Wilkinson v. Vesey

• Decision Date: 20 October 1972
• Docket Number: Nos. 1479-A,s. 1479-A
• Citation: 295 A.2d 676,110 R.I. 606
• Parties: , 69 A.L.R.3d 1202 Winifred WILKINSON v. John M. VESEY. Carol PEZZULLO, Administratrix of the Estate of Allen W. Wilkinson v. John M. M. VESEY. Winifred WILKINSON v. Russel R. HUNT. Carol PEZZULLO, Administratrix of the Estate of Allen W. Wilkinson v. Russel R. HUNT. ppeal to 1482-Appeal.
• Court: Rhode Island Supreme Court

Page 676

295 A.2d 676

110 R.I. 606, 69 A.L.R.3d 1202

Winifred WILKINSON v. John M. VESEY.

Carol PEZZULLO, Administratrix of the Estate of Allen W. Wilkinson v. John M. M. VESEY.

Winifred WILKINSON v. Russel R. HUNT.

Carol PEZZULLO, Administratrix of the Estate of Allen W. Wilkinson v. Russel R. HUNT.

Nos. 1479-Appeal to 1482-Appeal.

Supreme Court of Rhode Island.

Oct. 20, 1972.

[110 R.I. 634]

Tobin, Decof, LeRoy & Silverstein, Leonard Decof, Providence, for plaintiffs.

Gunning, LaFazia, Gnys & Selya, Edward L. Gnys, Jr., Providence, for defendants.

OPINION

KELLEHER, Justice.

These are medical malpractice actions brought by a husband and wife against the defendant physicians each of whom has specialized in the field of diagnostic and therapeutic radiology. The wife is the victim of the alleged malpractice. The husband ¹ has sued for consequential damages. A jury trial was held in the Superior Court. At the end of eight days of testimony, the plaintiffs concluded their case. At that juncture, the trial justice first refused them permission to amend their complaints and then granted the defendants' motion for a directed verdict. The plaintiffs seek a reversal of each of these adverse decisions. Since we believe the success of the husband's suit is dependent on the defendants' liability to his wife, we shall hereafter treat her as the sole plaintiff. Sometimes during this opinion, we shall refer to the plaintiff as Mrs. Wilkinson or by her first name.

As we begin our consideration of plaintiff's appeal, we shall give a brief summary of the circumstances and incidents which culminated with the commencement of this litigation.

In June, 1951, Winifred Wilkinson was 33 years old, in very 'good' health, married and the mother of two children. During the early summer, she began to experience radiating pains in her hands, arms and legs. She brought her complaints to the Wilkinsons' family physician, Dr. Eugene Gaudet. He advised plaintiff to enter the Roger Williams General Hospital for a period of observation. Winifred spent a week at the hospital. She received no treatment but, as part of the hospital's routine, had an x-ray taken of her chest.

Sometime after her departure from the hospital, Winifred was notified by Dr. Gaudet that the hospital x-ray showed a 'shadow.'

Winifred returned to the hospital. She remained there for 10 days. During this interval, she met defendants. They were members of the hospital staff and associated in the practice of their specialty. Their office was located on the hospital's premises. Doctor Peter Harrington, ² a 'chest specialist' was summoned in as a consultant. A chest x-ray taken on July 28 and a fluroscope examination conducted on July 30 were interpreted by the two radiologists. A report dated July 30 and signed by Dr. Hunt, but embodying both defendants' conclusions, states that Winifred had 'probably a lymphoma of the mediastinum ³ or possibly a substernal thyroid.'

The defendants recommended that Winifred undergo a 'trial' course ⁴ of deep radiation therapy which began on July 30 and continued each day until August 4. An x-ray taken on August 10 disclosed a shrinkage in the shadow. The defendants viewed this x-ray and diagnosed Winifred's ailment as a malignant tumor in the right upper mediastinum. The therapy treatments continued. They were administered on three different periods of time during an interval which began on August 13 and ended sometime in January, 1952. Each period of treatment extended over a period of several days. During this time, the x-rays were administered sometimes on the chest and other times on Winifred's back. Three different parts of the chest and the back were exposed to the radiation beam. The plaintiff would report to either defendant, both before and after the treatment.

In 1955, Winifred began to notice a discoloration in her chest area. The color went from pink to purple. The skin broke down. Medication proved useless. The back area began to deteriorate. Doctor Harrington informed Winifred that her skin problem was caused by the 1951-52 radiation treatments. The plaintiff was told to seek the aid of plastic surgery. She was first operated on in June, 1960.

At trial time, Winifred's medicalsurgical box score listed eight operations, numerous skin grafts, the removal of seven ribs, the clavicle and the sternum. Her heart has been moved and is cushioned and supported by muscle taken from the left arm. She has had innumerable and lengthy hospitalizations. Testimony was adduced which showed that the condition which caused Winifred to seek the assistance of the plastic surgery was radiation burns which were attributable to the 1951-52 treatments.

