COLLINS v ITOH
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No. 12204 I N THE SUPREME C U T O T E STATE O M N A A OR F H F OTN 1972 RUBY COLLINS, P l a i n t i f f and A p p e l l a n t , -VS - YOKICHI ITOH, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t , Honorable W. W, L e s s l e y , Judge p r e s i d i n g . Counsel of Record: For Appellant : Berger, Anderson, S i n c l a i r and Murphy, B i l l i n g s , Montana. James P. Murphy argued and Arnold Berger appeared, B i l l i n g s , Montana. For Respondent: Berg, ~ ' C o n n e l l , Angel and Andriolo, Bozeman, Montana. Charles F. Angel argued, Bozeman, Montana, Submitted: Filed : NoV 17 1972 September 18, 1972 Mr. Justice John C. Harrison delivered the Opinion of the Court. This is an appeal by plaintiff in a medical malpractice action from a directed verdict for the defendant, entered in the district court of the sixth judicial district, county of Park, Honorable W. W. Lessley presiding. Trial, with a jury comenced in Livingston on November 15, 1971. Plaintiff, Ruby Collins, had been suffering many years from a thyroid problem and taking medication for the condition. In 1964, her condition deteriorated to the point that Dr. Allen Goulding of Billings recommended surgery. Following the recommendation plaintiff consulted defendant, Dr. Yokichi Itoh in August 1964, in Livingston, in regard to a thyroidectomy. On September 11, 1964, defendant performed the thyroidectomy. On the second or third day after the operation, plaintiff exhibited signs of what was 1ater determined to be hypoparathyroidism, characterized by cramping , numb- ness, and muscle spasms. Defendant believed this to be a transient condition, requiring treatment with calcium gl uconate and calcium tablets. Defendant did not receive a pathologist's report on the thyroidectomy until four or five days after the operation. At that time, Livingston Memorial Hospital did not have a "true resident" pathologist. The tissue had been taken to Bozeman for analysis. When the report was received, defendant became aware that he had removed a parathyroid gland during the thyroidectomy. Plaintiff maintained defendant informed her that he had done so by mistake; defendant denies such a statement. Defendant asserted that he merely told her he had removed a parathyroid. After plaintiff's discharge from the hospital, her condition did not improve. Defendant increased the plaintiff's calcium dosage. In February 1965, plaintiff contacted Dr. Goulding for his advice. Dr. Goulding conducted several tests and suggested to defendant that plaintiff be given more calcium and vitamin D. This treatment continued until September 1967, when plaintiff moved from Livingston to Billings. The last time defendant saw plaintiff, he told her she must continue taking the calcium pills the rest of her life. She claimed she did y not know that this was a result of the operation. It is admitted b the defendant that at no time did he inform plaintiff that any risks were involved i n a thyroidectomy. In June 1968, p l a i n t i f f consulted Dr. Sidney Hayes, J r . , of Billings, f o r treatment of her condition. P l a i n t i f f told Dr. Hayes she was taking 35 calcium p i l l s per day f o r her parathyroid condition. Plaintiff contends t h a t i t was not until t h i s time t h a t she became aware of what caused her condition, i . e . , the removal of the parathyroid. P l a i n t i f f said Dr. Hayes t o l d her t h e problem was low calcium because of parathyroid removal. P l a i n t i f f continued under Dr. Hayes' care u n t i l August 1968. Shortly there- a f t e r , p l a i n t i f f f i l e d her complaint i n t h i s action. P l a i n t i f f contends she has t r i e d t o return t o work but painful cramps i n her hands and legs, caused by low ca1 c i um 1eve1 s i n her blood, have prevented her from continuing i n any position. capable of performing even simple maid work. P l a i n t i f f claims she is i n In the interim, between the date of f i l i n g t h e complaint and the date of t r i a l , p l a i n t i f f has twice been hospitalized due t o her parathyroid condition. Defendant contends t h a t these incidents were caused by p l a i n t i f f ' s f a i l u r e t o f a i t h f u l l y take her calcium t a b l e t s , as defendant t o l d her she must do, and w h i c h p l a i n t i f f admitted she did not always do, alleging t h a t these q u a n t i t i e s of calcium t a b l e t s cause illness. P l a i n t i f f maintained t h a t defendant was negligent i n the following particulars: (1) removal of parathyroid t i s s u e during thyroidectomy; ( 2 ) f a i l u r e t o inform p l a i n t i f f of r i s k s i n such surgery; (3) a f t e r removal of parathyroid t i s s u e , f a i l ure t o inform p l a i n t i f f of the consequences of removal ; ( 4 ) f a i l u r e t o consult experts and medical t e x t s before o r a f t e r post-operative treatment; (5) f a i l u r e t o prescribe proper