Seybold v. Neu, 45505-2-I.

CourtCourt of Appeals of Washington
Citation19 P.3d 1068,105 Wn. App. 666,105 Wash. App. 666
Decision Date20 February 2001
Docket NumberNo. 45505-2-I.,45505-2-I.
PartiesCharles A. SEYBOLD and Andrea L. Seybold, individually and as husband and wife, Appellants, v. Bruce NEU, M.D., d/b/a Bruce Neu, M.D., Inc., P.S., and as Plastic Surgery Northwest; and Daniel L. Flugstad, M.D., Respondents.

Christopher Lee Otorowski, Carol Nofziger Johnston, Albert Morrow, Morrow & Myers, Bainbridge Island, for Appellants.

Timothy David Blue, Mary H. Spillane, William, Kastner & Gibbs, Seattle, for Respondents.


To decide this appeal we must determine whether a reconstructive (plastic) surgeon practicing at the Scripps Clinic in California is competent to testify that (1) an orthopedic surgeon specializing in musculoskeletal oncology in Seattle over-treated a soft tissue malignancy that had not invaded bone by removing approximately a third of the circumference of Charles Seybold's right lower tibia bone during the surgical removal of the tumor; (2) the standard of care applicable to orthopedic surgeons specializing in musculoskeletal oncology and treating soft-tissue malignancies in Seattle in June of 1992 required knowledge of the existence of and consultation with experts in a technique of progressive pathologic examination of tissue before its removal to determine whether tumor invasion had occurred—to the end that healthy tissue would not be removed unnecessarily; (3) the unnecessary removal of healthy bone resulted in a greater than 51% probability that Mr. Seybold would ultimately suffer a pathological fracture of the weakened, weight-bearing tibia; (4) the use of cadaver bone as opposed to live bone from Mr. Seybold's own body to graft the excised bone tissue, followed by radiation treatment, greatly increased the chances that Mr. Seybold would suffer a pathologic fracture of his lower right tibia, which he ultimately did; and (5) but for the inappropriate treatment, Mr. Seybold more likely than not would never have been placed in the position, four years later, of deciding on amputation of his right leg below the knee. Because the record reflects that both orthopedic surgeons and plastic surgeons routinely treat cutaneous malignancies growing next to bone that have not invaded bone, the relevant specialty here is not orthopedic oncology; it is the surgical treatment of cutaneous malignancies. Thus, the trial court erred in striking the deposition of the California plastic surgeon on the basis of incompetency in the relevant medical specialty, and in dismissing the Seybolds' complaint on summary judgment for lack of expert testimony to support the claims. We reverse and remand for trial or such other proceedings as shall be consistent with this opinion.


In April 1992, Charles Seybold went to Dr. Bruce Neu, a plastic surgeon, for an examination of a lump on his lower right tibia, commonly known as the shinbone. Dr. Neu performed an excisional biopsy of the lump and pathology reports subsequently revealed that it was a malignant soft tissue sarcoma, specifically a myxoid malignant fibrous histiocytoma, located on the distal third of the tibia. This is a rare and life-threatening condition. Dr. Neu referred Mr. Seybold to Dr. Daniel Flugstad, an orthopedic surgeon specializing in musculoskeletal oncology. Dr. Flugstad practices in Seattle.

Dr. Flugstad evaluated Mr. Seybold by physical examination and magnetic resonance imaging (MRI). The MRI showed no margin between the tumor and the periosteum, which is the thin layer of tissue that covers the tibia bone. Dr. Flugstad recommended limb-sparing surgery followed by radiation therapy. He concluded that a wide local excision of the tumor, including resection of a portion of the tibia as a deep margin, and a wide excision of the skin, was needed to eradicate the tumor. This was to be followed by an allographic transplant to repair the resulting bone loss and a skin flap to repair the resulting skin loss.2

Dr. Flugstad subsequently testified in a deposition that he discussed various risks associated with the surgery with Mr. Seybold, including the risk of local recurrence of the tumor, the risk of neurovascular injury, the risk of pathologic fracture of the tibia, the risk of non-union of the bone in the event of fracture, and the risk of eventual below-knee amputation of the right leg. But he did not discuss these risks in terms of probabilities or percentages because Mr. Seybold did not ask him those questions. Dr. Flugstad further testified that if Mr. Seybold had "cornered" him he would have stated that the risk of either a pathological fracture or a non-union of the bone was "somewhere less than 50 percent, but I can't narrow myself down anymore than that." Clerk's Papers at 46. If he had been asked about the risk of eventual amputation, Dr. Flugstad testified that he would have responded that the risk was about 10%. There was no discussion of the risks of taking bone versus not taking bone when the cancer is cutaneous only, and no discussion of any alternatives to taking bone to ensure eradication of the tumor.

