Price v. Neyland

• Decision Date: 02 May 1963
• Docket Number: No. 17205.,17205.
• Citation: 320 F.2d 674
• Parties: Weldon A. PRICE, Appellant, v. Susanne NEYLAND, as next friend of Michele Marie Neyland, an infant, and Herbert Neyland, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

320 F.2d 674 (1963)

Weldon A. PRICE, Appellant, v.Susanne NEYLAND, as next friend of Michele Marie Neyland, an infant, and Herbert Neyland, Appellees.

No. 17205.

United States Court of Appeals District of Columbia Circuit.

Argued April 5, 1963.

Decided May 2, 1963.

Petition for Rehearing Denied July 1, 1963.

Mr. John L. Laskey, Washington, D. C., with whom Messrs. Thomas S. Jackson and Robert M. Gray, Washington, D. C., were on the brief, for appellant.

Mr. Richard W. Galiher, Washington, D. C., with whom Mr. Joseph O. Janousek, Washington, D. C., was on the brief, for appellees.

Before MAGRUDER, Senior United States Circuit Judge for the First Circuit,^* and BASTIAN and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc July 1, 1963.

WRIGHT, Circuit Judge.

Judgment was rendered against appellant, a pediatrician, in the District Court in an action for malpractice charging mistake in diagnosis and medical mismanagement in the care of a child born November 2, 1953, of a union of parents with Rh factor blood incompatibility.Dr. Price asks reversal of the judgment, alleging insufficiency of the evidence, improper instruction to the jury, and error in the admission of evidence.We affirm.

The Rh, or Rhesus,¹ factor in blood is present in about 85 per cent of the population, who are accordingly classified as having Rh positive blood.The other 15 per cent of the population, without the Rh factor, are classified as Rh negative.A person whose Rh factor is strongly positive is said to be Rh positive homozygous.A child born of an Rh positive homozygous father and an Rh negative mother will have Rh positive blood.Herbert Neyland, the father of the infant Michele Marie Neyland, is Rh positive homozygous, and Mrs. Neyland is Rh negative.Consequently, Michele is Rh positive.

Erythroblastosis fetalis is a malady suffered by babies of parents with incompatible Rh blood factors.In such unions there is usually no difficulty with the first or second pregnancies.However, prior pregnancies tend to "sensitize"the mother, that is, the Rh positive cells which the fetus has inherited from the father filter through the placenta to enter the bloodstream of the mother.As a protective mechanism the mother develops a protein substance, or antibody, which destroys the foreign substance in her blood.These antibodies, however, themselves sometimes filter through the placenta to the fetus and destroy red blood cells.The liver then produces large quantities of bile to eliminate the dead red cells from the bloodstream of the baby.The result is erythroblastosis fetalis.

The presence of erythroblastosis fetalis in a newborn child is disclosed by a combination of clinical symptoms and laboratory tests.The clinical symptoms are anemia, jaundice, enlargement of the spleen or liver and difficulty with respiration.Perhaps the most significant of these is the development of jaundice within the first few days of life.There are, however, two types of jaundice, physiologic and pathologic.Physiologic jaundice is benign and common in normal babies.Pathologic jaundice deposits bile pigments in the brain stem, causing brain damage known as kernicterus.Michele Neyland has kernicterus.

Dr. Price diagnosed Michele's jaundice as physiologic.His diagnosis was based primarily on laboratory tests which reported Michele's Rh factor and Coombs test, which would indicate the presence of antibodies in the red blood cells of the baby, as negative.As a matter of fact, these tests were wrong.No Vandenberg test, which would probe the presence of bile in the brain, was given and no follow-up hemoglobin test was ordered, in spite of the fact that the second blood count, made on November 6th, showed a significant drop in the hemoglobin, admittedly diagnostic evidence of the presence of erythroblastosis fetalis.

