Taylor v. Hill

• Decision Date: 26 August 1983
• Citation: 464 A.2d 938
• Parties: Carol TAYLOR and Russell Taylor v. Allison HILL.
• Court: Maine Supreme Court

Page 938

464 A.2d 938

Carol TAYLOR and Russell Taylor v. Allison HILL.

Supreme Judicial Court of Maine.

Argued May 9, 1983.

Decided Aug. 26, 1983.

Paine & Lynch by Martha J. Harris (orally), Bangor, for plaintiff.

Gross, Minsky, Mogul & Singal, P.A. by George Z. Singal (orally), Carl F. Rella, Bangor, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, ROBERTS, VIOLETTE and WATHEN, JJ.

GODFREY, Justice.

In February 1979, plaintiffs Carol and Russell Taylor filed a complaint in Superior Court (Penobscot County) against Dr. Allison Hill for alleged malpractice in removing Carol Taylor's right ovary. The complaint alleged that the removal left her without any ovarian tissue so that she was unable to produce estrogen. Mrs. Taylor sought damages for physical and mental suffering alleged to be caused by her inability to produce estrogen naturally and for her resultant continuing medical expenses. Mr. Taylor sought damages for loss of consortium. Sometime before the trial ended, the presiding justice granted defendant's motion to dismiss Russell Taylor's loss of consortium claim for failure to file a notice of malpractice claim pursuant to 24 M.R.S.A. § 2903 (Supp.1980). Carol Taylor's negligence claim was tried and submitted to the jury on the following two special interrogatories: (1) "Was the Defendant, Allison K. Hill, M.D. negligent in his medical care and treatment of the Plaintiff, Carol A. Taylor?" and (2) "Was the negligence of Defendant Allison K. Hill, M.D. the proximate cause of any injury to Plaintiff, Carol A. Taylor?" The jury answered yes to the first question and no to the second. Judgment was thereupon entered for defendant.

On appeal, plaintiffs contend that the presiding justice erred by dismissing Russell Taylor's loss-of-consortium action and by excluding testimony from an expert medical witness for Carol Taylor on the issues of the standard of care applicable to defendant in the circumstances and defendant's breach of that standard. We affirm the dismissal of Russell Taylor's action for loss of consortium; we vacate the judgment for defendant in Carol Taylor's action.

The operative facts may be summarized as follows. In July of 1977, Mrs. Taylor had undergone a vaginal hysterectomy and salpingo-oophorectomy (VHSO) in the course of which her left ovary had been removed. Dr. Harris, the operating surgeon on that occasion, testified that when he performed the surgery he thought he removed the entire left ovary.

Less than a year later, on April 18, 1978, Mrs. Taylor was admitted to Eastern Maine Medical Center, complaining of abdominal pain. Defendant Dr. Hill examined her in the emergency room, made a tentative diagnosis of acute appendicitis, and operated on her that day. Doctors Brown and Chamberlain assisted with the surgery. During the appendectomy, Dr. Hill observed a growth on Mrs. Taylor's right ovary. With the concurrence of the other two doctors, he decided to remove the entire right ovary rather than attempt to do a biopsy or remove only the growth. All three doctors testified that, before removing the right ovary, they inspected the site of the left ovary and found a segment of the left ovary remaining among scar tissue. The growth on the right ovary turned out to be benign.

Mrs. Taylor testified that she suffered hot flashes soon after the surgery. In May, 1978, she was examined by Dr. Burger, who prescribed premarin, an artificial estrogen replacement, for relief of her symptoms. She testified that she has since suffered hot flashes when Dr. Burger experimented with the dosage of premarin and when she stopped taking premarin for a period of two months. She also testified that since the surgery she has suffered from depression, nervousness, vaginal dryness and lack of interest in sex. Dr. Emmanuel Friedman, an expert witness for Mrs. Taylor, testified to the causal relationship between a lack of functioning ovarian tissue and hot flashes, lack of interest in sex, and vaginal dryness. He also testified that vaginal dryness can persist despite the taking of artificial estrogen.

I. The exclusion of Dr. Friedman's testimony on standard of care.

Carol Taylor offered Dr. Emmanuel Friedman as an expert medical witness to testify about the standard of care applicable to Dr. Hill in this case and his breach of that standard. The following testimony had been received prior to Dr. Friedman's taking the witness stand: Dr. Hill had testified that his specialty was general surgery, that he was a fellow of the American College of Surgeons (ACS), and that to belong to that national organization, a surgeon must have a "basic number of years of training" and submit reports on fifty major surgical cases. Dr. Parker Harris, a board-certified specialist in obstetrics and gynecology, had testified that a general surgeon would be held to the same standard of care as a gynecologist when performing gynecological surgery at Eastern Maine Medical Center.

