Roberts v. Wood

• Decision Date: 27 July 1962
• Docket Number: Civ. A. No. 2449.
• Parties: Mrs. Lucille ROBERTS, Plaintiff, v. Arthur A. WOOD, M.D., Defendant.
• Court: U.S. District Court — Southern District of Alabama

206 F. Supp. 579

Mrs. Lucille ROBERTS, Plaintiff, v. Arthur A. WOOD, M.D., Defendant.

Civ. A. No. 2449.

United States District Court S. D. Alabama, S. D.

July 27, 1962.

George M. Simmerman, W. L. Richardson, Pascagoula, Miss., Albert Sidney Johnston, Jr., Biloxi, Miss., Paul W. Brunson, Mobile, Ala., for plaintiff.

Inge, Twitty & Duffy, Mobile, Ala., for defendant.

DANIEL HOLCOMBE THOMAS, District Judge.

Jurisdiction exists by virtue of diversity of citizenship in that plaintiff is a citizen of the state of Mississippi and defendant is a citizen of the state of Alabama and the amount sued on exceeds the sum of $10,000 exclusive of interest and costs.

Mrs. Roberts first visited Dr. Wood in 1953 at the suggestion of her family doctor in Mississippi. It was then determined that plaintiff had a diffuse toxic goiter and that an operation to remove a portion of her thyroid gland was necessary. As plaintiff was pregnant, this operation was not performed until sometime during the following year and after the birth of her child. The post-operative effect of the operation, in which 95% of the gland was removed, was a smooth, uneventful recovery and is not at issue here other than as background information relative to a second operation in 1959 which constitutes the subject matter of this suit.

Between 1954 and 1959 evidence of toxic goiter, extreme nervousness and anxiety, together with the recurrence of a nodule in the neck, prompted plaintiff to seek further medical attention. She consulted with her family physician who recommended that she see a local specialist. Plaintiff and her husband decided, however, to return to Dr. Wood inasmuch as he had performed the first operation and would be more familiar with her condition and medical history. The defendant determined a second operation was required and prescribed pre-operative medication to prepare the patient for this. As it will be necessary to discuss in some detail the mechanics of the operation later in this opinion, that matter will not now be set out. Suffice it to say that the operation was performed in June of 1959 without any apparent complications; on the contrary, the operation appeared to be physiologically successful in all respects. Immediate post-operative examination revealed that the patient had full use of both vocal chords and had not suffered any incidental injury in the area where the surgery was accomplished.

Sometime thereafter the plaintiff experienced a hoarseness in her voice which interfered with her normal speech. This condition developed to the point where the plaintiff lost the use of her true vocal chords and unconsciously substituted the use of her false vocal chords. At the trial she spoke in what is best described as a loud stage whisper. It was the opinion of one of defendant's experts, a laryngologist, that the plaintiff is malingering, that the use of the false vocal chords is a deliberate and conscious effort on her part. Plaintiff's expert testified that in his opinion, if one has the use of his true vocal chords, he cannot use his false vocal chords. Neither of these views reflects those of the majority of the experts or of the Court. To begin with, this lady has been suffering from the condition for nearly three years, and she is obviously distressed and very much concerned over her lack of ability to phonate properly. In addition, the demonstration of the use of the false vocal chords by one of the doctors negates the testimony in that regard of plaintiff's expert. The Court also expresses its opinion that the institution of this suit was not, as suggested by counsel for defendant, inspired by any reasons of malice or revenge on behalf of plaintiff or her husband. If the considerable amount of medical attention, with its attendant high costs, this family has been required to seek in the last few years has made them perhaps more anxious than some for satisfactory results and an end to the expense, it should not be taken to infer an opprobrious motive in bringing this suit. Although plaintiff's condition is subject to improvement, as will be noted later, it nevertheless exists now and is a very serious handicap to her.

