Phelps v. Blomberg Roseville Clinic, 46526

• Citation: 284 Minn. 388,253 N.W.2d 390
• Decision Date: 29 April 1977
• Docket Number: No. 46526,46526
• Parties: Leland M. PHELPS, et al., Respondents, v. BLOMBERG ROSEVILLE CLINIC, a partnership, and Richard H. Hedenstrom and LowellW. VanDeRiet, individually, Appellants.
• Court: Minnesota Supreme Court

Page 390

253 N.W.2d 390

Leland M. PHELPS, et al., Respondents, v. BLOMBERG ROSEVILLE CLINIC, a partnership, and Richard H Hedenstrom and LowellW. VanDeRiet, individually Appellants.

No. 46526.

Supreme Court of Minnesota.

April 29, 1977.

Syllabus by the Court

1. The trial court did not err in allowing plaintiffs to offer testimony from a previously undisclosed medical witness since there was no showing that plaintiffs' failure to disclose the witness was willful or that it created undue prejudice to defendants which could not be controlled by limiting the scope of the testimony.

2. Comments made by plaintiffs' medical expert and questions proposed by plaintiffs' counsel concerning unproven allegations that the medicine used by plaintiff could be a carcinogenic substance were not, under the record in this case, so prejudicial as to require a new trial.

3. The trial court properly exercised its discretion in allowing testimony regarding a pathology report from one of plaintiffs' doctors.

Altman Geraghty Mulally & Weiss, James W. Kenney and James R. Gowling, St. Paul, for appellants.

John F. Bonner, Jr., and Stephen B. Bonner, Minneapolis, for respondents.

Considered and decided by the court en banc.

MacLAUGHLIN, Justice.

This is a medical malpractice action in which a jury found defendant doctors negligent in their care and treatment of plaintiff Leland M. Phelps. Defendants appeal from a denial of their motion for judgment notwithstanding the verdict or a new trial, and from the judgment entered. Because we have concluded that there was no prejudicial error during the course of the trial, as alleged by defendants, we affirm.

Defendants Dr. Richard H. Hedenstrom and Dr. Lowell W. VanDeRiet are general practitioners, associated with defendant Blomberg Roseville Clinic (hereafter the Clinic). ¹ Plaintiffs, Leland M. Phelps and Marion L. Phelps, are husband and wife who had been patients of the Clinic since 1964.

During the summer of 1971, Phelps noticed some small growths on his penis under the foreskin and went to the Clinic on August 5, 1971, where he was seen by Dr. Hedenstrom. Since he was not sure whether the lesions were warts or tumors, Dr. Hedenstrom decided to refer Phelps to Dr. David W. Anderson, St. Paul, a specialist in dermatology. Phelps made an appointment with Dr. Anderson and on August 11, 1971, Dr. Anderson removed some small warts from Phelps' eyelid and took a biopsy of one of the penile lesions, sending it to the Charles T. Miller Hospital for examination by the pathology department. Soon thereafter a pathology report was sent to Dr. Anderson, diagnosing the lesion as a non-malignant seborrheic keratosis.

Dr. Anderson proceeded to treat the lesions with a 20-percent solution of podophyllin during six subsequent visits by Phelps, from August 18, 1971, to November 10, 1971. On August 27, 1971, Dr. Anderson sent a letter to Dr. Hedenstrom who had referred Phelps, stating that the several lesions on the penis were warts and "one lesion was biopsied to make sure it was a wart and later these were treated with podophyllin."

On December 30, 1971, Phelps returned to the Roseville Clinic having noticed no change in the largest lesion and with complaints of decreased libido because of the pain caused by the treatments. He told Dr. Hedenstrom, whom he saw on that date, that he was having difficulty getting to Dr. Anderson's office and asked to continue the treatments at the Clinic. Dr. Hedenstrom agreed to resume responsibility for the treatments and applied podophyllin. Phelps had several subsequent treatments of podophyllin applied by Dr. Hedenstrom or by Dr. VanDeRiet.

