Patelczyk v. Olson

• Decision Date: 05 February 1980
• Docket Number: Docket No. 78-3305
• Citation: 95 Mich.App. 281,289 N.W.2d 910
• Parties: Rose PATELCZYK and William Patelczyk, Plaintiffs-Appellants, v. Walter R. OLSON, M. D., Defendant-Appellee. 95 Mich.App. 281, 289 N.W.2d 910
• Court: Court of Appeal of Michigan — District of US

Page 910

289 N.W.2d 910

Rose PATELCZYK and William Patelczyk Plaintiffs-Appellants, v. Walter R. OLSON, M. D., Defendant-Appellee.

Docket No. 78-3305.

95 Mich.App. 281, 289 N.W.2d 910

Court of Appeals of Michigan.

Feb. 5, 1980.

Released for Publication April 4, 1980.

Bruce L. Houghton, James M. Collins, Neguanee, for plaintiffs-appellants.

William I. McDonald, Marquette, for defendant-appellee.

Before ALLEN, P. J., and BASHARA and BEASLEY, JJ.

[95 MICHAPP 282] BEASLEY, Judge.

Plaintiffs, Rose Patelczyk and William Patelczyk, sought damages from defendant, Walter R. Olson, for medical malpractice.

Defendant, a board certified general surgeon in Munising, performed a mastectomy on Rose Patelczyk in 1975. Both she and her husband, William Patelczyk, who has filed a derivative claim, contend that defendant failed to prescribe radiation therapy and/or chemotherapy as postoperative treatment, either or both of which would have aided in preventing the spread of further cancer. Plaintiffs also claim defendant failed to refer her to specialists when she requested. At the time of trial in 1978, the cancer had metastasized to her lungs and bones, and she was hospitalized. ¹

Upon completion of plaintiffs' proofs, the trial court directed a verdict in favor of defendant. Plaintiffs appeal as a matter of right.

[95 MICHAPP 283] On appeal from a directed verdict, the question is, considering the evidence in a light favorable to the plaintiff, is a prima facie case of liability established. ²

Our review indicates that it is not; consequently, we affirm the trial court's direction of a verdict for defendant.

In this malpractice suit, the general standard of care imposed upon defendant general surgeon relates to what a reasonably prudent general surgeon would do or would not do under the same or similar circumstances. Malpractice means the failure to do something which a reasonably careful general surgeon would do or the doing of something a reasonably careful general surgeon would not do under the same or similar circumstances.

Subject to certain exceptions, which are not relevant here, expert testimony from those learned in the medical profession is required to establish the standard of professional practice in the community and to determine whether it has been breached. ³ In Roberts v. Young, ⁴ the Supreme Court applied this general rule to require expert testimony on the questions of whether and what a physician should advise a patient with respect to possible postoperative results.

The issue here is slightly different. Plaintiffs' claims are not of a failure to point out possible risks and results of surgery; rather, they are that defendant failed to inform of and to prescribe forms of possible postoperative treatment for cancer and, specifically, radiation (cobalt) therapy and [95 MICHAPP 284] chemotherapy. Thus, this is not the usual "informed consent" issue.

Plaintiffs attempted to prove their case by the testimony of defendant and three other doctors; Dr. Martinius L. Lexmond, a board qualified general surgeon and general practitioner engaged in family medicine in Ishpeming, Dr. Juan del Regato, a professor of radiology at the University of South Florida, and Dr. Wilson G. Newell, a radiologist at Bell Hospital in Ishpeming.

Reviewing their testimony, we do not find sufficient evidence that the standard of care applicable to defendant required him to prescribe radiation therapy or chemotherapy as postoperative care for plaintiff, Rose Patelczyk. Whether we apply a national standard of care for board certified general surgeons, as is now required under Francisco v. Parchment, ⁵ or a local community standard of care for general practitioners who perform surgery, as was previously required under LeBlanc v. Lentini, ⁶ there is insufficient evidence here that defendant violated his duty to perform as a reasonably prudent board certified general surgeon would have performed under the same or similar circumstances. Specifically, we do not find evidence here that there is a standard of care applicable to defendant that would have required him, as part of postoperative mastectomy care after a 1975 mastectomy, to prescribe radiation (cobalt) treatments and/or chemotherapy.

