Watson v. Clutts

• Decision Date: 12 June 1964
• Docket Number: No. 602,602
• Citation: 136 S.E.2d 617,262 N.C. 153
• Parties: Katherine Todd WATSON v. George Robert CLUTTS.
• Court: North Carolina Supreme Court

Page 617

136 S.E.2d 617

262 N.C. 153

Katherine Todd WATSON v. George Robert CLUTTS.

No. 602

Supreme Court of North Carolina.

June 12, 1964

Harry J. O'Connor, Jr., Sapp & Sapp, by Armistead W. Sapp, Greensboro, for plaintiff appellant.

Jordan, Wright, Henson & Nichols, G. Marlin Evans, Hubert E. Seymour, Jr., by G. Marlin Evans, Greensboro, for defendant appellee.

HIGGINS, Justice.

The plaintiff alleged that on September 13, 1960, she became the patient of the defendant, a physician specializing in sugery, having been referred to him by her regular physician, Dr. Merritt. The defendant had the plaintiff admitted to the L. Richardson Memorial Hospital in Greensboro 'for examination and probable surgery. Defendant advised the plaintiff that additional studies would be made at the hospital to determine whether surgery was necessary.'

The complaint, among other allegations, contained the following:

'VII. While in defendant's office on September 13, 1960, the defendant advised plaintiff that she would have to remain in the hospital approximately a week prior to surgery as this was a serious operation; that the operation was not done without risk, that it was a bigger operation than one would say of an appendectomy or some lesser procedure. No further explanation or description of the operation nor of its possible results was made to plaintiff.

'When plaintiff entered L. Richardson Memorial Hospital and before any tests or examinations were made she was presented and signed a form which contained a written consent for defendant to perform an operation on her.

'On September 26, 1960 at L. Richardson Memorial Hospital the defendant operated on the plaintiff's throat for the purpose of performing a subtotal thyroidectomy. * * *

'During the operation defendant carelessly and negligently severed both recurrent laryngeal nerves which resulted in paralysis of plaintiff's vocal cords on both sides of her throat.'

Additional allegations charged that the defendant negligently failed (1) to ascertain that the thyroid gland was not malignant and should have been treated by medication rather than by surgery; (2) to advise the plaintiff of the dangers involved in surgery; (3) to obtain an enlightened consent for the operation; (4) to follow proper surgical procedures in performing the operation, thereby severing the recurrent laryngeal nerves, causing permanent paralysis of the vocal cords; (5) to evaluate and remedy in so far as possible the injuries resulting from the operation.

The trial consumed almost one week. The record and the briefs are full and complete. The evidence consisted in the main of technical medical testimony and hospital records. In addition, the plaintiff, age 32, testified that in March or April, 1960, she consulted Dr. Fred Merritt, her family physician, because of her nervousness and loss of weight. Dr. Merritt prescribed 'thyroid, vitamins, and iodine.' This treatment continued, except for a short interval, until September when Dr. Merritt advised, 'That I was able to take the operation * * * and he sent me to Dr. Clutts. * * * After examination, Dr. Clutts said, 'There's thyroid there * * * that it should be removed * * *. He told me that I would have to remain in the hospital a week before the operation in order to run some tests. ' Dr. Merritt checked the charts on Thursday. 'Dr. Clutts * * * asked me was I ready for the operation. I told him, 'Yes.' He said * * * 'We will do it on Monday and after this operation you will feel like you are 16 again.' At no time while I was in the hospital did Dr. Clutts make any further statement to me as to the nature of the operation and its probable consequences.'

'I talked to Dr. Clutts about my condition the next morning (after the operation) and he said that he had run up on a little difficulty and said that my thyroid was wrapped around my vocal cord and that was the condition he found. * * * He said it was nothing to worry about, that it would be all right.'

