Todd v. Eitel Hospital

• Decision Date: 28 November 1975
• Docket Number: No. 45108,45108
• Citation: 237 N.W.2d 357,306 Minn. 254
• Parties: , 79 A.L.R.3d 907 Sally Lou TODD, Appellant, v. EITEL HOSPITAL, Respondent, Jose S. Sanchez, Respondent.
• Court: Minnesota Supreme Court

Page 357

237 N.W.2d 357

306 Minn. 254, 79 A.L.R.3d 907

Sally Lou TODD, Appellant, v. EITEL HOSPITAL, Respondent, Jose S. Sanchez, Respondent.

No. 45108.

Supreme Court of Minnesota.

Nov. 28, 1975.

Syllabus by the Court

1. In order to prove that a doctor is negligent, the burden is upon plaintiff to offer expert testimony (1) establishing the standard of care recognized by the medical community; and (2) showing that the defendant doctor in fact departed from that standard.

2. On this record, plaintiff has failed to establish the standards in the medical community for diagnosis of malignant melanoma by pathologists or that defendant pathologist departed from those standards.

Lynn S. Castner, George M. Stephenson, Minneapolis, for appellant.

Mahoney, Dougherty & Mahoney and Thomas E. Dougherty, Minneapolis, for Eitel Hospital.

Coulter, Nelson & Sullivan, and Mark Sullivan, Minneapolis, for Sanchez.

Heard before KELLY, TODD, and CHANAK, JJ., and considered and decided by the court en banc.

KELLY, Justice.

This is an appeal by plaintiff from an order of the Hennepin County District Court granting defendants' motion for dismissal at the close of plaintiff's case and an order denying her a new trial in this medical malpractice case. We affirm.

On May 18, 1967, Dr. Jose Sanchez was working as a vacation replacement for the regular pathologist at Eitel Hospital. As a clinical pathologist, he examined a piece of tissue which had been part of a tumor removed from plaintiff Sally Lou Todd's left forearm by Dr. Paul Stewart. Dr. Sanchez' diagnosis of the tissue sample he had had prepared for examination was compound nevus, a benign tumor.

In 1970, Ms. Todd contacted Dr. Henry Buchwald at the University of Minnesota Health Service about a recent discovery of lumps in her left axilla, or armpit. He took her history of the 1967 surgery and upon examination found no evidence of recurrence in the area of the left forearm. His physical examination of plaintiff led to a preliminary diagnosis of metastatic cancer in the left axilla, meaning a tumor which has spread from a different site of origin, either through the blood, muscles, or lymphatic system. Since plaintiff had had the tumor removed from her left arm in 1967 and since there was no evidence of cancer anywhere else in the body, he concluded that it had spread from the left arm to the shoulder area. To confirm this Dr. Paul Lober, University Hospitals' surgical pathologist, routinely examined the Eitel Hospital slide prepared in 1967 by Dr. Sanchez. Due to fading, a second slide was prepared from the original tissue sample, and both slides were sent to Dr. Lober. Both he and Dr. Theodore Grage, director of the University Tumor Clinic, were of the opinion that the tissue indicated malignant melanoma of the forearm. Thus, on January 16, 1970, Dr. Buchwald surgically removed cancerous tissue in the area, finding it to be metastatic malignant melanoma.

Plaintiff commenced this action for medical negligence on February 4, 1971, against The Nicollet Clinic, Dr. Stewart, Dr. Sanchez, and Eitel Hospital. ¹ She alleged that Dr. Sanchez was negligent in failing to correctly diagnose in 1967 that the forearm tumor was cancerous, which allowed it to spread to her upper left arm and chest, necessitating the 1970 surgery. At the close of plaintiff's case in chief, the trial court granted defendants' motions for dismissal because plaintiff had failed to prove by expert medical testimony that Dr. Sanchez had departed from the standard of care required of him in diagnosis. ²

We need not recite at length the long list of cases which again and again apply the well-reasoned rule setting out what a plaintiff must establish in a medical malpractice case. In order to prove that defendant doctor was negligent, the burden was upon plaintiff to offer expert testimony establishing (1) the standard of care recognized by the medical community, and (2) that defendant in fact departed from that standard. Swanson v. Chatterton, 281 Minn. 129, 160 N.W.2d 662 (1968); Silver v. Redleaf, 292 Minn. 463, 194 N.W.2d 271 (1972).

