Summary
rejecting the locality rule in the context of medical malpractice
Summary of this case from Lees v. Carthage Coll.Opinion
No. 5.
Argued February 28, 1973. —
Decided April 20, 1973.
APPEAL from a judgment of the circuit court for Brown county: ROBERT J. PARINS, Circuit Judge. Affirmed.
For the appellant there were briefs by Kersten McKinnon, attorneys, and George P. Kersten of counsel, all of Milwaukee, and oral argument by George P. Kersten.
For the respondent there was a brief by Fulton, Menn Nehs, Ltd., attorneys, and Peter S. Nelson of counsel, all of Appleton, and oral argument by Mr. Nelson.
The plaintiff, Vernon Shier, seeks damages for personal injuries from the defendant, Dr. Albert L. Freedman, alleging medical malpractice.
In May of 1961, Shier, a twenty-one-year-old water and sewer construction worker in the Green Bay area, was injured when a 20-to-30-pound clump of dirt fell on his back fracturing two vertebrae in the lumbar spine region. He was treated conservatively. No surgery was performed; he was given various forms of therapy and a back corset. After several months he still had pain in his low back which radiated to his right leg. In June of 1962, a myelogram was given which indicated a sacral nerve root cyst at S-1. Dr. Richard C. Oudenhoven, a neurosurgeon, performed a laminectomy, removing a minimal portion of the vertebral column in the sacral area. This operation alleviated the pain in his leg but the back pain persisted.
In August of 1962, Shier consulted the defendant, Dr. Freedman, an orthopedic surgeon. Freedman diagnosed the problem as an "unstable low back." He treated Shier with physiotherapy, both heat and massage, and a back brace. These treatments were continued from 1962 to 1965 but the back pain continued. Dr. Freedman advised a spinal fusion of L-5, the lowest lumbar vertebra with S-1. Shier consented to the operation and Dr. Freedman was assisted by his partner, Dr. Kaufman. The operation consisted of an H-shaped bone graft with the piece of bone taken from the iliac (hip bone) fashioned into an H-shape, inserted in grooves or notches prepared on the spinous processes of L-5 and S-1, and bone chips placed at that site. The operation, if successful and it usually is, fuses the lower lumbar vertebra to the sacrum. The back becomes rigid but the pain is relieved.
Stated simply, the procedure used by Dr. Freedman was to place Shier in a prone position, incise the area, strip away the muscles and ligament around the spinous process, fashion the spinous process to accommodate the H-shaped bone taken from the iliac, insert the H-shaped bone in place connecting the vertebrae, place the bone chips in the appropriate position and close the incision.
The spinal cord is below the spinous process when the patient is lying on his stomach. In the usual fusion operation there is no occasion to come in contact with the dura (the membranous wall of the spinal cord) nor nerve roots coming from the spinal cord in this area.
After the operation the recovery room records indicate that Shier was in satisfactory condition with no shock, vomiting, headache, backache, chest complications, hiccoughs or other complications. Thereafter the doctors' and nurses' progress notes indicate the following complications: After leaving the recovery room on that same day the nurses' notes indicate Shier had a considerable amount of back pain, was nauseated, and because he was unable to void he was catheterized. On March 17th the doctors' notes state that Shier complained of numbness in the "right buttock only." The nurses' notes state his back was still in pain, he was given Demerol for it periodically, his bed position was changed, he had a headache, he was still unable to void so he was catheterized, and eventually he was resting. The doctors' notes for March 18th showed that he moved well and that "paresthesia was present" in the area with no change. The nurses' notes indicate Demerol was repeated for pain, he was again catheterized, his position changed, and he continued to complain of numbness in his right flank in the kidney area; however, the loss of sensation in this area is not controlled by the sacral nerves. The doctors' notes for March 19th state that Shier still complained numbness in the right buttock and penis. The nurses' notes state he had no desire to void, was catheterized, was up in the room, complained of sore feet, had a headache, had numbness in the left hip region and some pain but it was not stated as to exactly where. On March 20th there was no doctors' progress note but Dr. Freedman ordered an enema. The nurses' notes state he was up and about, unable to void so he was catheterized, had no sensation in the rectum, was given medication for pain and something to sleep. On March 21st the doctors' notes state Shier was neurologically unchanged, there was anesthesia in the scrotal area, the right anal area and glans. The nurses' notes state he had no feeling in the right side of the lower extremities and was given medication for pain and rest.
