Ray v. Wagner, 41731

• Decision Date: 20 March 1970
• Docket Number: No. 41731,41731
• Citation: 176 N.W.2d 101,286 Minn. 354
• Parties: , 49 A.L.R.3d 497 Mary L. RAY, Appellant, v. Robert M. WAGNER, Respondent.
• Court: Minnesota Supreme Court

Page 101

176 N.W.2d 101

286 Minn. 354, 49 A.L.R.3d 497

Mary L. RAY, Appellant, v. Robert M. WAGNER, Respondent.

No. 41731.

Supreme Court of Minnesota.

March 20, 1970.

Syllabus by the Court

In an action against a physician for damages resulting from his failure promptly to notify a patient that tests showed she might be suffering from cancer, it was proper to permit the jury to find contributory negligence where the patient gave the physician incomplete and misleading information about her employment status, had no telephone where she lived, and failed herself to inquire about the results of the tests.

Robins, Davis & Lyons and Harding A. Orren, Minneapolis, for appellant.

Meagher, Geer, Markham & Anderson and O. C. Adamson, II, and Mary Jeanne Coyne, Minneapolis, for respondent.

OPINION

OTIS, Justice.

This is an action to recover damages against a physician for failing to give a patient prompt notice of the results of a test which showed the possibility of cancer. The jury rendered a verdict for defendant, and plaintiff appeals from an order denying her a new trial.

The plaintiff, Mrs. Ray, first visited Dr. Wagner on August 6, 1962, after selecting him from a telephone directory. She was examined for the purpose of obtaining a contraceptive device. As a routine matter, the doctor secured from her a so-called Pap smear to determine whether or not there was any possibility she was suffering from carcinoma of the cervix. The smear was sent to a laboratory at Northwestern Hospital and was returned within about 2 weeks with a report that it was 'suspicious for malignancy.' The doctor attempted to reach Mrs. Ray by telephone on numerous occasions to advise her of the report and to recommend further procedures. He was unsuccessful until January 1963 when she paid the bill for her medical services. In February, Mrs. Ray was given another Pap smear test, which again was 'suspicious for malignancy.' The Pathology Department of the University of Minnesota Hospitals thereupon performed a biopsy which revealed an 'in situ' carcinoma of the cervix about one millimeter in size. The hospital's gynecology department, however, diagnosed the carcinoma as 'early invasive.' As a result, Mrs. Ray underwent a series of treatments with cobalt and radium therapy which destroyed her ovaries, rendered her sterile, and precipitated symptoms of menopause.

The action was litigated on the theory that the doctor was negligent in failing to notify his patient promptly of her condition and that as a result of her failure to undergo corrective therapy her condition worsened to a point where drastic treatment was required to prevent further progression of the disease.

The case was submitted to the jury on the question of ordinary negligence as well as on the standard of care required of a physician. The issue of contributory negligence was also submitted. After the jury had deliberated for a time, they returned for additional instructions with respect to contributory negligence. That charge was repeated by the court in the presence of counsel.

In denying plaintiff's motion for a new trial, the court noted in its memorandum:

'* * * The evidence disclosed, and the jury could have found, that plaintiff, in furnishing the defendant information as to her occupation and her husband's occupation and her failure promptly to notify the defendant of a change of address was inconsistent with the behavior to be expected of an ordinarily prudent person and, therefore, negligence.'

On appeal, plaintiff claims (1) that the question of contributory negligence should not have been submitted to the jury; (2) that it was error to exclude the...