post-operative treatment; and (6) f a i l u r e t o perform surgery where a p a t h o l o g i s t ' s services were immediately available. Defendant denied a l l allegations and raised the s t a t u t e of limitations as a defense. W have made a careful analysis of the f a c t s i n a l i g h t most favore able t o the p l a i n t i f f . However, i n a correct application of t h e law t o the f a c t s , we can find no support f o r overturning the directed verdict f o r defendant. There can be l i t t l e question t h a t p l a i n t i f f was indeed injured. Testimony clearly indicated she must continue to take medication for the rest of her life. But the mere fact she suffered an injury is not enough. "The law does not presuppose that for every injury there must be a recovery in damages." Loudon v. Scott, 58 Mont. 645, 653, 194 P. 488, 12 A.L .R. 1487 : Negaard v. Estate of Feda, 152 Mont. 47, 52, 446 P.2d 436. For the plaintiff to recover there must be a breach of a legal duty owed to her by defendant, which proximately caused her injury. Loudon, supra; Negaard, supra. We will consider plaintiff 's allegations of negligence individually. The pretrial order lists the removal of the parathyroid as the first item of negligence, relied upon by plaintiff Statistical evidence from medical journals presented at trial indicated that removal of parathyroid tissue occurs in one-half of one percent to three percent of the cases. The rare incidence of such occurrence alone does not indicate any negligence on the part of defendant. Salgo v. Leland Stanford Jr. University Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170, 177; Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756. After recognizing those percentages, the fol lowing testimony was el ici ted from plaintiff's witness, Dr. Movius: "Q. The fact that this [removal of parathyroid tissue] occurs surgically 4n whatever the small percentage is, that doesn't necessarily indicate, does it, there was any lack of care on the surgeon's part in performing that particular surgery, does it? A. No, I don't think so. Especially if it's for cancer or re-operation. "Q. Idell, what I'm getting at, in any particular case, without knowing all the details of the surgery, you can't just say that because a parathyroid was removed it was due to lack of care, can you? A. Oh, no." And again, on redirect and recross examination. "Q. Doctor, if we can assume that the statistics of from one-half of one percent to three percent of thyroidectomies include removal of parathyroid tissue, and if we further assume that these statistics include the cancerous, the re-operation and the unskilled hands, is it reasonably medical ly probable that in non-cancerous, non-re-operation situation, in skilled hands, that the percentage would be far less or nonexistent? A. The literature says in skilled hands, for the first operation, the incidence of hypoparathyroidism is rare. "Q. Doctor, the fact that the incidence is rare does not mean that--it does occur, though. A. Yes. "Q. Yes, and that doesn't necessarily mean that when it does occur it's a lack of due care, does it? A. No, it could be an anomalous condition. Although the incidence--We11 , I can only speak for myself . It's never happened to me in a thousand operations." In his final analysis, Dr. Movius testified that even though the occurrence of the removal of parathyroid in a thyroidectomy is rare, it is no indication in itself that it is the result of negligence. There was no evidence upon which a jury could predicate a finding that the removal was due to negligence. PlaJntiff's second allegation of negligence was defendant's failure to inform plaintiff, in advance, of the risks of such surgery. It is, of course, the prevailing rule that where a patient is in such physical health as to be able to consult about his condition, his consent is a prerequisite to surgical operation. 70 C.J.S. Physicians and Surgeons 5 48. Such consent is not a mere rubberstamp of the physician's recommendation. Each man is considered master of his own body and may request or prohibit even 1 ifesaving surgery. The law will not a1 low a physician to substitute his own judgment, no matter how well founded, for that of his patient. