Tatro v. Lueken

• Decision Date: 14 July 1973
• Docket Number: No. 46869,46869
• Citation: 512 P.2d 529,212 Kan. 606
• Parties: Nonie M. TATRO, Appellant, v. Lueke B. LUEKEN, Appellee.
• Court: Kansas Supreme Court

Page 529

512 P.2d 529

212 Kan. 606

Nonie M. TATRO, Appellant, v. Lueke B. LUEKEN, Appellee.

No. 46869.

Supreme Court of Kansas.

July 14, 1973.

Rehearing Denied Sept. 10, 1973.

Syllabus by the Court

1. The doctrine of res ipsa loquitur applies in a medical malpractice action only where a layman is able to say as a matter of common knowledge and observation, or from the evidence can draw an inference, that consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.

2. In a malpractice action based upon the occurrence of a vesicovaginal fistula following an abdominal hysterectomy it is held that such operation is so complicated as to lie beyond the realm of common knowledge and experience of laymen as to whether such result would not ordinarily occur in the absence of negligence.

3. In the absence of an emergency a physician or surgeon has a legal obligation to make a disclosure of the risks and dangers incident to a proposed medical or surgical procedure in order that his patient may make an informed consent thereto, but the duty of the physician is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances.

4. What is a reasonable disclosure upon which an informed consent may rest depends upon the facts and circumstances of each case.

5. Ordinarily, trial errors in which a party acquiesces or encourages a trial court to make cannot be raised on appeal.

6. Upon appeal in considering the propriety of a jury verdict the evidence is to be viewed in a light most favorable to sustaining the verdict.

7. Appellate courts cannot nullify a jury's disbelief of evidence nor can they determine the persuasiveness of testimony which a jury may have believed.

8. In a medical malpractice action the record is examined and it is held: (1) The trial court did not err in refusing to submit the doctrine of res ipsa loquitur or in submitting the issue pertaining to informed consent and the instruction in connection therewith. (2) There is evidence to support the verdict.

Gerald L. Michaud of Michaud, Cranmer, Syrios & Post, Wichita, argued the cause, and Russell Cranmer, and Orval L. Fisher, Wichita, were with him on the brief for appellant.

Jerry G. Elliott of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Robert C. Foulston, Wichita, was with him on the brief for appellee.

KAUL, Justice:

In this action Nonie M. Tatro, plaintiff-appellant, has sued defendant-appellee, Lueke B. Lueken, a medical doctor specializing in gynecology, for alleged malpractice. The case was tried to a jury and plaintiff has perfected this appeal from a judgment entered on a defendant's verdict.

On appeal plaintiff claims the trial court erred in not submitting the doctrine of res ipsa loquitur to the jury and in submitting the issue of informed consent when, as plaintiff asserts, the evidence showed as a matter of law that plaintiff's informed consent had not been obtained. Plaintiff further contends there was no substantial evidence to support the jury's verdict for the defendant.

The evidence discloses that in 1966 plaintiff suffered excessive bleeding during her menstrual periods. She was first examined by Dr. Lueken, the defendant, in February 1966. He recommended a D & C (dilation and curettage) which was performed in August 1966. Plaintiff's problems were not resolved and she returned to defendant in October 1966. After a further examination defendant advised plaintiff that the trouble was caused either by a fibroid tumor or a narrowing of the womb. Following another pelvic examination in November 1968 defendant advised plaintiff that he had located a fibroid tumor and that plaintiff needed an abdominal hysterectomy. Because of the demands of her employment as a hairdresser during the holiday season, plaintiff asked that the operation be postponed until January of 1969, to which defendant agreed. On January 7, 1969, plaintiff was operated. She got out of bed for the first time three days later and was able to urinate normally, although she testified she had a pulling pain in the abdomen. Plaintiff was discharged from the hospital on January 14. During the night of January 21-22 plaintiff experienced a flood of urine pouring from the vagina and immediately contacted defendant who examined her the following day and treated her by the insertion of a catheter. Plaintiff's condition did not improve and she again saw Dr. Lueken on January 27. During this examination he observed urine entering the vagina.