The surgery proceeded as planned on June 17, 1992. Dr. Flugstad cut out about a third of the circumference of Mr. Seybold's lower right tibia, creating a deep, bony margin. Fresh frozen cadaver bone was fashioned to fit the area from which bone had been removed, and then was screwed into place. A compression plate was also bent and twisted into an appropriate shape and screwed into place. A plastic surgeon then took over and performed the skin grafting to cover the wound. Radiation treatment followed.

Two years later, Mr. Seybold suffered a pathological fracture of his right tibia, which subsequently led to a painful non-union that failed to heal. In June 1996, after considering limb-sparing options that would take considerable time to heal and were not guaranteed to produce a functional leg, Mr. Seybold elected to undergo a below-knee amputation. Dr. Flugstad performed the amputation on June 26, 1996. Mr. Seybold was then 34 years of age.

The Seybolds subsequently brought this lawsuit, alleging medical negligence and failure to obtain informed consent to the initial treatment, proximately causing the amputation of Mr. Seybold's lower right leg and physical, economic and marital consortium damages. In August 1999, Dr. Flugstad moved for summary judgment dismissing the Seybolds' claims on the basis that they lacked the requisite testimony of a qualified medical expert to support the claims.

The Seybolds responded to the motion by presenting the deposition testimony of Dr. Gerald L. Schneider, a reconstructive (plastic) surgeon from the Scripps Clinic at La Jolla, California. Dr. Schneider testified that as a board certified plastic surgeon he is an expert in the surgical removal of cutaneous malignancies such as that which Mr. Seybold had. He was recruited by the Scripps Clinic to do cutaneous cancer reconstruction, although he also performs cosmetic surgeries for aesthetic reasons. His previous experience includes a large amount of trauma surgery, with respect to which missing bones or bones that do not heal are frequently referred to plastic surgeons for repair. Accordingly, Dr. Schneider testified that he is also an expert in bone grafting. Although he is not an expert in orthopedic surgery as compared to reconstructive surgery, he has assisted orthopedic surgeons during surgery, has been trained in bone fixation, and could fill in for an orthopedic surgeon for that purpose, if no orthopedic surgeon were available. He has testified in court as an expert witness in a case involving lower limb reconstruction in which the patient died. He has presented lectures to other physicians on various subjects, including cutaneous malignancies, and has twice published written materials on reconstructive surgery, including one article written in conjunction with an expert on Mohs surgery, a technique that Dr. Schneider opined should have been utilized in Mr. Seybold's case.

Dr. Schneider testified that the Mohs technique was developed specifically for the removal of cutaneous malignancies such as the one Mr. Seybold had, by Dr. Fred Mohs from Wisconsin. Although he is not trained in the Mohs technique, Dr. Schneider has worked closely with a colleague at the Scripps Clinic, Dr. Hugh Greenway, who is trained in that technique and Dr. Schneider consulted with Dr. Greenway during his evaluation of Mr. Seybold's case. A surgeon applying the Mohs technique works closely with a pathologist in mapping the area of the malignancy. Progressive amounts of tissue are removed and examined by the pathologist overnight, so that excision of a tumor of this type can take two, three, four, five or even eight days—the goal being to remove all the malignancy but not to remove healthy tissue. The technique does not increase the risk of spread of the cancer and although there are inherent risks in repeated surgeries, these are manageable and a better alternative than removing healthy tissue. The excisions are done on an outpatient basis and the patient goes home overnight, returning the next day, and on as many successive days as necessary, until the pathology reports show that the malignancy has been entirely removed. Then, reconstructive surgery is commenced. Thus, if the Mohs technique had been utilized in this case, no bone would have been removed from Mr. Seybold's tibia unless and until it was shown that the periosteum—the thin layer of tissue that covers the cortical bone—had been invaded by the cancer, and that there was a probability that bone was involved. In Mr. Seybold's case, it is undisputed that the periosteum had not been invaded; neither had the bone. Therefore, if the Mohs technique had been utilized healthy bone would never have been removed. Dr. Schneider testified that he was not an expert in the submicroscopic involvement of cancer and bone,...

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