Whalley v. Sakura

• Decision Date: 29 October 1986
• Docket Number: No. 83-1292,83-1292
• Citation: 804 F.2d 580
• Parties: Claudia LaJean WHALLEY, Plaintiff-Appellant, v. Chester Y. SAKURA, Jr., M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 580

804 F.2d 580

Claudia LaJean WHALLEY, Plaintiff-Appellant, v. Chester Y. SAKURA, Jr., M.D., Defendant-Appellee.

No. 83-1292.

United States Court of Appeals Tenth Circuit.

Oct. 29, 1986.

Kathleen Price Watson of Branch, Eaton & Keenan, P.A., Albuquerque, N.M. (Turner W. Branch was also on the brief), for plaintiff-appellant.

Alice Tomlinson-Lorenz of Miller, Stratvert, Torgerson & Brandt, P.A., Albuquerque, N.M. (Marilyn Mason-Plunkett was also on the brief), for defendant-appellee.

Before HOLLOWAY, Chief Judge, and DOYLE ^* and McKAY, Circuit Judges.

HOLLOWAY, Chief Judge.

In this diversity action, plaintiff-appellant Whalley allegedly suffered psychological injury and mental anguish as a result of defendant Dr. Sakura's negligent care following breast reconstruction surgery in 1981. ¹ The trial court directed a verdict in favor of the defendant on this claim, relying on the absence of any negligently-inflicted physical injuries. In light of intervening decisions of the Supreme Court of New Mexico, we conclude that we must reverse.

I.

In 1974 plaintiff was diagnosed as suffering from cancer of the right breast. Later that year, she underwent a radical mastectomy of that breast and an eight-week program of radiation therapy. Two years later she had the breast reconstructed. In February 1981 plaintiff consulted the defendant at a surgical clinic in Albuquerque, New Mexico. He advised a second reconstruction of her right breast and, eventually, a subcutaneous mastectomy of her left breast. Plaintiff consented and the defendant performed a latissimus dorsi myocutaneous flap reconstruction of her right breast on February 23, 1981.

Shortly after the surgery plaintiff developed a skin rash on her thighs and torso. Approximately three days later, she noticed that the surgical wound was turning black and developing blisters. Plaintiff allegedly tried, without success, to discuss the post-operative problems with the defendant.

The defendant discharged plaintiff from the hospital on February 28. Later that evening she began experiencing severe pains and the defendant readmitted her to the hospital. During the next two weeks portions of the subcutaneous flap became infected because of restricted circulation into the surgical area. The incision gradually opened, causing some of her flesh to fall out. Plaintiff claims that defendant remained unwilling to discuss the post-operative problems with her. Defendant disputes this assertion, claiming he did counsel plaintiff. ² On March 16 she consulted another plastic surgeon, Dr. Burton Weber who subsequently removed the implant and performed a third reconstruction of the right breast.

Plaintiff testified that the defendant's refusal to communicate left her depressed and nervous. She consulted several clinical psychologists in Jacksonville, Florida, and Albuquerque, New Mexico. One of the Albuquerque psychologists, Dr. Samuel Roll, met with plaintiff approximately eight times between May 1981 and December 1982 and administered a number of psychological tests. He testified that plaintiff was suffering from intense depression and that her psychological condition was a result of the "operation with Dr. Sakura and its aftermath." V R. 595.

At trial, plaintiff withdrew her claim that defendant abandoned her and discontinued medical attention for her. The trial judge sustained a motion for a directed verdict for defendant at the close of plaintiff's evidence on her claim of negligent infliction of psychological injury, removing that claim from the jury's consideration. The judge submitted the claim of lack of informed consent to the jury, which found for the defendant on that claim. This appeal concerns only the claim of psychological injury by defendant's negligence, and claimed error by the trial judge in directing a verdict for the defendant on that claim.

II.

Plaintiff argues that the trial court erred in directing a verdict for the defendant on her claim for negligent infliction of psychological injury with emotional distress. More specifically, plaintiff contends that the court erred in rejecting her claim on the basis that one of her medical witnesses, Dr. Weber, had conceded that the failure of care by the defendant had nothing to do with any of the plaintiff's physical problems and did not have any effect on the final outcome of the reconstruction surgery. V R. 619-620. Plaintiff contends that she had established a case, including the requisite proximate causal link, of negligent post-operative care resulting in psychological injury. Appellant's Brief-in-Chief 8.

