Robertson v. LaCroix

Citation534 P.2d 17,1975 OK CIV APP 14
Decision Date25 March 1975
Docket NumberNo. 47485,No. 1,47485,1
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
PartiesStormy Gail ROBERTSON, now Staton, Appellant, v. Julius A. LaCROIX, M.D., Appellee

Don Ed Payne, Hugo, for appellant.

Calvin W. Hendrickson, Oklahoma City, for appellee.

BOX, Judge:

An appeal by Stormy Gail Robertson, now Staton, appellant and plaintiff in the trial court, from an order of the District Court of Choctaw County, sustaining a demurrer to plaintiff's evidence in favor of the appellee and defendant below, Julius A. LaCroix, M.D.

Plaintiff brought this action to recover damages for personal injuries allegedly sustained as a result of certain acts of negligence committed by her physician, Dr. LaCroix. She had been suffering from a chronic inflammatory disease of the female reproductive organs for some years and regularly consulted Dr. LaCroix for this problem. In May of 1972, Dr. LaCroix determined that plaintiff's deteriorating condition necessitated abdominal surgery. Plaintiff entered Choctaw Memorial Hospital on May 31, 1972 and on the following day Dr. LaCroix performed sugery upon her, resulting in the removal of plaintiff's uterus, fallopian tubes, ovaries and appendix. She remained hospitalized until June 9, 1972.

Dr. LaCroix subsequently discovered that plaintiff had a vesico-vaginal fistula, which is an opening between the bladder and the vagina. This defect, approximately one centimeter in diameter, was causing urine to flow from her bladder into her vagina and on to the outside of her body. Corrective surgery was required and was performed by Dr. Eugene Todd in the latter part of September, 1972. Plaintiff's recovery from this surgical procedure was uneventful, except that her bladder capacity was permanently diminished. She subsequently brought this action contending as her primary theory of recover that during the operation the defendant negligently punctured, cut or otherwise caused with some instrument, the identity of which was unknown to her, the opening in her bladder.

Plaintiff testified at trial that three to four days prior to her discharge from the hospital she began to have difficulty retaining urine. She complained to nursing personnel concerning this problem, and they placed a pad on her bed. Her urine retention difficulties worsened during the remainder of her hospital confinement and following her release. This problem eventually progressed to the point that the leakage of urine was constant, requiring her to wear diapers and rendering her unable to perform household duties or care for her children.

Plaintiff testified that she complained to defendant about this difficulty numerous times. Finally on June 21, 1972, defendant saw plaintiff in his office and placed a catheter in her bladder in an effort to alleviate what he apprehended to be a bladder problem. This procedure was unsuccessful and plaintiff returned to defendant's office, was again examined and at this time the fistula was discovered.

According to the testimony of plaintiff and her mother, Cady Castleberry, plaintiff had a conversation with Dr. LaCroix either on June 21, 1972, when the fistula was discovered, or a few days thereafter. Defendant was allegedly asked what caused the fistula. Plaintiff testified that he responded he 'had racked his brain trying to figure out what he had done differently or he had done wrong, but the only thing he knew was that he just made a mistake and got over too far.' Mrs. Castleberry's recollection of this remark was: 'He said he had thought and thought and he couldn't think of anything unless he just made a mistake of going over a little too far, getting over a little too far in the surgery.'

Dr. Lacroix, who was called to testify as plaintiff's expert witness, stated that there were two possible causes of plaintiff's fistula. 'It could have been made by an incision or a puncture of the bladder by an instrument or by a suture through the wall of the bladder or it could have been due to an embarrassment of the circulation in the area which in turn would cause the dying of the tissue and a hole to form at some later date.'

Dr. LaCroix ruled out the possibility that the fistula could have been caused by an instrument or a suture because no instruments or sutures were employed directly on the bladder, although some instruments were used as close to the bladder as a quarter of an inch. He also stated that if some instrument had interfered with the bladder, the mistake would have been recognized immediately because it would cause noticeably excessive bleeding.

These conclusions were partially contradicted by the testimony of Dr. Todd, which was taken by deposition and read to the jury. Dr. Tood was asked at what point in time a fistula caused by a misplaced suture during surgery would be noticed and the following colloquy occurred.

'A It depends on whether it's in the wall of the bladder, through the wall of the bladder, just in the edge of the bladder, or . . .

Q Well, if the suture, itself, completely penetrated the wall of the bladder the fistula would really be present at that time?

A Not necessarily, it would usually take a few days to develop . . .

A I think, short of just making an incision in the bladder, itself, and leaving a hole in the bladder, and probably removing some tissue to the bladder, to leave a good gap there, that a fistula usually takes some time to develop; few days to weeks, after that.'

Dr. LaCroix testified that the plaintiff was catherized for approximately 48 hours after the surgery and that during this time, several hundred cc's of urine was collected by the catheter. He concluded that this was evidence that the fistula did not occur during the surgery but must have developed some days thereafter.

According to Dr. LaCroix's testimony, if the fistula was caused by an embarrassment of the circulation and consequent death of tissue, it would require a period of ten days to two weeks to develop. Dr. Todd essentially concurred with the defendant in these conclusions, although he stated that such a fistula would require from two to four weeks to develop.

At the close of plaintiff's evidence the trial court sustained defendant's demurrer. Accordingly, the question presented by this appeal is whether plaintiff's evidence, viewed in the light most favorable to her, established a 'prima facie case' of defendant's negligence. More specifically, the questions dispositive of this appeal are:

(1) Whether plaintiff's evidence was sufficient to establish that the alleged malpractice was the 'proximate cause' of the injury for which she complains;

(2) Whether plaintiff failed to produce evidence sufficient to establish the medical standard in the community; and

(3) Whether a statement attributed to the defendant constituted an extrajudicial admission of negligence.

The trial court was bound to accept as true all evidence favorable to the plaintiff and every reasonable inference to be drawn therefrom, while disregarding any conflicting evidence favorable to the defendant. Martin v. Stratton, Okl., 515 P.2d 1366. The demurrer to plaintiff's evidence should not have been sustained unless there was an 'entire absence of proof to show any right of recovery.' Martin v. Stratton, supra.

It is well settled that in all but the extraordinary medical malpractice case, the plaintiff has the burden of producing expert testimony to support a prima facie case of negligence. As the court observed in Orthopedic Clinic v. Hanson, Okl., 415 P.2d 991, at page 995, if the origin of the injury is subjective or obscure and not readily apparent to a layman or if there are several equally probable causes of the condition, testimony of a qualified physician is essential to establish a reasonable probability that the physician's negligence caused the injury. This is such a case.

As we noted above, Dr. LaCroix testified that there were two possible causes of plaintiff's injury: either an incision or puncture of her bladder or an embarrassment of her circulation in the area injured. Only the former of the two causes is consistent with the theory that Dr. LaCroix was negligent. Thus Dr. LaCroix and Dr. Todd testified that a fistula occasioned by an incision or...

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    ...at 947.9 Boxberger v. Martin, 552 P.2d 370, 374 (Okla.1976); Martin v. Stratton, 515 P.2d 1366, 1371 (Okla.1973).10 Robertson v. LaCroix, 534 P.2d 17, 21 (Okla.App.1975). See also Downs v. Longfellow Corporation, 351 P.2d 999, 1004 (Okla.1960) ("It is fundamental that a plaintiff, in order ......
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