 injections, which are not a cure but only arrest the progress of the disease. In the plaintiff's case, the administered B12 injections which she received from Doctors Stoner and Connor arrested the further worsening of her symptoms, but did not return her to normalcy. The evidence shows that at the time of the trial the plaintiff suffered from a 15 to 25 percent impairment of the leg functions and a 5 to 10 percent impairment of arm functions, including some spinal damage due to the pernicious anemia.

The plaintiff contends there was sufficient evidence to submit to the jury the issue of Danneel's negligence from failure to properly diagnose pernicious anemia considering the standards of medical practice in the community. We examine the facts more precisely as to this specific issue. Danneel was called in on the plaintiff's case as a neurologist consultant by Dr. McLeay and first saw her on Friday, March 26, 1971, at Bergan Mercy Hospital. Danneel examined her, performed certain tests, and blood samples were taken. It is undisputed that Danneel expected to return to the hospital on Monday and make an examination of the results of the blood tests. From the record it could not be reasonably disputed that she was under the care and supervision of Danneel and that she knew the purpose of her being in Bergan Mercy Hospital was for consultation with Danneel, for the taking and completion of a series of tests, with the objective of reaching a further, more definitive, or a final diagnosis of her general symptoms which were worsening. She left the hospital on the afternoon of Monday, March 29, 1971, on her own volition. She did not notify Danneel or receive his permission to leave. From her own testimony her only explanation is that no one told her Not to leave until dismissed by Dr. Danneel. There is no testimony that she made inquiry of the nurse or hospital personnel or anyone else as to the propriety of her leaving. It is undisputed that Danneel set up an office appointment some time in April in order to Complete his examination of her, and to advise her of his diagnosis, if any. She canceled this appointment and she testified that she waited until May 3, 1971, to see McLeay again Because she was took sick to come in sooner. When she did come in on May 3, 1971, to McLeay she was then referred to Drs. Stoner and Connor, the proper tests were made and completed, and a diagnosis of pernicious anemia was made. The necessity for hospitalization, the careful control and supervision of the patient during hospitalization, the necessity for consecutive and refined scientific tests, all requiring the cooperation of the patient, is illustrated by the testimony that Dr. Stoner gave as to his examination. On admission to St. Joseph Hospital, a routine admission blood count was taken. This blood test report showed microcyticnomochromic anemia. This is a preliminary test. Results of the blood test give the specialists further clues regarding evidence to pursue in making a number of other tests which ultimately diagnose pernicious anemia. The final 'the re-assuring test' is a Shilling test, which points up the lack of vitamin B12 in the body. This continuous and progressive medical procedure is the one accepted by the medical profession for diagnosing pernicious anemia and usually requires approximately 9 Days of hospitalization.

The gist of the testimony of plaintiff's expert, Dr. Culiner of San Francisco, is that the Bergan Mercy Hospital blood count, which was taken about the time of the plaintiff's initial admission, showed a...