Defendant first responds that the plaintiff did not advise the trial court that she was asserting a "new theory of liability," negligent infliction of emotional distress, in place of the claim of malpractice on which the case had proceeded, and that plaintiff did not ask the trial court to determine if New Mexico would allow recovery on a theory of negligent infliction of emotional distress, which was allegedly argued for the first time on appeal. Appellee's Answer Brief 10.

From our consideration of the complaint, the pretrial order and the trial record, we cannot agree with the defendant that the claim of negligent infliction of psychological injury with emotional distress was not presented to the trial court. Plaintiff's averment in her complaint was general and after alleging negligence in the effort for reconstruction of the right breast, it asserted the general allegation that "[o]nce it became evident that there was to be loss of part of the flap, the post-operative care of Dr. Sakura fell below the standard of other physicians in the vicinity of Albuquerque, New Mexico." I R. 2. The pretrial order likewise stated the claims of the plaintiff in general terms, including a claim that "[f]ollowing surgery, once it became evident that there was going to be a loss of part of the subcutaneous flap, Defendant's post-operative care of plaintiff fell below the standard of other physicians in the vicinity of Albuquerque, New Mexico, and he abandoned plaintiff." I R. 15. We note also that in the listing of exhibits of the plaintiff, there was a designation of the records and bills from the Mental Health Resource Center, Jacksonville, Florida, I R. 17, and a designation of other medical records including treatment by the staff at the Mental Health Resource Center at Jacksonville. Id. at 19.

We have referred to the general nature of the allegations of negligence in post-operative care. In viewing those averments, we must liberally construe the pretrial order to include "all the legal and factual theories inherent in the issues defined therein." Stone v. First Wyoming Bank, N.A., 635 F.2d 332, 347 (10th Cir.1980) (quoting Century Refining Co. v. Hall, 316 F.2d 15, 20 (10th Cir.1963)); see also Trujillo v. Uniroyal Corp., 608 F.2d 815, 818 (10th Cir.1979) (quoting Rodriguez v. Ripley Industries, Inc., 507 F.2d 782, 787 (1st Cir.1974)) (pretrial order liberally construed "to cover any of the legal or factual theories that might be embraced by [its] language").

Moreover, the testimony of plaintiff's experts, Dr. Roll and Dr. Weber, dealt extensively with defendant's lack of proper post-operative communication and counselling and the resulting psychological injury. Defendant argues that this was related to plaintiff's other claims of a lack of informed consent and abandonment of defendant in the post-operative care stage. While this may be true, it is also reasonable to view the proof as covering a claim of negligent infliction of psychological injury on plaintiff, with physical manifestations detailed by Dr. Roll. During plaintiff's case in chief, Dr. Roll testified at length concerning the psychological impact on plaintiff of the failure of defendant to communicate with her when the post-operative problems became evident. Dr. Roll detailed further the physical manifestations of the plaintiff's psychological injury including loss of energy, fatigue, psychomotor retardation or slowing down of her mobility, low energy level, and sleep disturbance. V R. 561-64; 587-88. From all the psychological testing, records and interviews with plaintiff, Dr. Roll testified that plaintiff was suffering a major depression interfering with her emotional ability, intellectual productivity and interpersonal capacity, and he concluded that this was predicted over a long period which, without treatment, would become worse, with the potentiality of suicide. V R. 594. He concluded that with a high degree of scientific certainty, this psychological condition was causally related to the operation by the defendant and its aftermath. V R. 595. Further, Dr. Weber testified in connection with the post-operative care and the communications by the defendant, that in his opinion the standards of good medical care were not met. V R. 541-45.

From our consideration of the proof introduced by the plaintiff, we are convinced that it did embrace the claim of negligent post-operative care producing alleged psychological injury with physical manifestations. Moreover, in the argument of plaintiff's counsel to the trial court in opposition to the motion for a directed verdict, counsel dealt directly with the testimony of Dr. Weber and the defendant's argument that the defendant's post-operative care did not affect the outcome of the case. VI R. 627-629. In response, plaintiff's counsel argued that he thought there was testimony from plaintiff and from Dr. Roll that the post-operative care had "caused her some psychological damage, and that is an element of damages that we are seeking recovery for." Her counsel further pointed out that the doctor had "said there was a deviation in his opinion from the acceptable standard on post-operative care ..." VI R. at 629. Thus both the evidence and the argument of counsel based on it did include a claim by plaintiff of negligent post-operative care, producing psychological injury and mental...