I. The problem arises in this case from the fact that two of plaintiff's medical witnesses were asked if they knew or were familiar with the standards for pathological diagnosis in 1967, but when they replied in the affirmative, they were never asked what those standards were. Defendants assert that this constituted a failure to establish the first essential element of a malpractice case, the requisite standard of care. Plaintiff asserts that from an examination of the record, a standard of care for pathological diagnosis in this case can be established from the combined testimony of all of plaintiff's medical witnesses. ³ We have carefully read the transcripts furnished us and disagree with this assertion. Briefly summarized, the alleged standard was a compilation of testimony in three areas:

(1) With regard to the standard operating procedure used by a pathologist in preparing, examining, and diagnosing a tissue sample slide, the testimony sets out a step-by-step process which includes, inter alia, a gross examination of the tissue sample, followed by embedding a portion of the tissue in paraffin for use in slides. A thin slice section is stained and placed under a microscope for examination. The pathologist makes his diagnosis and dictates a tissue report. The standard in this area was not questioned and there was no deviation from it.

(2) There was also testimony regarding the various recognized indicia of malignant melanoma for which a pathologist will be looking. By the use of enlarged slides, Drs. Grage and Lober testified that the signs of tissue melanoma are the appearance of enlarged, irregularly shaped cells, occasional cell division and migration through the epidermis, and a brownish pigment within the cells.

(3) Lastly, there was testimony from Dr. Lober that the various indicia just mentioned were taught to medical students as being the common indicators of malignant melanoma. However, the medical experts were not asked if these standards used at the University Hospitals by pathologists in diagnosing malignant melanoma are the same as those followed and relied on by the rest of the medical community. There were questions directed to Dr. Buchwald as to his familiarity with the accepted standards for surgeons in the community in 1967. The standards for surgeons were not tied in to standards for pathologists making a diagnoisis from an examination of tissue. It is a fair reading of the record that the standards in the community for pathologists in medical cases such as that of plaintiff were not established. ⁴ The medical experts were not questioned as to what the applicable standard of care for making a pathological diagnosis consisted of, nor do we think such standard was indirectly established from the totality of all the testimony.

II. The second essential element of any medical malpractice case--evidence that the particular doctor departed from the required degree of skill and care so as to constitute negligence--is totally missing in this case. ⁵ The only pertinent question asked of any of the doctors was what their diagnoses were of the 1967 slide. Although their opinions that it disclosed malignant melanoma differed from that of Dr. Sanchez, there was no questioning of the doctors as to whether or not there had been a deviation from the accepted manner of conducting such a pathological examination, or whether the examination was conducted in a negligent manner.

Plaintiff asserts that medical testimony was not necessary in this case to show Dr. Sanchez was negligent. She claims that the nature of the alleged negligent conduct was such that the inferences to be drawn from the facts could have been drawn by the jury, since the knowledge of this type of case is within the practical commonsense or common experience of all people. Christy v. Saliterman, 288 Minn. 144, 179 N.W.2d 288 (1970); Schulz v. Fiegal, 273 Minn. 470, 142 N.W.2d 84 (1966); 7A Dunnell, Dig. (3 ed.) § 3325.

This position finds no support in the law or in logic. The same is true of plaintiff's assertion that the doctrine of res ipsa loquitur could be applied to let the jury draw an inference of negligence. This is distinctly not the kind of case where the negligence 'speaks for itself' without expert medical opinion, such as where a surgeon leaves a sponge in the body or where there...