Silberstein v. Berwald

• Decision Date: 09 November 1970
• Docket Number: No. 2,No. 54095,54095,2
• Parties: Jacob SILBERSTEIN, Appellant, v. Irvin I. BERWALD, M.D., Respondent
• Court: Missouri Supreme Court

Page 707

460 S.W.2d 707

Jacob SILBERSTEIN, Appellant, v. Irvin I. BERWALD, M.D., Respondent.

No. 54095.

Supreme Court of Missouri, Division No. 2.

Nov. 9, 1970.

Motion for Rehearing or for Transfer to Court En Banc Denied

Dec. 14, 1970.

James B. Herd and Deeba, DeStefano, Sauter & Herd, St. Louis, for appellant.

Norris H. Allen, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, for respondent.

ROBERT C. J. HOESTER, Special Judge.

Plaintiff sued for medical malpractice for failure to diagnose an inspissated barium bolus and failure to diagnose the existence of a tumor, cancer of the rectal-sigmoid and for failure to diagnose the perforation of the deceased's bowel, lower intestine, and colon. At the conclusion of plaintiff's evidence, the Court sustained a directed verdict from which plaintiff appeals.

Plaintiff's motion for new trial contained several allegations of error, including evidentiary questions. Plaintiff claims he made a submissible case in regard to the only point he briefed and argued, which was

'That the defendant failed to discover and treat a massive impaction of barium in the colon of the deceased and that defendant's failure contributed to cause her death.'

The Court will review only that point preserved and briefed by plaintiff.

We must review the evidence giving plaintiff the benefit of every inference and consider it in a light most favorable to the plaintiff. Steele v. Woods, Mo., 327 S.W.2d 187, and Kap-Pel Fabrics, Inc. v. R. B. Jones & Sons, Inc., Mo.App., 402 S.W.2d 49. The facts most favorable to plaintiff are uncontroverted. Bessie Silberstein, a 67-year-old woman, weighed 245 pounds a year prior to her death, and was five feet tall. She was under the care of the defendant, Dr. Irvin I. Berwald, who was treating her for her obese condition and a pain in the abdomen. She entered Faith Hospital September 15, 1965 with complaints of severe pain in the abdomen, pain in the bowels, and constipation. She was given both upper and lower gastro-intestinal series which included the administration of substantial quantities of barium. An ulcer of the prepyloric segment of the stomach was diagnosed and treated. The treatment also consisted of several other ingestions, both orally and rectally, of barium for the purpose of x rays. On October 1, 1965, deceased's ulcer was found to be completely healed without residual deformity.

Within days of her admission and after the first barium, the evidence shows that she began passing rectally, white rocks. Several days after her release, the deceased pulled chunks of white hardened rock from her rectum, one of which was the size of a silver dollar. On October 15, 1965, the deceased returned to Dr. Berwald's office where he felt a mass after having palpated the abdomen of deceased. She was transferred to the care of a Dr. Samuel Soule who was a gynecologist. Three days after her consultation with Dr. Soule, she was seen by Dr. Murray Chinsky, an internist, and was admitted to Jewish Hospital on an emergency basis. The hospital records indicate that three large scybala of hardened barium were manually removed from her rectum. They were smaller than a lemon, about the size of a silver dollar.

Exploratory surgery was performed October 29, 1965, at which time a large 7 5 centimeter bolus of barium was found in the colon which had caused necrosis of the bowel wall and had perforated the bowel. The fecal bolus completely obstructed the lumen of the colon. The area was inflamed with peritonitis present. Twelve centimeters from the location of the barium bolus, the surgeon found cancer of the sigmoid colon. The cancer of the colon completely encircled the interior of the colon and obstructed the passage. The surgeon performed a colostomy, removed approximately ten inches of the colon, as well as the barium bolus, removed that area which was cancerous and that area which was perforated and necrotic where the barium bolus was located. The patient did not respond satisfactorily and a second operation was performed, at which time the surgeon discovered that the colostomy operation had failed, that the patient had gangrene, and he removed the gangrenous segment of the colon and performed another colostomy of the colon. Shortly after, on November 11, 1965, the patient died.

The death certificate listed the immediate cause of death as peritonitis due to bowel resection due to perforation of the bowel by fecalith due to cancer of the rectal sigmoid. A postmortem was performed in which the pathologist listed a total of fifteen primary causes of death. The final anatomical diagnosis (the pathologist's report) listed in numerical order the following findings:

1. Infiltrating adenocarcinoma;

2. Obstructing fecal barium bolus;

3. Gangrene of the colon;

4. Peritonitis;

and thereafter, the remaining eleven other findings. Dr. Murray Chinsky, when asked to comment on this anatomical diagnosis and pathology report, was asked the following question and made the following answer:

'Q. Now, doctor, under the word 'primary' in the final anatomical diagnosis report, why are they listed there in that fashion? What is the reason for that?

'A. Because the pathologist believes these are the major factors leading to her death.'

The only evidence that would remotely bear on the causal connection between the negligent act or omission is the answer given by Dr. Chinsky 'because the pathologist believes these are the major factors leading to her death.' Dr. Chinsky himself was not asked what the cause of death was. No other questions were asked of...