The plaintiff further testified as to the hoarseness, difficulty in breathing and in talking, beginning immediately after the operation and continuing, although she returned to work for a few months. After consulting with Dr. Clutts a number of times, she returned to Dr. Merritt for treatment. Thereafter, she consulted with Dr. Shahane Taylor who sent her to the Memorial Hospital in Chapel Hill where she submitted to a tracheotomy

Dr. Groat, pathologist at the Richardson Memorial Hospital in Greensboro, made a microscopic examination of the thyroid tissues (removed by the operation). Diagnosis, 'Diffuse hyperplasia of the thyroid,' and 'Parathyroid gland * * * there was no malignancy in this tissue. * * * The gland I examined which came from the patient was diseased. * * * This is the type of thyroid gland that is removed surgically. This is generally done when a patient does come under the care of a physician who finds the condition of thyrotoxicosis, so this is a type of gland which is frequently removed in such case * * * a disease of the thyroid gland in which a gland oversecretes thyroxine or * * * If a patient has that type condition and nothing is done about it, no treatment is given, it may well be fatal sooner or later. * * *

'The vocal cords in relation to the thyroid gland and the larynx or voice box, are in the interior, the interior of the larynx, interior of the upper part of the larynx. Inside the upper part of the larynx. The vocal cords run horizontal from front to back. They consist in part of muscle, which is the interior of the vocal cords. They are covered over by some other types of tissue on the outside. Immediately covering the vocal cords, there is a type of tissue called the connective tissue. Immediately over that, there is a type of tissue lying on the surface of the vocal cords called epithelium. The vocal cords which run from front to back of the throat inside the upper part of the voice box or larynx, open and close. When you breathe in, when you inhale, the cords are open. When you speak, the vocal cords open and close, or go through the motions of what we doctors call abduction and adduction, very rapidly--vibrate. They vibrate at very high speed, and as you speak, that vibration is going on in your vocal cords all the time, but of course, you are not conscious of it. * * * While I was making this examination of this tissue, the results of which are covered in my report, Plaintiff's Exhibit 5, during either the gross or microscopic examination, I did not discover the presence of any nerve tissue.'

Plaintiff's witness, Dr. Lusk, testified: 'There are three basic treatments for an overactive thyroid gland. There is drug treatment. There is radioactive iodine treatment, and there is surgery. * * *

'Now, all three are used and must be used in different conditions. For instance, we generally prefer drug treatment for children and preparation for surgery. Radioactive iodine treatment is x-ray, and we generally reserve that for an older age person or the poor risk patient, or those with a diffuse goiter, who may have exophthalmos, prominence of the eyes.

'Surgery is generally reserved for the younger patient, who is too young to be exposed to the radiation of radioactive iodine or who has a large gland, and, of course, surgery is also reserved for those in which there is any question of cancer. If there is any question of cancer, surgery, of course, becomes the immediate form of treatment, so we have basically three forms of treatment for thyroid, and we have to use our judgment in regards to the patient, each individual, as to which is going to be the best treatment for this patient.'

The records from Memorial Hospital at Chapel Hill contain these entries: "Section of recurrent laryngeal nerve secondary to thyroidectomy bilateral,' and the words in item 3 on that page 'due to lesion of nerve.'

''Bilateral paralysis of the vocal cords,' these words in quote and enclosed in brackets, 'following surgical trauma to the recurrent laryngeal nerve on each side,' * * 'due to lesion of nerve."

Dr. Shahane Taylor of Greensboro, a specialist in otolaryngology, and a plaintiff's witness, testified:

'My examination revealed a complete abductor paralysis of the vocal cords. The abductors of the larynx are muscles which pull the vocal cords apart. When you take a deep breath, your abductor muscles pull your vocal cords apart so you can breathe. I found a complete paralysis of the abductor muscles on both sides. * * *

'I believe that had this girl had an abductor paralysis, she would have had to have had the tracheotomy before she did have it. I don't believe she could have gone that long, and that is my opinion, and the only thing that I know of--talking about fibrous tissue, the only thing that I know of that came on here to cause this delayed paralysis of this larynx is fibrosis from healing, which we all know is one of nature's processes of healing. Fibrosis, formation of scar tissue in healing, it's all the same....