Perin v. Hayne

Decision Date19 September 1973
Docket NumberNo. 55949,55949
Citation210 N.W.2d 609
PartiesIlene PERIN, Appellant, v. Robert A. HAYNE, Appellee.
CourtIowa Supreme Court

Marlyn S. Jensen, Des Moines, for appellant.

Eugene Davis and Steven C. Cross, Des Moines, for appellee.

Heard by MOORE, C.J., and MASON, REYNOLDSON, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

This is an appeal from a directed verdict for a doctor in a malpractice action. We affirm.

The claim arose from an anterior approach cervical fusion performed on plaintiff Ilene Perin by defendant Robert A. Hayne, a Des Moines neurosurgeon, on November 26, 1968. The fusion was successful in eliminating pain, weakness and numbness in plaintiff's back, neck, right arm and hand caused by two protruded cervical discs, but plaintiff alleged she suffered paralysis of a vocal chord because of injury to the right recurrent laryngeal nerve during surgery. The paralyzed vocal chord impaired plaintiff's voice which had been normal before surgery. The injury jury reduced her voice to a hoarse whisper.

She sought damages on four theories: specific negligence, res ipsa loquitur, breach of express warranty and battery or trespass. After both parties had rested, trial court sustained defendant's motion for directed verdict, holding the evidence insufficient to support jury consideration of the case on any of the pleaded theories. Plaintiff assigns this ruling as error. We must review each of the pleaded bases for recovery in the light of applicable law and the evidence.

I. Specific negligence. Plaintiff alleges there was sufficient evidence to support jury submission of her charge defendant negligently cut or injured the recurrent laryngeal nerve. Plaintiff had protruded discs at the level of the fifth and sixth cervical interspaces. The purpose of surgery was to remove the protruded discs and fuse the vertebrae with bone dowels from her hip. Removal of a disc ends the pinching of the nerve in the spinal column which causes the patient's pain. The bone supplants the disc.

The procedure involves an incision in the front of the neck at one side of the midline at a level slightly below the 'adam's apple.' Four columns run through the neck. The vertebrae and spinal chord are in the axial or bone column at the rear. In order to get to the axial column the surgeon must retract the visceral column which lies in front of it. The visceral column, like the vascular colums on each side of it, is covered with a protective fibrous sheath, called fascia. It contains the esophagus and trachea. The recurrent laryngeal nerve, which supplies sensitivity to the muscles that move the vocal chords, is located between the esophagus and trachea.

The surgeon does not enter the visceral column during the cervical fusion procedure. The same pliancy which enables the neck to be turned enables the visceral column to be retracted to one side to permit access to the axial column. The retraction is accomplished by using a gauze-padded retractor specifically designed for retraction of the visceral column during this surgery.

The record shows defendant used this procedure in the present case. Plaintiff was under general anesthetic. The anesthesia record is normal, and there is no evidence of any unusual occurrence during surgery. Defendant denied any possibility the laryngeal nerve was severed. He said it could not be served unless the visceral fascia was entered, and it was not. He also believed it would be impossible to sever the nerve during such surgery without also severing the esophagus or trachea or both.

Dr. Walter Eidbo, a Des Moines surgeon, testified for plaintiff. He is not a neurosurgeon but has assisted neurosurgeons including defendant in anterior approach cervical fusion surgery. Dr. Eidbo confirmed that the visceral column is not entered in such surgery. He contrasted it with thyroid surgery in which the thyroid gland is entered and there is a risk the laryngeal nerve, which runs through it, may be cut. He said it is usually possible to avoid injury to the nerve during the cervical fusion procedure. 'It would not be usual' to encounter the nerve. He did not express an opinion as to the precise nature of the injury or its cause in this case. He did speculate it might be possible to stretch the nerve too far in retracting the visceral column. He also said, 'If you should happen to hit it as you were pulling it or if your retractor would touch on it, it might be just enough to do it. I don't know.' Dr. Eidbo also testified the injury could occur despite the exercise of all proper skill and care.

Defendant testified he did not know the cause of the injury but presumed it resulted from contusion of the nerve incident to retraction of the visceral column. He thought plaintiff's laryngeal nerve may have been peculiarly susceptible to such injury. He insisted the surgery was done just as it always was and if he were doing it again he would do it the same way. He said one study has shown the surgery will result in paralysis of a vocal chord in two or three-tenths of one percent of cases in which it is used. He also said there is no way to predict or prevent such instances.