One of the main disputes was whether or not Shier had a complete loss or gradual and progressive loss of feeling in the saddle area, anal area, penis and testicles. It should also be noted that Shier testified he had no recollection of what had transpired for the first four days after the operation.
During this period, on March 20th, Dr. Oudenhoven was called for consultation at Shier's request. The doctor's examination disclosed the following diagnosis:
"Shier "Attending physician: Dr. Freedman and Dr. Kaufman "Room 922-2 "Consultant: Dr. R.C. Oudenhoven"Consultation
"The patient was examined on March 20, 1965. Clinical examination at that time revealed scrotal anesthesia, on the right, anesthesia of the right glan, and right anal anesthesia. He also complained of urinary retention. On the following day repeat examination revealed the same clinical findings. An instance of rectal fecal incontinence had also occurred during the twenty-four hour interval."On this basis it would be my suggestion that a repeat exploratory laminectomy be carried out in order to determine more accurately why the patient is experiencing root compression involving S-2 to S-4."
It should be pointed out at this juncture in the facts that at trial Dr. Freedman and his expert witnesses interpreted the above progress notes as establishing that Shier's loss of sensation was progressive and not immediate. That is, there was a gradual loss of sensation caused by the H-graft shifting and gradually pressing against the spinal cord, which in turn progressively impinged against the spinal nerve roots shutting off sensation to the areas those nerve roots supply, through no fault of Freedman. In contrast, Shier's attorney maintains that the loss of sensation was immediate and not gradual, based on the testimony of Dr. Oudenhoven.
On March 22, 1965, an exploratory laminectomy was performed by Dr. Oudenhoven, with Dr. Freedman assisting. It was agreed that a re-entry of Shier's back was necessary in order to determine what the exact problem was and what could be done. The procedure used and the operation notes by Oudenhoven are described as follows:
Procedure
" "Following arrival of the patient in the operating room the anesthesia consisted of intravenous Sodium Pentothal followed by endotracheal nitrous oxide and oxygen. The patient was placed on the operating table in the prone position with extension, of the lumbar spine. The low back region was again prepared with a five minute scrub with pHiso-Hex and draped in the usual fashion. The sutures were removed and the wound re-opened. A moderate amount of clot was present beneath the fascial layer. The exploration was then carried out inferiorly until the graft was encountered. This was removed, although the graft itself was tightly fixed in situ and certainly would have resulted in an adequate fusion. Upon removal of the graft, cerebral spinal fluid escaped from an apparent dural tear. However, initially it was impossible to demonstrate the extent of the dural laceration and therefore the spine of L-4 was removed with a Horesly rib shears, and the lamina were removed with Schlessengers and Garrison ronguers. By this maneuver it was possible to demonstrate the superior dural limitations."A V-shaped opening was present in the dura mater itself. Inspection of the nerve roots, the final inspection revealed intact roots on the left. However, the rootlets on the right could not be identified. Only the left roots were present, with the right roots being absent.
"Since it was impossible to consider re-apposition of the root elements, since the distal portions could not be demonstrated, the only thing that could be offered the patient was removal of the pledgett of Gelfoam that was present in the dural opening, as well as re-apposition of the dural margins with five O silk. The dura was closed securely. Jugular compression was carried by Dr. Schumacher and there was no spinal fluid leakage indicating tight dural closure. It was Dr. Freedman's opinion that it was not necessarily indicated at this time to consider any facette fusion.
"The graft was removed from the operative field. Since nothing additional could be offered the patient, the laminectomy retractor was removed and the wound thoroughly irrigated with Saline solution, hemostasis being secured with electrocautery.
"One small section of root was sent to the pathologist for the purpose of identification. It was his report this was normal nerve tissue. Such an impression was assumed to be the appropriate one by the operator. Although the sacral roots were demonstrable on the left, they were not present on the right. Complete hemostasis was secured adequately and the laminectomy retractor was removed. Sponge count was correct. The paravertebral muscles and their fascia were re-apposed with interrupted 2-O silk sutures. The subcutaneous tissues were opposed with interrupted 2-O silk sutures as well. The skin margins themselves were opposed with interrupted 4-O silk sutures in the usual interrupted fashion with the wound being dressed with Telfon and fixed to the skin with non-allergic tape. The patient tolerated the operative procedure well and returned to the recovery room in satisfactory post operative condition.
