Odum v. Cejas

• Citation: 510 S.W.2d 218
• Decision Date: 17 May 1974
• Docket Number: No. 9258,9258
• Parties: Gloria I. ODUM, Plaintiff-Appellant, v. Leandro P. CEJAS, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 218

510 S.W.2d 218

Gloria I. ODUM, Plaintiff-Appellant, v. Leandro P. CEJAS, Defendant-Respondent.

No. 9258.

Missouri Court of Appeals, Springfield District.

May 17, 1974.

Maurice B. Graham, Schnapp, Graham & Reid, Fredericktown, for plaintiff-appellant.

Manuel Drumm, Sikeston, for defendant-respondent.

STONE, Judge.

This is an action by plaintiff Gloria I. Odum against defendant Leandro P. Cejas, M.D., for alleged malpractice. The only assignment upon which plaintiff's counsel relied was defendant's alleged negligence in postoperative care of the plaintiff following a hysterectomy. At the close of plaintiff's case, defendant's motion for a directed verdict was sustained on the ground that plaintiff had failed to make a submissible case on the essential element of causal connection between the negligence charged against (but in no wise conceded by) defendant and the condition of which plaintiff complained. From the judgment for defendant then entered, plaintiff appeals.

Defendant is an obstetrician and gynecologist at the Ferguson Medical Clinic in Sikeston, Missouri. He first saw plaintiff when she came to his office on May 13, 1969, complaining of lower abdominal pains and 'increased dyspareunia' (pain during coitus or copulation) and giving him a long surgical and medical history. ¹ On this first visit, defendant prescribed an antibiotic, a tranquilizer and some 'pain pills' and asked plaintiff to return in two weeks. Although she did not visit defendant's office again until 'around' June 20, both she and her husband had, in the meantime, called defendant at home at 'different times of the days and nights.' After plaintiff had reported on this second office visit that she was feeling worse and defendant had completed another examination, his recommendation of a hysterectomy was accepted by plaintiff; and on July 9, 1969, defendant performed that operation at Missouri Delta Community Hospital in Sikeston.

In the course of that operation, defendant accidentally and unintentionally made a small laceration 'about two centimeters . . . a little less than one inch' in length in plaintiff's bladder. This was assigned as a ground of negligence in plaintiff's first amended petition upon which she proceeded to trial, but she did not in the circuit court, and does not here, rely upon that ground. This course was, no doubt, dictated by the depositional testimony of plaintiff's sole medical witness, M. Richard Carlin, M.D., a St. Louis urologist who had never examined or attended plaintiff. As Dr. Carlin explained, the bladder and the uterus lie 'in close proximity' to each other, with the bladder 'in front or closer to the abdominal wall' and the uterus 'immediately behind it.' Accordingly, it is essential to separate the bladder from the uterus in order to remove the latter, and such separation becomes more difficult where, as in the situation under consideration, the surgeon encounters adhesions, i.e., 'scars, sometimes rigid and firm and sometimes filmy and soft, which often go from one organ to the next, and attach them when they might not ordinarily be attached.' Dr. Carlin agreed that a surgeon opening the lower abdomen of a woman, who had undergone previous abdominal operations as had plaintiff, 'would almost certainly find' adhesions, stated that 'the bladder is damaged or opened or entered during . . . a hysterectomy not commonly, but not infrequently--it is not a rare situation,' and acknowledged on cross-examination that he 'did not consider (it) negligence to rent or cut a bladder where there are adhesions or fibroids.'

Hence, plaintiff's trial complaints were confined to her postoperative care, and more particularly to postoperative drainage of her bladder, concerning which both plaintiff's depositional witness Carlin and defendant Cejas, called to the stand during plaintiff's case, were examined in minute detail. During the surgical period, plaintiff's bladder was drained by a size 16 Foley catheter inserted through the urethra; ² and before closing the abdominal incision defendant sutured the bladder laceration and, by testing with a clear saline solution, 'proved there was no leakage.' In keeping with Dr. Carlin's and defendant's testimonial accord that, where there had been a bladder laceration, postoperative drainage of the bladder is essential, defendant provided for postoperative drainage of plaintiff's bladder through two catheters, namely, the size 16 Foley catheter through the urethra (the urethral catheter) and a larger size 24 Foley through the abdominal incision (the suprapubic catheter).