Dr. John W. Warren, Jr., a urologist, associated with Dr. Lueken at the Wichita Clinic, was called in consultation. After an examination, Dr. Warren diagnosed plaintiff's condition as a vesicovaginal fistula. Dr. Warren tried various means in attempting to control the bladder leakage and saw plaintiff every two weeks until April when examinations were continued on a monthly basis. Dr. Warren testified that in the beginning there was an opening between the bladder and the vagina which he denominated a fistula; that it was approximately one and one-half centimeters in diameter and that it had reduced in size to approximately one-half centimeter by September. Dr. Warren testified that because of the reduction in size he had hopes of a spontaneous closing of the fistula; however, that did not come about. Surgery was performed by Dr. Warren on September 15, 1969, which corrected the condition.

Plaintiff filed this action on June 16, 1970. In her petition plaintiff bases her claim on two counts. She first alleged that because of the negligence of defendant in performing the hysterectomy she suffered permanent injury to her bladder and other parts of her body and had to undergo additional surgery. For her second claim plaintiff relied upon the doctrine of res ipsa loquitur alleging that the procedures, techniques, instrumentalities and equipment employed in the hysterectomy were under the complete and exclusive control of defendant; that plaintiff was without knowledge of the proper techniques and procedures used by defendant; that she relied wholly upon defendant to use proper and safe techniques; that the injuries which she suffered do not ordinarily occur in the absence of negligence; and that she was entitled to recover upon the doctrine of res ipsa loquitur.

Defendant answered denying the allegations of plaintiff on both counts and further alleging that plaintiff's second claim of res ipsa loquitur did not state facts sufficient to allow a recovery and should be dismissed.

A pretrial conference was had, and in the order drawn it was stated that plaintiff sustained a vesicovaginal fistula which was repaired by John W. Warren, Jr., M.D., in the St. Francis Hospital on September 16, 1969. The pretrial order further reflects that the issues to be determined were essentially: (1) Whether defendant was negligent as contended by plaintiff, and if so whether such negligence proximately caused plaintiff's injuries; (2) whether plaintiff was entitled to recover under the theory of res ipsa loquitur; (3) whether plaintiff was entitled to recover under the theory of lack of informed consent; and (4) the extent and nature of plaintiff's injuries and damages.

Plaintiff's evidence consisted of her own testimony and that of the defendant, Dr. Lueken, Dr. Warren, and Dr. R. M. Gouldner, who were called as witnesses on behalf of plaintiff. The three physicians were all very familiar with an abdominal hysterectomy. All testified candidly and forthrightly concerning the techniques and proper medical standards to be observed in such an operation. They agreed that a vesicovaginal fistula in connection with an hysterectomy could be caused by (1) cutting the bladder; (2) clamping the bladder and vagina together; (3) stitching or suturing the bladder and vagina together; (4) a cancer of the vagina or of the bladder and a complication of radium, cobalt, and x-rays; and (5) an abscess which can rupture both ways-into the vagina on the one side and into the bladder on the other. The three doctors frankly testified that any one of the first three would constitute a departure from good medical practice. It was undisputed that cancer, radium and cobalt treatment could be eliminated in plaintiff's case and also a cutting during the operation, as that would precipitate immediate leakage of urine into the vagina; whereas in plaintiff's case the flow of urine did not appear until fourteen days after the operation. Thus, the possible causes were narrowed to three: stitching, clamping or an abscess. The testimony was that time wise and also consistent with all other factors to be considered the fistula in plaintiff's case could have stemmed from any one of these three causes; and further that in plaintiff's case it was impossible to ascertain which of the three might have caused the fistula. Their testimony was consistent in that a clamping or stitching of the bladder is a departure from good medical practice; whereas an abscess is not a surgical injury, but a complication attendant to such surgery.

Dr. Lueken, the defendant, is a board certified gynecologist who has practiced his speciality in Wichita since 1963, and since then has performed from fifty to one hundred hysterectomies a year and has never had a vesicovaginal fistula in a noncancer case. He testified that plaintiff's operation was routine, there was no excessive bleeding or any other complication to increase the difficulty of the operation. He explained the operation in great detail and described how he separated the vagina from the bladder wall and protected the bladder by inserting surgical sponges. Dr. Lueken did not know what caused the fistula but he testified:

'. . . I was the one that sewed up the vagina during the course of the operation and I was the one that did all the stitching that was done in her abdomen. I was the one that did all the cutting...