Swope v. Printz

• Decision Date: 14 June 1971
• Docket Number: No. 1,No. 54586,54586,1
• Citation: 468 S.W.2d 34
• Parties: Virginia SWOPE and Opie Swope, Plaintiffs-Appellees, v. Joseph H. PRINTZ, M.D., Defendant-Appellant
• Court: Missouri Supreme Court

Page 34

468 S.W.2d 34

Virginia SWOPE and Opie Swope, Plaintiffs-Appellees, v. Joseph H. PRINTZ, M.D., Defendant-Appellant.

No. 54586.

Supreme Court of Missouri, Division No. 1.

June 14, 1971.

Paul Scott Kelly, Jr., Phil M. Cartmell, Jr., Tucker, Murphy, Wilson, Lane & Kelly, Kenneth I. Grissinger, Kansas City, for plaintiffs-appellees.

William H. Woodson, Jerome T. Wolf, Spencer, Fane, Britt & Browne, Kansas City, for defendant-appellant.

HOUSER, Commissioner.

Virginia Swope and her husband Opie recovered judgments of $32,000 and $6,000 respectively, against Joseph H. Printz, M.D., a surgeon, for malpractice and loss of consortium. On appeal defendant seeks reversal of the judgments, claiming that the action is barred by limitations, and that the evidence of negligence and causation is insufficient. Alternatively, defendant asks for a new trial for procedural errors.

Defendant performed a thyroidectomy on Mrs. Swope at Menorah Hospital in Kansas City on October 7, 1963. This suit was filed on November 24, 1965. Plaintiffs charged that defendant 'was negligent and careless in the performance of the * * * operation, and during the course thereof did negligently and carelessly sever, damage and injure the nerves in the plaintiff Virginia Swope's throat, which energize and control the said plaintiff's vocal cords,' thereby permanently damaging and causing her vocal cords to be paralyzed. To avoid the 2-year statute of limitations, ¹ escape the effect of the enbanc decisions of Laughlin v. Forgrave, Mo.Sup., 432 S.W.2d 308, and YUST V. BARNETT, MO.SUP., 432 S.W.2D 316, ² and invoke the tolling effect of § 516.280, ³ plaintiffs alleged that they did not become aware of the results and consequences of defendant's negligence until several months had passed following the operation, although they had sought to obtain information concerning the results of the operation from defendant; that although he had full and complete knowledge defendant failed to truthfully advise plaintiffs of the results of the operation and the damage done and intentionally and fraudulently concealed his negligence from plaintiffs.

On this appeal defendant contends that the running of § 516.140 was not tolled by § 516.280 because there was (a) no sufficient evidence that in his dealings with plaintiffs following surgery defendant was guilty of any improper act or omission or fraudulent concealment of negligence with actual knowledge thereof, as required by Kauchick v. Williams, Mo.Sup. en banc, 435 S.W.2d 342; Smile v. Lawson, Mo.Sup. en banc, 435 S.W.2d 325, and Brown v. Grinstead, 212 Mo.App. 533, 252 S.W. 973, in malpractice actions, and (b) no expert medical testimony that defendant failed to measure up to professional standards in the community in his postoperative dealings with plaintiffs.

Plaintiffs counter with the contention that they had two years after the date the damage was discoverable by them (which they say was eight months after the operation, because of defendant's improper acts and misconduct in his dealings with them in the postoperative period) within which to file suit under § 516.100 ⁴; request review of the decisions in Laughlin v. Forgrave and Yust v. Barnett, supra, holding otherwise; ask that these decisions be overruled, and contend that the running of the 2-year statute was also tolled because of the operation of § 516.280. ³

We decline the invitation to reconsider the lately decided cases of Laughlin and Yust, supra, but in view of the fact that § 516.280 applies to limitations in malpractice cases, Kauchick v. Williams, supra, we will determine whether there was sufficient evidence to justify a finding that defendant knew there was malpractice and fraudulently concealed the fact from plaintiffs. Fraudulent concealment of this type would constitute an 'improper act' within the meaning of § 516.280 and would toll the running of the 2-year limitation period until the fraud was discovered or could have been discovered through reasonable diligence. Smile v. Lawson, supra.

On this appeal we view the evidence in the light most favorable to plaintiffs, who prevailed below, giving them the benefit of all favorable inferences and disregarding defendant's evidence except insofar as it may favor plaintiffs. Rauschelbach v. Benincasa, Mo.Sup., 372 S.W.2d 120, 125.