The anterior approach procedure was developed in about 1954 and by 1960 special instruments had been devised to improve it. Defendant used it for the first time in December 1961. At the time of his surgery on plaintiff he had done 462 of the operations. No voice complications had resulted. As of the time of trial he had done 729 of the operations. One additional patient suffered a paralyzed vocal chord. With that patient the disc involvement was in the upper thoracic area and the visceral column had to be retracted more than usual.

As previously noted, the surgery on plaintiff was successful in terminating the protruded disc nerve impingement which had caused considerable pain, weakness and numbness in her back, neck, right arm and hand.

In considering the propriety of the verdict directed for defendant we give the evidence supporting plaintiff's claim the most favorable construction it will reasonably bear. Rule 344(f)(2), Rules of Civil Procedure.

We recognize three possible means to establish specific negligence of a physician. One is through expert testimony, the second through evidence showing the physician's lack of care is so obvious as to be within comprehension of a layman, and the third (actually an extension of the second) through evidence that the physician injured a party of the body not involved in the treatment. The first means is the rule and the others are exceptions to it. Sinkey v. Surgical Associates, 186 N.W.2d 658, 660 (Iowa 1971).

In this case plaintiff asserts a jury question was generated by the first and third means. We do not agree.

Plaintiff alleges the laryngeal nerve was negligently cut or injured. The record is devoid of any evidence the nerve was severed during surgery. At most the expert testimony from Dr. Eidbo and defendant would support a finding of negligence if the nerve had been cut, but there is no evidence it was. The evidence from both experts tended to show injury to the nerve would occur from retraction of the visceral column in a small percentage of cases in spite of all possible care.

The doctors agree the technique employed by defendant was proper. The sole basis for suggesting the expert testimony would support a finding of specific negligence is that the nerve was injured during retraction. Where an injury may occur despite due care, a finding of negligence cannot be predicated solely on the fact it did occur. Prosser on Torts, § 39 at 228 (Fourth Ed. 1971); see Hair v. Sorensen, 215 Iowa 1229, 247 N.W. 651 (1933); Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 339, 372 P.2d 97, 99 (1962) ('The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation.').

Plaintiff also maintains there is evidence of negligence from the fact this is a case of injury to a part of the body not involved in the treatment. However, that is not so. The surgical procedure did include retraction of the visceral column. It was very much in the surgical field.

We have been unable to locate any other case involving a claim based on vocal chord paralysis as a result of anterior approach cervical fusion surgery. Several such claims have been litigated after thyroidectomies. Plaintiff relies on two cases where vocal chord paralysis occurred following thyroidectomies, Patrick v. Sedwick, 391 P.2d 453 (Alaska 1964) and McPhee v. Bay City Samaritan Hospital, 10 Mich.App. 567, 159 N.W.2d 880 (1968). Neither case is apposite. In Patrick the nerve was severed and there was expert testimony surgical destruction of the nerve was consistent with due care only in circumstances which the jury could find absent in that case. In McPhee there was expert testimony the nerve could and should have been avoided in the surgery involved. The testimony in the present case is the converse of that in Patrick and McPhee. For cases finding insufficient evidence of negligence in alleged surgical injury to the laryngeal nerve during thyroidectomies see Watson v. Clutts, 262 N.C. 153, 136 S.E.2d 617 (1964); Dembicer v. Rosenthal, 53 Misc.2d 777, 279 N.Y.S.2d 943, aff'd 20 A.D.2d 758, 247 N.Y.S.2d 862 (1962); Roberts v. Wood, 206 F.Supp. 579 (D.C.Ala. 1962); Di Filippo v. Preston, 53 Del. 539, 173 A.2d 333 (1961); Maggi v. Mendillo, 147 Conn. 663, 165 A.2d 603 (1960); annot. 37 A.L.R.3d 464, 504 et seq.

Trial court did not err in directing a verdict for defendant on the issue of specific negligence in this case.

II. Res ipsa loquitur. Plaintiff also alleges the applicability of the doctrine of res ipsa loquitur. Our most recent statement of the doctrine appears in Fischer, Inc. v. Standard Brands, Inc., 204 N.W.2d 579, 583 (Iowa 1973):

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