Scarzella v. Saxon

• Decision Date: 02 October 1981
• Docket Number: No. 80-1096.,80-1096.
• Citation: 436 A.2d 358
• Parties: Guilio I. SCARZELLA, M.D., Appellant, v. Margaret G. SAXON, et al., Appellees.
• Court: D.C. Court of Appeals

436 A.2d 358

Guilio I. SCARZELLA, M.D., Appellant v. Margaret G. SAXON, et al., Appellees.

No. 80-1096.

District of Columbia Court of Appeals.

Argued July 2, 1981.

Decided October 2, 1981.

Joseph Montedonico, Rockville, Md., for appellant.

Douglas M. Bregman, Bethesda, Md., with whom Jacob A. Stein, Washington, D.C., was on the brief, for appellees.

Before NEWMAN, Chief Judge, and KELLY and FERREN, Associate Judges.

NEWMAN, Chief Judge:

This appeal arises from a breach of warranty action brought by Margaret Saxon for damages resulting from surgery performed by appellant, Dr. Guilio I. Scarzella. Ma. Saxon's husband, Harry Saxon, claimed a loss of consortium. Following a jury verdict for the Saxons, Dr. Scarzella moved for a judgment notwithstanding the verdict. Upon the trial court's denial of that motion, appellant filed this appeal, urging (1) the trial court erred in failing to instruct the jury that the existence of the alleged warranty must be proved by "clear and convincing" evidence and that the warranty itself must be supported by separate consideration,¹ and (2) that a claim for loss of consortium is inappropriate in a breach of warranty action, and thus the trial court erred in denying the motion for judgment notwithstanding the verdict as to that issue. Finding no error, we affirm.²

I

In January 1976, Ms. Saxon consulted her gynecologist, Dr. George Ulma, about a urethral-vaginal problem. Dr. Ulma diagnosed her problem as a diverticulum of the urethra — a cyst on the urethra — and referred Ms. Saxon to a urologist, Dr. Guilio I. Scarzella. Dr. Scarzella, who had treated Ms. Saxon in the past, confirmed Dr. Ulma's diagnosis and recommended that the diverticulum be removed by means of a surgical operation known as a diverticulectomy. Ms. Saxon and her husband consented to the operation, and it was performed at Providence Hospital in the District of Columbia on March 3, 1976.

After the operation, Ms. Saxon experienced certain complications that postponed her release from the hospital until March 16, 1976. A fistula or hole had developed in the wall of her urethra at the site of the diverticulectomy. Dr. Scarzella operated on Ms. Saxon again in June 1976, in an effort to close the fistula, but the attempt was largely unsuccessful. A third operation, performed by another doctor in November 1977, resulted in some improvement, but the fistula remains. As a result, Ms. Saxon suffers from an uncontrolled discharge of urine, and the fistula has affected her sexual relationship with her husband.

Ms. Saxon filed suit in February 1979, against Dr. Scarzella for the damage she suffered as a result of the complications from the diverticulectomy. Mr. Saxon joined the suit in a claim for loss of consortium. At trial the Saxons proceeded on only one theory of liability: breach of warranty. The Saxons alleged that they were induced to consent to the diverticulectomy by Dr. Scarzella's "express warranty" that the operation was safe and that there would be no complications. This warranty was alleged to have arisen out of the discussions between Dr. Scarzella and the Saxons in Dr. Scarzella's office prior to the performance of the diverticulectomy.

Ms. Saxon testified that she and her husband initially met with Dr. Scarzella on January 9, 1976, and that at that time he recommended that she undergo surgery. According to her testimony, Dr. Scarzella also stated that "the operation was a simple operation without complications . . . [that] [i]t only requires a short stay in the hospital, perhaps three or four days. . . . that the operation would just temporarily interrupt [her] work [and] temporarily interfere with [her] sex relationship with [her] husband . . . [and] that the operation is a safe one."

Mr. Saxon also testified that he received assurances from Dr. Scarzella as to the safety and nature of the recommended operation. According to Mr. Saxon, "I was concerned because my wife did not want to have an operation. She did not want to take the time off from her job because it was more or less a busy period . . . [Dr. Scarzella] said that it was a simple operation, would be a simple operation, no complications and that the time lost from work would be minimal and that the time that we would not be able to have sexual relations would be very short."

After the initial meeting with Dr. Scarzella, the Saxons returned home to decide whether Ms. Saxon should undergo surgery. Ms. Saxon testified that two weeks later they again consulted with Dr. Scarzella at which time he reiterated many of the statements that he had made at the first meeting. Following the second meeting, the Saxons consented to the operation.