Plaintiffs claimed that the recurrent laryngeal nerves were injured in the operation. These nerves, one on each side of the neck, enervate the muscles attached to the vocal cords. The brain sends impulses through these nerves thereby causing the cords to open and close. They lie on the back side of and in close proximity to the thyroid gland, between windpipe and esophagus. One of the hazards of thyroid surgery is the possibility of injury to the laryngeal nerves. If they are severed the vocal cords instantly cease to move. They may be injured by direct traumatic injury to the nerve during the operation, or by edema (swelling of surrounding tisues or of the nerves themselves), or by the formation of scar tissue. Symptoms of injury to these nerves are respiratory difficulty (closing of the cords interferes with free passage of air into the lungs), hoarseness and a change in the pitch of the voice. Due to anatomical variations these nerves are not always found in exactly the same place; they vary from one human being to another in the route they take and in the way they branch. There are two recognized methods of dealing with them. One school of thought recommends they be visualized, exposed and put to one side to avoid injury to them. The other believes that in exposing the nerve it may be injured and therefore the surgeon should not attempt to isolate or expose it, or dissect in the area adjacent to the nerve, and that in removing the thyroid gland a residue of tissue is left in the area where the nerve is normally located. If the entire gland is removed it is a 'total' thyroidectomy; if a small rim of tissue is left it is a 'subtotal' thyroidectomy.

Defendant visualized the nerve on the right side and followed the first technique on that side. The other nerve not being apparent he followed the other technique. He left a rim of thyroid tissue posteriorly on both sides.

The operation concluded, the patient was taken to the recovery room at 12:10 p.m. At 12:30 respiration appeared slightly obstructed. An attempt to insert an airway failed. Drugs and oxygen were administered at 1 p.m. Approximately one hour after entering the recovery room the patient experienced a 'terrific inspiratory stridor' (harsh whistling sound like crowing) and had a great deal of difficulty in breathing. A nasal tracheal tube was inserted at 1:10, removed at 3:05, reinserted at 3:20. At 4:10 the patient was readmitted to the operating room and with a little more anaesthesia a tracheotomy (a surgical opening of the trachea) was performed. The preoperative and postoperative reports signed by defendant describe the contemplated and the performed operation as a total thyroidectomy. On October 8, the day after the operation, the hospital records, written by defendant, state: 'It is a question whether there is some edema here or whether there is actually injury to the nerves.' At the trial defendant testified that in making that statement he was considering the fact that that may have happened. The pathologist to whom the organ was delivered after the operation noted receipt of a total thyroid gland, a portion of the tissue of which was 'distorted by trauma.' The patient was discharged from the hospital on October 15, 1963. Defendant noted in the discharge summary that the operation performed was a subtotal thyroidectomy, and he testified that it was true that a total thyroidectomy was not indicated in Mrs. Swope's case.

After the operation on October 8, Mrs. Swope did not see defendant until November 9, when she went to his office, told him that she was having trouble breathing and that her voice was weak. He examined her throat and said that her breathing and voice would get better. On January 15, 1964 defendant examined Mrs. Swope. At the trial he admitted that on that examination he had objective evidence that there may have been damage to the left cord; that it did not move. In his answers to interrogatories defendant had denied finding damage to the left cord on that examination. Thereafter Mrs. Swope saw defendant once in February, 1964, and the last time on March 25, 1964. In February she complained to defendant of real trouble breathing, talking and getting around, and she suggested that she see another doctor. Defendant said 'No,' that she would be all right, and gave her some medicine. In March she was breathing better, but was weak and could not do heavy work, and her voice was weak, and a little worse. Asked by Mrs. Swope whether she could go to Colorado, defendant answered 'Yes, do anything you want to,' and told her that she would be all right; that she probably would not have a strong voice but it would be normal and that her breathing would be normal. On each of these visits Mrs. Swope told defendant about her hoarseness, and defendant told her that sometimes edema or swelling can produce such things and that time, in many instances, over a fairly long period of time, will reduce this hoarseness. Dr. McCanse testified that it is not likely that the respiratory difficulty and stridor Mrs. Swope experienced would be caused by edema of the nerves occurring in the first several hours after the operation. Dr. Lapp testified that he would expect edema to subside very shortly, in a matter of several weeks at the most, and that edema would not last anything like six months. Defendant conceded in his deposition that it was not impossible that he may have damaged the nerve of the left side by moving it aside during the operation. Dr. McCanse testified that trauma to the nerves could have produced the symptoms Mrs. Swope experienced right after the operation and up to the...