"Without hesitancy one can state this patient shall not regain neural function in reference to the S-2, S-4 roots on the right. I believe the superior most portions of these root filaments could be demonstrated."
At trial, Dr. Oudenhoven testified as to the exploratory. He stated that upon removal of the graft he visualized escaping spinal fluid and a tear in the dura which was definitely there before he started the exploratory. Further, that the dura tear was V-shaped and when he looked inside the tear at the spinal cord he found the nerves on the left intact but not on the right side. Three nerve roots on the right were cut and their distal ends gone. Oudenhoven gave his opinion to a reasonable degree of medical certainty that Dr. Freedman failed to meet the standard of medical practice in Brown county or the same or similar surrounding localities. In particular, Freedman did not adequately protect the nerve roots during the fusion operation and the roots were evulsed during the fusion operation and Freedman was therein negligent.
It is not disputed that symptoms suffered by Shier are permanent.
Dr. Freedman denied that any act he committed caused the injury. In particular, he did not go into the spinal cord area at all, nor tear the dura, nor sever any sacral nerves when he performed the fusion.
Several qualified medical experts were called and testified at length in behalf of the defendant, Dr. Freedman.
Dr. Kaufman, who assisted with the surgery, testified that Dr. Freedman caused no injury. Dr. Nellen, an orthopedic surgeon, testified that Freedman was guilty of no malpractice with respect to the fusion operation or the after-care and treatment. Dr. Cyrus, Jr., a neuropathologist, testified that the care and treatment by Freedman were excellent. Further, that the hospital records show that there is no evidence that Freedman evulsed the sacral nerve roots of Shier. The testimony of Dr. Nishioka, a neurosurgeon, and Dr. Schneider, an orthopedic surgeon, were similar in that there was no negligence. In effect, they all testified that Dr. Freedman performed the operation in a medically approved manner, that he was not negligent, and that Shier's present symptoms were not caused by any failure or want of care on the part of Freedman. Dr. Nellen testified that it was his medical opinion that when Dr. Oudenhoven performed the March 22nd exploratory laminectomy he severed those nerves in the spinal cord when he took the H-graft out. That is, Oudenhoven caused Shier's injury, not Dr. Freedman.
At the close of the testimony Shier's attorney submitted to the trial court a requested alternative jury instruction. The instruction was a xerox copy of Wis J I — Civil, Part I, 1023 on malpractice, with portions on the locality rule crossed out. The instruction was rejected, and the court gave the standard instruction under 1023. [The plaintiff did not object prior to the giving of this instruction nor when it was actually read to the jury.] In fact, the court asked plaintiff's attorney if there was "[a]nything further as to the form of the verdict, gentlemen," and the attorney answered, "No." The court passed out copies of 1023 to the jurors and read it to them. Question No. 1 of the verdict read: "Was the defendant, Dr. Albert L. Freedman, negligent in his medical treatment of Vernon Shier?"
Withdrawn. See memorandum opinion on motion for rehearing, post, p. 285.
It should be pointed out that during the trial plaintiff's counsel did not object when defendant's attorney phrased his question to the medical witnesses based on the locality rule. In fact, plaintiff's attorney himself phrased some of his questions based on the rule.
The jury returned a unanimous verdict in which it found Dr. Freedman was not negligent. Following a hearing and ruling on motions after verdict, judgment was entered dismissing the plaintiff Shier's complaint. Shier appeals.
The most important issue before us in this case is whether the "locality rule" in medical malpractices in Wisconsin should be abrogated both as to general practitioners and specialists.
For over eighty years Wisconsin has followed the locality rule. Gates v. Fleischer (1886), 67 Wis. 504, 30 N.W. 674. One of the most accurate statements of the rule was pronounced in Burnside v. Evangelical Deaconess Hospital (1970), 46 Wis.2d 519, 175 N.W.2d 230. This court stated at pages 522, 523:
"When a physician exercises that degree of care, judgment, and skill which physicians in good standing of the same school of medicine usually exercise in the same or similar localities under like or similar circumstances, having due regard to the advanced state of medical science at the time, he has discharged his legal duty to his patient. Ahola v. Sincock (1959), 6 Wis.2d 332, 348, 94 N.W.2d 566; Kuehnemann v. Boyd (1927), 193 Wis. 588, 591, 214 N.W. 326, 215 N.W. 455; Jaeger v. Stratton (1920), 170 Wis. 579, 581, 176 N.W. 61; McManus v. Donlin (1964), 23 Wis.2d 289, 127 N.W.2d 22."