Neither is there evidence here that what defendant did by way of postoperative care, namely, continuing observation, or what defendant did not do in regard to postoperative care constituted a violation of the standard of practice applicable to defendant.

[95 MICHAPP 285] Regarding the content of the expert testimony offered by plaintiffs, defendant doctor was called as a witness by plaintiffs.

Michigan law permits a medical malpractice plaintiff to elicit the required expert medical testimony from the defendant physician. ⁷ In such instances, the burden of proof remains with the plaintiff. ⁸ In the instant case, the issue is not whether plaintiffs rightfully employed defendant's expert testimony to make out a case sufficient for submission to the jury, but whether defendant's testimony, in fact, established a standard of practice, informing patients of available, postoperative treatment, and that what defendant did, or did not do, was contrary to that standard of practice. In evaluating defendant's testimony for purposes of measuring the correctness of the directed verdict, this court must read it in the light most favorable to plaintiffs. ⁹ Dr. Olson testified with regard to his own practice in informing cancer patients of postoperative treatment alternatives:

"(By Mr. Collins, (plaintiffs' attorney) continuing): What is you practice, doctor with regard to consulting with your patients after the surgery.

"A (Dr. Olson) They are informed of the findings of the surgery.

"Q Do you discuss with them follow-up treatment?

"A Yes. They are told that what was involved with the surgery, what was done, what was found. When the final pathology report comes back, what the findings of the pathologist were and then if there is further treatment[95 MICHAPP 286] indicated, and sometimes there's more than one route to go, the options are discussed with the patient.

"Q What are the options for a post-cancer or a post-mastectomy?

"A The options, of course, for the treatment to begin with is surgery is the basis of the treatment. Then following that, there is a wide difference of opinion as to what should be done next, whether no treatment is done, whether radiation therapy is given, whether chemotherapy is given, or a combination of the two are given, and

"Q Doctor, in your practice, do you tell the patient, give the patient is it your practice to tell them what these alternatives are?

"A Yes.

"Q You tell them how available these alternatives might be?

"A Yes.

"Q Now, you tell them that there is radiation treatment available?

"A Yes."

He did not intimate that this was the customary practice of skilled medical practitioners either in his community or similar communities. When asked whether it was the practice to follow-up with radiation therapy or chemotherapy in this area, he answered, "it depends on who you talk to". Obviously, Dr. Olson believes the better and significant medical opinion did not advocate the general use of radiation therapy or chemotherapy after a mastectomy. However, even assuming that his testimony established the standard of practice followed by a general surgeon in informing his patient of postoperative alternatives, there is no indication in defendant's testimony that he violated the standard of care.

Compare this situation to that in McPhee v. Bay [95 MICHAPP 287] City Samaritan Hospital, ¹⁰ where the defendant physician stated at trial that he had performed over 100 thyroidectomies, and that in performing such an operation, the laryngeal nerve should be avoided, and to Mitz v. Stern, ¹¹ where the defendant physician testified that it is not customary practice to come into contact with the sphincter muscles when performing a transurethral resection.

We find that although Dr. Olson stated he is a board certified general surgeon, his testimony did not include factual information by way of foundation to show that he, in fact, knew what the applicable general standard of care was. Although Dr. Olson stated what was customarily done in his own practice, he did not assert it to be the applicable standard, nor did he state what would constitute an impermissible deviation from any applicable standard. Consequently, we do not find the testimony of Dr. Olson establishing a prima facie case for submission to a jury.

Second, we consider plaintiffs' claim that the testimony of Dr. Lexmond established the standard of care applicable to defendant in providing postoperative treatment after a mastectomy.

Prior to trial, the trial court granted a motion to strike the testimony of Dr. Lexmond as contained in his videotape deposition. The trial court possesses discretion to admit or exclude expert testimony, and, on appeal, the trial court's decision will not be disturbed by this court unless it is clearly erroneous. ¹²

Dr. Lexmond expressed a preference for use of [95 MICHAPP 288] radiation treatment in his own practice, but he said that, except where a patient is not "rational", the decision whether to use radiation therapy or chemotherapy is for the patient. However, he declined to say that the use of radiation therapy and/or chemotherapy are the only acceptable treatments. Also,...