Defendant and Dr. Carlin also were of like mind that the postoperative drainage following surgery involving a bladder laceration should be continuous and adequate to minimize the danger of development of a vesicovaginal fistula, ³ such as that which eventually developed following plaintiff's hysterectomy and spawned this litigation. For the purposes of this opinion, a brief summary of the evidence concerning postoperative drainage will suffice. Pursuant to defendant's orders as reflected in the hospital chart received in evidence, (a) both catheters were irrigated with 50 cc of saline twice each day, (b) for 48 hours postoperatively plaintiff's 'input of liquids' and her 'output or urine' through the catheters into a bag below were monitored and checked each hour to determine whether the catheters were open and draining properly, and (c) thereafter such input of liquids and output into the bag below were checked by the nurses on each shift and by defendant twice each day. On the third and the fifteenth postoperative days, the urethral catheter then in use (which on those days mayhap became 'plugged') was replaced with another. The suprapubic catheter was removed on July 21, the twelfth postoperative day, but the urethral catheter remained in place until July 30, the twenty-first postoperative day. Dr. Carlin agreed with defendant that the use of two catheters afforded 'a safety valve factor--if one doesn't work, the other one will--if one works properly, well, you don't need the other one.' Defendant stated that the suprapubic catheter was never obstructed, and there was no showing to the contrary.

As to whether or not there was urinary leakage outside the catheters, plaintiff's testimony ran along this line: 'I was leaking urine . . .. I don't know where. They told me from around the catheters . . .. I am talking about catheter number two (the urethral catheter) leaking . . .. (I)t was constantly. What I mean it didn't just constantly leak. It did off and on, but at times it did wet . . ..' Plaintiff also stated that she had urinary leakage 'on the way home' from the hospital on August 2 and thereafter. On the other hand, defendant said that, as shown on the hospital chart, there was no evidence of leakage outside the catheters while plaintiff was in the hospital. However, after extensive tests and x-rays some weeks later (plaintiff thought 'around' August 25 or 26) defendant confirmed the existence of a vesicovaginal fistula, which subsequently was repaired surgically in a St. Louis hospital by Dr. Morris Abrams to whom defendant had referred plaintiff for that purpose.

Of course, no presumption that defendant was negligent in the postoperative care of plaintiff might have been indulged simply because of an unfortunate or adverse result (Swope v. Printz, 468 S.W.2d 34, 39(5) (Mo.1971); Hart v. Steele, 416 S.W.2d 927, 931(3), 37 A.L.R.3d 456 (Mo.1967)); and the burden rested upon plaintiff to prove not only (a) that defendant was negligent but also (b) that such negligence caused the injury for which plaintiff seeks to recover. ⁴ Swope v. Printz, supra 468 S.W.2d at 39(6); Fisher v. Wilkinson, 382 S.W.2d 627, 630(3) (Mo.1964). As plaintiff's counsel have recognized, a submissible case on those issues could have been made only by expert medical testimony (Hart v. Steele, supra, 416 S.W.2d at 931--932(7, 8); Williams v. Chamberlain, 316 S.W.2d 505, 511(6) (Mo.1958)); and to supply that indispensable showing they have relied solely upon the depositional testimony of Dr. Carlin, to which we again turn.

Dr. Carlin's testimony was prolix, diffuse, generously flecked with comments and statements not altogether consistent or fairly reconcilable with others in his deposition, and liberally interspersed with views and opinions which were hedged, equivocal or uncertain in nature and pedagogical in tone. Insofar as such opinions were sought with respect to the situation in suit, they were predicated upon a seven--page linguistic portrayal by plaintiff's counsel of a 'hypothetical factual situation.' In that hypothesization, counsel included some of defendant's postoperative orders concerning irrigation of the two catheters and drainage of plaintiff's bladder but significantly made no reference, inter alia, either to the hourly monitoring of 'input of liquids' and 'output of urine' for 48 hours postoperatively or to the subsequent check by the nurses on each shift and by defendant twice each day. (All emphasis herein is ours.) While recognizing that it is not absolutely essential that a hypothetical question should include all material facts in evidence, we are also mindful that a question of this character must fairly hypothesize the material facts reasonably relevant to, and justly presenting, the questioner's theory of the case, so that an answer of assistance to the jury in proper determination of the case may be elicited. Huffman v. Terminal R.R. Ass'n of St. Louis, 281 S.W.2d 863, 870(9) (Mo.1955); Hunter v. St. Louis Southwestern R. Co., 315 S.W.2d 689, 696(6) (Mo.1958); Gavan v. H. D. Tousley Co., 395 S.W.2d 266, 270(7) (Mo.App.1965). In the situation under consideration, maintenance of adequate urinary drainage was the very essence of postoperative care; and in our view of the evidence the 'hypothetical factual situation' depicted by plaintiff's counsel, upon which Dr. Carlin's...