The rationale for the rule was first expressed in Small v. Howard (1880), 128 Mass. 131, 136. It was stated:
". . . It is a matter of common knowledge that a physician in a small country village does not usually make a specialty of surgery, and, however well informed he may be in the theory of all parts of his profession, he would, generally speaking, be but seldom called upon as a surgeon to perform difficult operations. He would have but few opportunities of observation and practice in that line such as public hospitals or large cities would afford. The defendant was applied to, being the practitioner in a small village, and we think it was correct to rule that `he was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience, ordinarily possess; and he was not bound to possess that high degree of art and skill possessed by eminent surgeons practicing in large cities, and making a specialty of the practice of surgery.'"
The basis for this rule was that a physician at that time in a small town lacked the opportunity to keep abreast of the advances in the medical profession and that he did not have the most modern facilities to provide care and treatment for his patients. Under these circumstances it would be unfair to hold such a doctor to the same standards of care as doctors who have such opportunities and facilities in larger cities.
The modern trend is not to base the standard of care on geographic localities. Rather, the test is whether the doctor failed under the circumstances of each case in question to exercise that degree of skill and knowledge that is usually exercised in similar cases by other members of the medical profession generally. 37 A.L.R. 3d 420, 432. The rationale for abrogating the locality rule and adopting the modern trend is well expressed in the following two cases. In Pederson v. Dumouchel (1967), 72 Wn.2d 73, 77-79, 431 P.2d 973, the Washington Supreme Court en banc stated:
"The original reason for the `locality rule' is apparent. When there was little intercommunity travel, courts required experts who testified to the standard of care that should have been used to have a personal knowledge of the practice of physicians in that particular community where the patient was treated. It was the accepted theory that a doctor in a small community did not have the same opportunities and resources as did a doctor practicing in a large city to keep abreast of advances in his profession; hence, he should not be held to the same standard of care and skill as that employed by doctors in other communities or in larger cities. Parenthetically, we note that the law of this jurisdiction has never recognized a difference in the professional competency of a lawyer in a small community from that of the professional competency required of a lawyer in a large city.
"The `locality rule' had two practical difficulties: first, the scarcity of professional men in the community who were qualified or willing to testify about the local standard of care; and second, the possibility of a small group, who, by their laxness or carelessness, could establish a local standard of care that was below that which the law requires. The fact that several careless practitioners might settle in the same place cannot affect the standard of diligence and skill which local patients have a right to expect. Negligence cannot be excused on the ground that others in the same locality practice the same kind of negligence. No degree of antiquity can give sanction to usage bad in itself.
"Broadening the rule to include `similar localities' or `similar communities' alleviated, to a certain extent, the first practical difficulty of the `locality rule' — additional witnesses might be available; but it did little to remove the deficiencies springing from the second.
". . .
"Now there is no lack of opportunity for a physician or surgeon to keep abreast of the advances made in his profession and to be familiar with the latest methods and practices adopted.
"`The comprehensive coverage of the Journal of the American Medical Association, the availability of numerous other journals, the ubiquitous "detail men" of the drug companies, closed circuit television presentations of medical subjects, special radio networks for physicians, tape recorded digests of medical literature, and hundreds of widely available postgraduate courses all serve to keep physicians informed and increasingly to establish nationwide standards. Medicine realizes this, so it is inevitable that the law will do likewise. D. Louisell and H. Williams, The Parenchyma of Law 183 (Professional Medical Publications, Rochester N.Y. 1960).'
"We have found no better statement of existing conditions. The `locality rule' has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. The degree of care which must be observed is, of course, that of an average, competent practitioner acting in the same or similar circumstances. In other words, local practice within geographic proximity is one, but not the only factor to be considered. No longer is it proper to limit the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom of a particular locality, a similar locality, or a geographic area.
"The `locality rule' has never been suggested in any English case. ( Nathan, Medical Negligence ( Butterworth Co., Ltd. 1957), p. 21.) In England, the same standard is applicable throughout the country. The extent of our country is such, however, that we hesitate to fix a definite geographic limit upon the standard of care — be it statewide or expanded to the Pacific Northwest, as suggested by plaintiff's requested instruction.
"A qualified medical or dental practitioner should be subject to liability, in an action for negligence, if he fails to exercise that degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances. This standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient. . . ."