At trial, Dr. Scarzella had no clear recollection of the precise details of the conversations with the Saxons. He testified that they "talked about . . . sexual difficulties [which might arise] after the operation . . . about the length in the hospital after the operation, how much she would be disabled from going to work, the seriousness of the operation . . . [that] it is a very simple operation as compared to removing a kidney or . . . a bladder." He testified, however, that he "never did guarantee the operation to Ms. Saxon or any operation to any of [his] patients at any time in [his] career. . . ." In addition, Ms. Saxon testified that she had signed a hospital consent form prior to her operation that expressly stated that "[n]o guarantee or assurance has been given by anyone as to the results that may be obtained" from the diverticulectomy.

At the conclusion of all the evidence, the trial court instructed the jury that a physician is not ordinarily a guarantor or warrantor of specific medical results, but that under the proper circumstances, the jury might find that a physician had gone further than usual and had contracted with his patient to guarantee such results. In this case, the alleged "guarantee" was that the urethral diverticulectomy would be free of complications. The jury returned a verdict in the amount of $55,000 in Ms. Saxon's favor and a verdict in the amount of $20,000 in Mr. Saxon's favor.

Appellant contends on appeal that a physician's alleged warranty of successful medical result is enforceable only where its existence is proven by clear and convincing evidence, and where consideration is furnished separate from and in addition to the consideration paid by the patient for the treatment or operation itself. He urges that the trial court erred in failing to instruct properly on these issues. In relevant part, the trial court's instructions were as follows:

mere wounds or statements by the physician or surgeon to quiet a fear or apprehension or an anxiety of a patient do not constitute a warranty. . . . In order to create a claim of warranty . . . the language or statements used or alleged to have been used by the surgeon must be clearly and unmistakeably a positive assurance by the surgeon or physician to produce or to avoid a particular result or results in treating the patient.

II

The most common theory under which a patient seeks recovery against a physician is that of negligence or medical malpractice. Annot., Recovery Against

Physician on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L. R.3d 1221, 1225 (1972). In such cases, a patient typically claims injury due to the physician's failure to exercise the degree of care and skill reasonably expected of other medical professionals with similar skills acting under similar circumstances. See, e. g., Morrison v. MacNamara, D.C.App., 407 A.2d 555, 560 (1979); Stottlemire v. Cawood, 213 F.Supp. 897, 898 (D.D.C.1963). A physician, moreover, ordinarily is not deemed to guarantee a specific medical result or to warrant that he or she will effect a cure. Id.; Coleman v. Garrison, 349 A.2d 8, 11 (Del.1975); Sard v. Hardy, 281 Md. 432, 451, 379 A.2d 1014, 1026 (1977). See generally 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 161 (1981); Annot., 43 A.L.R.3d at 1225. Nevertheless, many jurisdictions have recognized that in certain limited circumstances, a physician and his patient may enter into a contractual arrangement that both extends the physician's ordinary duty of care and holds the physician liable for the result of a particular medical treatment. See, e. g., Depenbrok v. Kaiser Foundation Health Plan, 79 Cal.App.3d 167, 171, 144 Cal.Rptr. 724, 726 (1978); Cirafici v. Goffen, 85 Ill.App.3d 1102, 1106-07, 41 Ill.Dec. 135, 138-39, 407 N.E.2d 633, 636-37 (1980); Sard v. Hardy, supra; Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973); Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929). See generally Note, Express Contracts to Cure: The Nature of Contractual Malpractice, 50 Ind. L.J. 361 (1975); Comment, Physicians and Surgeons — Sullivan v. O'Connor: A Liberal View of the Contractual Liability of Physicians and Surgeons, 54 N.C.L.Rev. 885 (1976); 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 161; Annot., 43 A.L. R.3d 1221, supra. In order for such a contract to be enforceable, courts typically have required that the warranty be expressly made by the physician and relied upon by the patient, and that the warranty be supported by consideration. See generally id. at 1226.

The District of Columbia has joined those jurisdictions which recognize and enforce warranties made by physicians. In Johnston v. Rodis, 102 U.S.App.D.C. 209, 251 F.2d 917 (1958), for example, a psychiatrist allegedly advised his patient "that the treatments [electric shock] as given by him were perfectly safe." Id. at 209, 251 F.2d at 918. Upon regaining consciousness, the patient discovered that she had sustained a fractured left arm during one of the therapy sessions. The court held that under such circumstances, the physician could be found to have warranted that the treatment would be safe:

Doubtless a physician's statement that he would cure a disease could seldom if ever be regarded as a warranty. But...