In our consideration of plaintiff's appeal, we shall initially discuss the granting of the directed verdict and then go on to the denial of the motion to amend the complaints.

The Directed Verdict

The plaintiff bases her right to proceed against defendants on three different grounds. She charges defendants with negligence in that (1) they incorrectly diagnosed her ailment; (2) the x-ray therapy was improperly administered; and (3) they failed to obtain her knowing consent to the treatment given her.

Since we are reviewing the grant of defendants' motion for a directed verdict, this court, like the trial court, is bound to consider the evidence in a light most favorable to plaintiff without weighing it or assessing the credibility of the witnesses, to give plaintiff the benefit of all reasonable inferences flowing from the evidence, and to leave the determination of any inconsistencies or discrepancies in the testimony adduced by plaintiff to the jury. Lamont v. Central Real Estate Co., R.I., 294 A.2d 195 (1972). When we consider each of plaintiff's theories of recovery in the light of these principles, we are obliged to reverse the granting of the directed verdict.

The Diagnosis

Medical malpractice may consist in the lack of proper skill or care in making a diagnosis as well as in giving treatment. A physician, of course, does not guarantee either a successful treatment or a correct diagnosis. Nevertheless, a claim for a misdiagnosis can be maintained if proof is offered which shows that the diagnosis was incorrect and that it was negligently made. O'Brien v. Stover, 443 F.2d 1013 (8th Cir. 1971); Sinkey v. Surgical Associates, Iowa, 186 N.W.2d 658 (1971); Hollis v. Ferguson, 244 Or. 415, 417 P.2d 989 (1966).

Evidence as to whether a physician has used proper skill and diligence in either diagnosing or treating one's ailment must be supplied by experts unless the lack of care is so obvious as to be within the layman's common knowledge. Nolan v. Kechijian, 75 R.I. 165, 64 A.2d 866 (1949); Coleman v. McCarthy, 53 R.I. 266, 165 A. 900 (1933); Bigney v. Fisher,26 R.I. 402, 59 A. 72 (1904); Barker v. Lane, 23 R.I. 224, 49 A. 936 (1901). The physician's standard of care has been defined as the employment of the same degree of diligence and skill which is commonly possessed by other members of the profession who are engaged in the same type of practice in similar localities ⁵ having due regard for the state of scientific knowledge at the time of treatment. Bigney v. Fisher, supra.

Initially, we believe that expert testimony was required not only to show the requisite standard of care to be followed in the diagnosis and treatment of Winifred's ailment, but also to demonstrate any deviation from that standard. The trial justice, in granting defendants' motion for a direction, made much of plaintiff's failure to produce this type of testimony.

Apparently, the trial justice overlooked the fact that plaintiff called both defendants as adverse witnesses. Each defendant is an expert in his specialty. Doctor Hunt testified that he had spent some thirty-odd years practicing his specialty in Rhode Island. Doctor Vesey spoke of the three years he spent preparing for his specialty. Their testimony can certainly be regarded as expert medical testimony insofar as it described the practice of competent and responsible medical practitioners in the particular medical situation in which Winifred found herself. Console v. Nickou, 156 Conn. 268, 240 A.2d 895 (1968); McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469 (1964); Nishi v. Hartwell, 52 Hawaii 188, 473 P.2d 116 (1970); Chasco v. Providence Memorial Hospital, 476 S.W.2d 385 (Tex.Civ.App. 1972). The requisite standard of care may be adduced by invoking our adverse witness statute. General Laws 1956 (1969 Reenactment) § 9-17-14.

Both defendants testified that they would not recommend the x-ray therapy given Winifred unless they were 'convinced' that she had cancer. Doctor Vesey said that this sentiment was in accord with the accepted practice in his profession in 1951. We believe that this testimony set the community standard for the diagnostic pattern to be followed by a radiologist practicing his art in Rhode Island some twenty years ago. Accordingly, if there was any doubt as to the presence of a malignancy in Winifred's mediastinal area, x-ray treatment should not have been pursued. There is evidence in the record which shows a deviation by defendants from the standard they described.

There is a report dated August 10, 1951, which bears the signature of Dr. Harrington. Incidentally, August 10 was three days prior to the commencement of the three periods of deep radiation treatment. In it is found the following pertinent notation:

'(I)t is important to obtain the miniature preemployment film from State Health Department. This was taken two years ago. If the mass is a recent development x-ray therapy should be completed; otherwise, we should re-evaluate case.'

Doctor Vesey could not remember if he looked at the film. He conceded that the radiologists' record has no entry which shows that the Health Department was contacted and the film examined. Doctor Vesey conceded that if he had seen this...