An extensive voir dire of Dr. Friedman revealed the following facts concerning his qualifications to testify about the standard of care applicable to Dr. Hill. Dr. Friedman was a general surgeon and a board-certified obstetrician-gynecologist. At the time of trial, he was a professor of obstetrics and gynecology at the Harvard Medical School and chief of obstetrics at the Beth Israel Hospital in Boston, Massachusetts. During the course of his thirty-year career, he has performed at least twenty operations a year involving general surgical procedures. He testified in the voir dire that general surgery is a specialty and that a general surgeon is held to the same standard as a gynecologist when performing gynecological surgery. He made clear that he would be testifying to the standards of care applicable to a general surgeon and that he applied that standard of care when he reviewed the actions of Dr. Hill.

Dr. Friedman was also a fellow of the American College of Surgeons, and he testified that he would be applying standards promulgated by the ACS to Dr. Hill in this case. He described the ACS as a national organization that sets standards to which its member surgeons are held and has as objectives the maintenance of those standards and the continuing education of its members. The standards are promulgated by publications, journals and teaching conventions. All fellows of the ACS receive basic information about standards of care. Furthermore, the ACS is affiliated with a joint commission on accreditation of hospitals which insures that the promulgated standards are carried out by the hospitals throughout the nation that are accredited by that joint commission. Finally, Dr. Friedman testified that a fellow of the ACS practicing surgery in Bangor, Maine, is held to the same standard of care as one practicing in Boston, Massachusetts.

After completion of the voir dire, the trial justice refused to admit testimony of Dr. Friedman about the standard of care applicable to Dr. Hill. A review of the record reveals three possible reasons the trial justice may have had for that ruling. Each will be set forth and discussed below. None of the grounds is tenable, and we must conclude that the trial justice erroneously excluded that testimony.

The presiding justice based his ruling, at least in part, on a finding that Dr. Friedman neither was a general surgeon nor had practiced general surgery. Those findings are clearly erroneous. Dr. Friedman testified that he is both an obstetrician-gynecologist and a general surgeon and that he had performed at least twenty surgical operations a year involving general surgery during the course of his thirty-year career. In the face of that uncontroverted testimony, the trial justice's ruling cannot be upheld on that ground.

As a second ground, the trial justice apparently ruled that Dr. Friedman could not testify because he was not convinced that Dr. Friedman, being an obstetrician-gynecologist, could testify to the standard of care applicable to a general surgeon. The trial justice seemed concerned that Dr. Friedman would apply gynecological standards. That concern was unwarranted for two reasons. First, Dr. Friedman testified that he would be describing the standards of care applicable to a general surgeon. Second, a member of one specialty may testify to the standard of care applicable to another specialty as long as the witness is familiar with the standard of care and qualified to testify about it. Fitzmaurice v. Flynn, 167 Conn. 609, 618-19, 356 A.2d 887, 892 (1975); Radman v. Harold, 279 Md. 167, 171-72, 367 A.2d 472, 477 (1977); Siirila v. Barrios, 398 Mich. 576, 248 N.W.2d 171 (1976). Dr. Friedman testified that he knew the standard of care applicable to a general surgeon, and the record establishes that he was qualified to testify about that standard.

Moreover, "the diagnosis and treatment of some medical problems may be of concern to doctors of different specialties, and in an area of concurrent expertise, a common standard of care may be shared." Baoust v. Kraut, 377 A.2d 4, 7 (Del.1973). That is the situation presented by this record. Not only did Dr. Friedman testify generally that a general surgeon is held to the same standard of care as a gynecologist when performing a gynecological surgery, but Dr. Harris testified that that was so at Eastern Maine Medical Center under the standards of the Center. Since the record established that gynecologists and general surgeons share a common standard of care with respect to the surgical procedure involved here, the trial justice erred by not allowing Dr. Friedman to testify on the ground that he was in a different branch of medicine than Dr. Hill. See Baoust, 377 A.2d at 7; Katsetos v. Nolan, 170 Conn. 637, 646-47, 368 A.2d 172, 178 (1976); Chenoweth v. Kemp, 396 So.2d 1122, 1125 (Fla.1981); Creasey v. Hogan, 292 Or. 154, 164-67, 637 P.2d 114, 121-22 (1981); cf. Fridena v. Evans, 127 Ariz. 516, 520, 622 P.2d 463, 467 (1981) (orthopedic surgeon...