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093. This Court has considered the "informed consent" doctrine recently in two decisions: Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d 436, and Doerr v. Movius, 154 Mont. 346, 349-350, 463 P.2d 477. In both cases we recognized the same rule. In Doerr, the court stated: "The general rule on informed consent was set forth by this Court in Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d 436, 25 St.Rep. 632. The duty to disclose to assure that an informed consent is obtained was recognized and described as a matter of medical judgment. This duty to disclose was limited to those disclosures which a reasonable practitioner would make under similar circumstances. If the doctor obtained an informed consent and proceeded as a competent medical man would in a similar situation, his course of action should not be questioned. " 'The g i s t of the "informed consent" theory of 1i a b i l i t y i s t h a t a physician is under a duty under some circumstances t o warn his patient of known r i s k s of proposed treatment so t h a t the patient will be i n a position t o make an i n t e l l i g e n t decision as t o whether he will submit t o such treatment. It' (Emphasis added. ) The question here then becomes whether a one-half of one percent t o three percent incidence of hypoparathyroidism i n a thyroidectomy is a "known r i s k " , and whether a "reasonable1' practitioner would have disclosed those statistics. W think not. e Whether the physician is under a duty t o disclose depends upon the f a c t s of each case; no hard and f a s t r u l e can be s t a t e d as t o what should be disclosed and what can be withheld. D Filippo v. Preston, i 53 Del. 539, 173 A.2d 333; Nishi v. Hartwell, 52 Hawaii 188, 473 P.2d 116; Watson v. C l u t t s , 262 N . C . 153, 136 S.E.2d 617. The s t a t i s t i c a l evidence presented, even when viewed in the l i g h t most favorable t o p l a i n t i f f , does not demonstrate an urgent need t o disclose such information t o the p a t i e n t . The evidence presented was not s u f f i c i e n t t o present a question of f a c t f o r the jury. Furthermore, testimony used t o indicate the custom and practice of a reasonable p r a c t i t i o n e r was inconclusive. Dr. Hayes, witness f o r plain- t i f f , t e s t i f i e d by deposition: "Q. * * * do you generally i n a routine always inform patients t h a t you're going t o do a thyroidectomy on of possible damage t o the parathyroid function? A. If -- yes. That and a recurrent laryngeal nerve. "Q. You do i t i n every case? A. yes. In every case, o "Q. D you know what the other doctors i n Billings do? A. I be1 ieve they do the same thing. "Q. Well, do you know? You say you believe. B u t have you talked t o them? A. Well, how would I know? "Q. Well, t h a t ' s the answer. That's a l l you have t o say. A. I d o n ' t know what they do. "Q. And, likewise, i n Bozeman o r B i l l i n g s , do you know what the doctors down there do? A. I d o n ' t know what they do down there .I' A similar s i t u a t i o n arose i n Schumacher v. Murray Hospital, 58 Mont. 447, 460, 193 P. 397. There, this Court said: *** Dr. Matthews merely says t h a t he uses i t i n his own practice i n a l l cases, but does not know the practice of others i n t h a t regard. Such testimony does not prove negligence nor want of care or s k i l l . " " The custom and practice of one p a r t i c u l a r doctor, without knowledge of the general custom and practice among t h e profession, cannot e s t a b l i s h a reasonable basis t o i n f e r t h a t defendant departed from t h a t practice. Nor does i t i n f e r t h a t a doctor who does not follow t h a t p a r t i c u l a r practice was neg- ligent. See D i Filippo v. Preston, 53 Del. 539, 173 A.2d 333; McPhee v. Bay City Samaritan Hospital , 10 Mich .App. 567, 159 N.W. 2d 880. In view of the testimony of Dr. Movius and Dr. Hayes, we have had raised once again f o r our consideration the question of "standard of care and treatment". The long standing r u l e i n t h i s j u r i s d i c t i o n was s t a t e d i n Negaard t o be: "A d e n t i s t [doctor] who undertakes t o t r e a t a patient assumes a duty t o t h a t patient t o exerc i s e such reasonable care and ski1 1 as i s usually exercised by a d e n t i s t [doctor] in good standing in the community i n which he resides. Donathan v . McConnell, 121 Mont. 230, 193 P.2d 819." See a1 so Hansen v. POCK, 57 Mont. 51 , 187 P. 282. In oral argument counsel f o r both p a r t i e s argued t h a t as t o "medical special i s t s " the "1 ocal i t y rul el' be considered and abandoned. However, the evidence introduced does not give r i s e t o , nor i s the issue raised by e i t h e r party, except on oral argument, our consideration of the r u l e above s e t f o r t h i n Negaard. P l a i n t i f f ' s t h i r d contention of negl igence was t h a t a f t e r the removal of the parathyroid, defendant f a i l e d t o inform t h e p l a i n t i f f of the consequences of removal . In order t o establ ish t h i s contention as a breach of defendant's duty t o the p l a i n t i f f , i t must be shown t h a t such was the standard of care owed t o the p l a i n t i f f . However, no testimony tending t o show t h i s t o be the standard of care i n the medical profession was presented. Neither Dr. Hayes nor Dr. Movius indicated they would a c t i n the manner p l a i n t i f f d e s i r e s , under the same or similar circumstances. The we1 1-recognized r u l e , subject t o c e r t a i n exceptions, is t h a t there must be expert testimony t o e s t a b l i s h negligence i n a malpractice action. Loudon, supra; Schumacher, supra; 