On June 8, 1973, Phelps complained of the frequency of his visits for treatment and the time lost from his employment. Dr. Hedenstrom agreed that Phelps could continue the treatment himself at home and supplied him with a bottle of podophyllin and some Q-tips to use as applicators. Dr. Hedenstrom said that if the treatments were not successful Phelps should return to the Clinic, and wrote on Phelps' chart "Recheck in one month. Not one hundred percent."

From June 8, 1973, Phelps applied the podophyllin solution himself at 2-week intervals, as directed by Dr. Hedenstrom. In the fall of that year, Phelps noticed a change in the appearance of the lesion and thought it was finally "breaking up." However, after becoming concerned when he noticed a dark brown spot, Phelps returned to the Clinic on March 5, 1974, where he saw Dr. VanDeRiet. Dr. VanDeRiet immediately recommended that a new biopsy be taken and an excision was performed. Within a few days Phelps received a telephone call from Dr. VanDeRiet informing him that the lesion was malignant and had been diagnosed as squamous cell carcinoma.

Dr. VanDeRiet referred Phelps to Dr. Everett J. Duthoy, a specialist in urology. Phelps saw Dr. Duthoy and learned that he would have to undergo a partial penectomy. On March 29, 1974, Dr. Duthoy removed 2 inches of the distal end of Phelps' penis, and the inguinal lymph glands in his groin. In April 1974, as a result of metastasis to a lymph node in the left groin, Dr. Duthoy performed an exploratory operation removing 100 additional lymph nodes in Phelps' abdomen. In June 1974, a third operation was performed by a plastic surgeon to close the wounds in Phelps' groin which had not healed.

Thereafter, plaintiffs brought suit against the Clinic and against Drs. Hedenstrom and VanDeRiet, individually. They alleged that negligent and unskillful treatment by defendants over a period of many months had aggravated, caused, or created a malignancy which resulted in the partial penectomy and removal of the surrounding lymph glands, and sought damages as a result of these claims.

Drs. Hedenstrom and VanDeRiet denied any careless or negligent conduct and alleged that plaintiffs' loss or damage was beyond their control and that Phelps himself had been negligent in not following their instructions, causing the need for surgery and resulting damages.

A jury, by special verdict, found that Dr. Hedenstrom was 40 percent negligent, that Dr. VanDeRiet was 35 percent negligent, and that Phelps was 25 percent negligent. The jury found that Leland M. Phelps had sustained damages of $100,000 and that his wife, Marion L. Phelps, had sustained damages of $6,000. Judgment was entered against defendants in the sum of $79,500 and, following denial of defendants' motion for judgment notwithstanding the verdict or a new trial, this appeal was taken. Defendants have not argued that there was no negligence on their part, but have alleged several errors during the trial which they claim necessitate a new trial.

1. The principal argument advanced by defendants is that the trial court erred in admitting testimony of a previously undisclosed expert medical witness.

As part of the pretrial discovery procedure defendants served interrogatories on plaintiffs' counsel calling for the disclosure of any expert medical witnesses whom plaintiffs intended to call in support of their claim of negligence. Plaintiffs answered that they intended to call Dr. Leonard C. Arnold, a general practitioner from Chicago, Illinois, and Dr. Donal D. O'Sullivan, chief of the department of pathology at Augustana Hospital in Chicago. Plaintiffs' answers further stated the nature and substance of the testimony of each expert witness.

The trial began on Tuesday, September 9, 1975. On the afternoon of September 11, plaintiffs called Dr. O'Sullivan, the pathologist, but he was not permitted to express an opinion as to negligence. The trial court then recessed for 3 days until Monday, September 15.

On Monday morning, prior to the scheduled resumption of the trial, plaintiffs moved the trial court for permission to call an additional expert witness, Dr. Milton Seifert, a general practitioner from Excelsior, Minnesota. They...