It is difficult to determine when this condition was brought to the attention of Dr. Wood. According to the plaintiff's testimony, she told him of the trouble before being discharged from the hospital and again on numerous visits to his office and up to the time of her last visit to him on November 11, 1959. Mrs. Roberts stopped seeing the doctor then, although he told her to return in two weeks; but she continued visits to various doctors in and around Pascagoula, Mississippi. The defendant testified that while he was aware of a hoarseness which he thought would gradually improve, the first notice he had of any voice change was in a letter to him from the plaintiff's husband dated August 16, 1959. He further stated that on all visits subsequent to the operation the patient seemed to be using her true vocal chords.

Regardless of when this condition (the use of the false vocal chords) did develop, the proof is ample to support the conclusion that it was not while the patient was hospitalized. But the important question for purposes of determining the defendant's liability is not when the condition developed, but rather why.

Dr. Claude Warren, a court-appointed ear, nose, and throat specialist, upon examining the plaintiff, determined that she is suffering from paralysis of abduction of the right vocal chord, which is due to failure of the recurrent laryngeal nerve to function properly. He further found that the right chord is affixed near the mid-line and that the left chord is unimpaired and capable of normal movement. Plaintiff contends that this condition is due to the negligent manner in which the operation was performed, resulting in injury to the recurrent laryngeal nerve.

The defendant does not deny that the nerve fails to function and that the failure may be due to the operation. He asserts, however, that risk of injury to this nerve is a normal and inherent hazard in the performance of all thyroidectomies; that the hazard is increased with a second operation, particularly when, as here, the nodule to be removed is adhered to the nerve; and that paralysis of abduction of one vocal chord does not preclude the use of normal voice.

In passing on the issue of negligence, insofar as regards the operation itself, the Court is presented with two questions: Did the defendant select the correct surgical technique; and, did the defendant fail to perform the operation by the technique selected by him in accordance with that degree of care and skill which the law imposes upon him? An answer to these questions requires a consideration of the testimony of the various expert witnesses who appeared at the trial. That which now follows summarizes the most pertinent portions of that testimony.

The use of the vocal chords is controlled by impulses sent from the brain through the nervous system to the muscles attached to the vocal chords. There are two sets of nerves which serve as conduits of the impulse in this relay, the superior laryngeal nerves and the recurrent laryngeal nerves, with one of each affecting the use of each vocal chord. The superior laryngeal nerves control the motion of adduction, that is, the movement of the vocal chords towards each other. The recurrent laryngeal nerves control the motion of abduction, that is, the movement of the vocal chords away from each other. The recurrent laryngeal nerve which controls the movement of the right vocal chord now fails to function.

It is universal knowledge among surgeons that risk of injury to the recurrent laryngeal nerves presents one of several inherent hazards in performing a thyroidectomy. This is due primarily to the intimate relationship of these nerves to the thyroid gland because of variations in individuals of the course of those nerves around or, in some cases, through the thyroid gland. The hazard is increased because of the great sensitivity of these nerves to injury which may be produced by complete or partial severance, stretching, trauma, edema, or scar tissue. One of the main problems in a thyroidectomy is, therefore, to perform the operation so as to avoid injury to these nerves. Surgeons are divided on two alternative techniques to accomplish this. Both techniques are acceptable, both are used in the Mobile area, and in some cases both are used by the same doctor in different instances.

The first technique is the so-called standard technique. In this operation the surgeon removes the greater portion of the thyroid gland leaving a residue in the area where the nerves would normally be located. He makes no attempt to expose or otherwise isolate the recurrent laryngeal nerves but relies on his knowledge of the area around the gland and by avoiding dissection of that area adjacent to the nerve attempts to protect it from injury.

The second technique is the Lahey method, a more modern procedure whereby the nerves are visualized, identified and put to one side. This is accomplished by turning the whole gland up and exposing the recurrent laryngeal nerve throughout its course as it passes behind the gland in intimate relationship with it at this point of entrance into the larynx. The gland may then be either partially or wholly removed.

While both of these techniques are correct, neither one entirely eliminates the possibility of damage to the nerve. The possibility exists in the standard technique because the nerve may not be in its normal location. It exists in the Lahey technique because the mere handling of the nerve produces trauma which may be sufficient to cause permanent damage. Moreover, regardless of which technique is used, there is an irreducible minimum...