81 A.L.R.2d 597. allegation. P l a i n t i f f presented no expert testimony i n support of t h i s In Loudon, this Court said: "The g i s t of t h i s action [malpractice] i s negligence, and actionable negligence a r i s e s only from a breach of legal duty." See also: Jonosky v. Northern Pac. Ry. Co., 57 Mont. 63, 187 P. 1014. Here, no breach of legal duty was demonstrated. W find no merit i n p l a i n t i f f ' s contention number four--fail ure by e defendant t o consult expert i n t e r n i s t s and medical t e x t s before o r a f t e r post-operative treatment. Some courts have held t h a t i t i s t h e physician's duty t o consult o r r e f e r his patient t o a s p e c i a l i s t , i f he knows he does not possess the r e q u i s i t e degree of knowledge o r ski1 1 f o r t r e a t i n g h i s Manion v. Tweedy, 257 Minn. 59, 100 N.W.2d 124; Anno. 35 ALR.3d patient. 349. Testimony indicated the defendant was a qualified medical p r a c t i t i o n e r and t h a t he had performed many troubl e-free thyroidectomies. Certainly no duty t o c a l l i n another doctor a r i s e s when every indication i s t h a t the doctor is f u l l y capable of performing the operation and t r e a t i n g his p a t i e n t i n the post-operative phase. Defendant, t e s t i f y i n g as an adverse witness, indicated c l e a r l y t h a t he had consulted medical books o r journals concerning treatment of the p l a i n t i f f ' s condition. Additionally, he consulted Dr. Goulding on the recommendation of surgery i t s e l f and on the treatment f o r the condition existing a f t e r the operation. Although p l a i n t i f f ' s counsel attempted t o impeach defendant w i t h what was intended t o be a p r i o r incons i s t e n t statement, the only inconsjstency was one of degree. The evidence r e f u t e s t h i s contention. P l a i n t i f f Is f i f t h contention, alleging f a i l u r e t o prescribe proper post-operative treatment, was a l s o not supported by the evidence. The only evidence of treatment d i f f e r e n t from the treatment administered by defendant was the treatment given by Dr. Hayes. However, Dr. Hayes began t r e a t i n g p l a i n t i f f i n June 1968, almost ten months a f t e r defendant had l a s t treated plaintiff, P l a i n t i f f saw no physician i n the ten month interim. There was no showing t h a t Dr. Hayes' treatment was any more "proper" than the treatment administered by defendant. In Schumacher t h i s Court said: "Nor does the f a c t t h a t other physicians might have adopted other methods necessarily render the attending physician l i a b l e , nor show negligence or want of s k i l l or care. I f the method i s one which has substantial medical support, i t i s s u f f i c i e n t . " See a l s o Dunn v. Beck, 80 Mont. 414, 260 P. 1047. Dr. Goulding concurred i n defendant's treatment of p l a i n t i f f , advising only t o increase the calcium dosage and add vitamin D. Plaintiff's witness, Dr. Movius, admitted t h a t calcium plus vitamin D f o r treatment of p l a i n t i f f ' s condition was not improper. Finally, p l a i n t i f f Is l a s t contention--negl igence i n f a i l ing t o perform the surgery where t h e services of a path01 ogi s t were immediately available, has no merit. To uphold such a contention would place an i n t o l e r - able burden upon small hospitals and doctors 1iving i n smaller comrnuni t i e s . The h i n t of t h e p o s s i b i l i t y , e l i c i t e d from defendant, of replacing an inadvertently removed parathyroid i n t o the sternocleidomastoid muscle i s not enough t o e s t a b l i s h such experimental technique as a legal duty. T h i s Court, on a number of occasions, has s t a t e d t h a t cases and issues should not be withdrawn from a jury unless reasonable and fair-minded men could reach only one conclusion from the f a c t s . Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Bridges v. Moritz, 149 Mont. 273, 425 P.2d 721; Holland v. Konda, 142 Mont. 536, 385 P.2d 272. submitted t o the jury. Genuine issues of f a c t should be However, whether evidence on behalf of a p l a i n t i f f i s s u f f i c i e n t t o take a case t o the jury i s a question of law f o r the t r i a l judge. Lovas v . General Motors Corp., (6 Cir.) 212 F.2d 805. A bare s c i n t i l l a of evidence is not s u f f i c i e n t t o require submission t o the jury. Volume 2B, Barron and Holtzoff, $1075, and Johnson v. Chicago, Milwaukee and S t . Paul Ry. Co., 71 Mont. 390, 230 P. 52. Since we have decided t h a t the t r i a l court acted c o r r e c t l y , we need not discuss the issues of res ipsa loquitur o r the s t a t u t e of l i m i t a t i o n s . The decision of the t r i a l court directing a verdict f o r defendant a t the close of the p l a i n t i f f ' s case was c o r r e c t . The judgment i s affirmed, /\ Associate ~ d i j i c e s Associate ~ u c t i c e
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