Before the baby was born, as shown on the mother's chart which was available to the pediatrician, Mrs. Neyland had a positive Coombs test showing her sensitivity to the Rh positive fetus she was carrying.Her condition became so acute that labor was prematurely induced.The child when born appeared healthy, but within 50 hours of life developed jaundice.Dr. Price, relying on the mistaken laboratory tests made a few hours after Michele's birth, ignored her jaundice, ordered no further tests, and allowed Michele to be brought home.Within a week she had a convulsion, a strong symptom of brain damage.The child was seen by Dr. Price at his office for the first time three weeks after leaving the hospital.Although Dr. Price did not see the baby for three weeks after this visit, the mother was in touch with him on the telephone, advising him of subsequent seizures and continued jaundice.Two months later Dr. Price saw the baby again and was advised of still additional seizures.When the child was six months old she had a seizure in Dr. Price's office, in his presence.Yet the mother was still not advised that her child was suffering from brain damage which would make her a hopeless cripple and limit her life span to five to ten years.When the baby was nine months old, Mrs. Neyland contacted Dr. Price and told him she was taking Michele to another pediatrician.Dr. Price recommended instead that Dr. Lambros, a neurologist, be consulted.Dr. Lambros reported to Dr. Price, who in turn told Mrs. Neyland, for the first time, that the baby had brain damage.

The testimony of various doctors established that a child of an Rh positive homozygous father and a sensitized Rh negative mother would be Rh positive and, in all probability, would suffer from erythroblastosis fetalis at birth.This medical testimony also showed that where laboratory tests are inconsistent with clinical findings, the laboratory tests should be re-run, particularly, in the circumstances of this case, where a laboratory test, obviously wrong, showed the child as Rh negative.The medical evidence also showed that where a child of an Rh positive homozygous father and an Rh negative mother developed jaundice in the first few days of life, a Vandenburg test² was strongly indicated.This same evidence showed that good medical practice would require a follow-up hemoglobin test, in the circumstances of this case, where the second hemoglobin test taken showed a falling blood count.The medical evidence also established that if the proper tests used in this area in 1953 had been run, and re-run where indicated, a diagnosis of pathologic, as distinguished from physiologic, jaundice would have been required.The recognized treatment for pathologic jaundice in this area was in 1953, and is now, an exchange transfusion in which the blood of the baby is replaced with healthy blood.While the incidence of mortality in such operations was, in 1953, ten per cent, the alternative is paralyzing brain damage and early death, and the recognized medical practice at that time, as now, was to undertake the exchange transfusion.

The law with reference to malpractice in Virginia,³ as elsewhere, does not impose liability on a physician for mistake in diagnosis or error in judgment except where that mistake or error results from failure to comply with the recognized standard of medical care exercised by physicians in the same specialty under similar circumstances in the general area in which the physician practices.⁴Thus, in order to fasten liability in a malpractice case, it is necessary that the plaintiff prove, by a preponderance of the evidence: (1) the recognized standard of medical care in the community which would be exercised by physicians in the same specialty under similar circumstances, and (2) the physician in suit departed from that standard in his treatment of the plaintiff.Davis v. Virginian R. Co., 361 U.S. 354, 357, 80 S.Ct. 387, 4 L.Ed.2d 366(1960).On the basis of the evidence here adduced, viewed, as it must be, in the light most favorable to appellee,⁵we cannot say, as appellant contends, that this case should not have been submitted to the jury.There was substantial evidence to support the plaintiff's theory of the case, the jury accepted that theory, and there the matter ends.⁶

Appellant also alleges error in the admission of evidence.A Dr. McCollum, the obstetrician who delivered Michele and a co-defendant on trial with Dr. Price, was called adversely by appellee under Rule 43(b), F.R.Civ.P., and asked, inter alia, whether a second, and positive, Coombs test had been run on Michele while she was still in the hospital.Dr. McCollum declared that he remembered no such test, whereupon his pre-trial deposition was read, in...