In Douglas v. Bussabarger (1968), 73 Wn.2d 476, 489, 490, 438 P.2d 829, the court stated:
"Admittedly, there probably was considerable justification for the local standard rule in frontier days. Dean Prosser points out that the original rationale for this rule was that in early America a country doctor did not have the facilities, contacts, or opportunities for learning and experience afforded by large cities. W. Prosser, Torts sec. 32, at 166 (3d ed. 1964). But times have changed. Modern means of transportation permit country doctors to attend up-to-date medical seminars; the general circulation of medical journals makes new developments readily available to them, and they can easily and quickly communicate with the most modern and up-to-date medical centers in cities throughout the United States. As has been pointed out, today's rural practitioner can and does give and receive advice transmitted thousands of miles over the telephone, and he is expected to keep himself apprised of recent developments as they are regularly published in medical journals. F. Spies, Arkansas Model Jury Instructions: Malpractice, 20 Ark. L. Rev. 86 (1966).
"The editorial board of the Stanford Law Review conducted a survey to determine to what extent the practice of medicine within each of the nineteen recognized specialties of the American Medical Association is similar throughout the country. Letters and questionnaires were sent to each of the American Specialty Boards, the American Medical Association and American Hospital Association, publishers of medical specialty journals, and medical specialty societies. The letters and questionnaires were written with the aid of the Stanford University School of Medicine and several practicing physicians. The conclusion reached was as follows:
"`On the basis of the existence of standardized requirements for certification, subscriptions to medical specialty journals, medical specialty societies, and statements from American Specialty Boards, it is concluded that the practice of medicine by certified specialists within most medical specialties is similar throughout the country. Note, Medical Specialties and the Locality Rule, 14 Stan. L. Rev. 884, 887-88 (1962).'
The results of this survey, although cautiously worded, confirm what was fairly obvious; viz. that there is no longer any basis in fact for the `locality rule.'
"Rural and small-town doctors should not enjoy advantages not given by the law to any other class of rural and small-town tort defendants. When patients considering operations approach doctors in Raymond, the doctors do not admit that they can be a little more careless and act with less responsibility than can doctors in Olympia, who can be a little more negligent than doctors in Tacoma, who can be a little more negligent than doctors in Seattle, who can be considerably more negligent than the doctors in New York City. Certainly, if doctors should freely indicate such discrepancies in medical practice, it would not be surprising that there would be a decrease in the number of operations in Tacoma and Olympia — and a greater decrease still in the Raymond area.
"Many courts have already recognized this situation. Dean Prosser notes the following in regard to the `locality rule,' W. Prosser, supra, at 166-67:
"`The older decisions sometimes stated this as a standard of the "same locality;" but this is now quite generally recognized as too narrow. Later cases expanded it to speak of "the same or similar localities," thus including other towns of the same general type. The present tendency is to abandon any such formula, and treat the size and character of the community, in instructing the jury, as merely one factor to be taken into account in applying the general professional standard.'
Dean Prosser cites cases from California, Pennsylvania, North Dakota, Iowa, Idaho, New Jersey and Florida in support of his statement. The decision in Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (1967) aligns Washington with these states, and updates Washington law with regard to the realities of the contemporary medical practice."
The same reasons that prompted the Washington court to abrogate the locality rule apply with equal logic and persuasion in Wisconsin. Henceforth, in instructing juries in medical malpractice cases, the jury should be told in substance that a qualified medical (or dental) practitioner, be he a general practitioner or a specialist, should be subject to liability in an action for negligence if he fails to exercise that degree of care and skill which is exercised by the average practitioner in the class to which he belongs, acting in the same or similar circumstances. Geographical area and its attendant lack of facilities are circumstances that can be considered if appropriate.
This change is not retroactive and will affect only those cases tried after the date of this opinion.
The defendant's claim is that the locality rule is the law of this case by virtue of a previous appeal in this matter upon a procedural question. We need not reach this issue because of our opinion that the judgment dismissing the complaint should be affirmed.
Shier v. Freedman (1970), 49 Wis.2d 41, 181 N.W.2d 400.
The plaintiff has asked for a new trial because of alleged errors in the instructions to the jury, including the locality rule. Even if we were to hold that the abrogation of the locality rule should be retroactive and apply to this case, we do not believe the failure to give such an instruction could be prejudicial.
Only one witness, Dr. Oudenhoven, testified for the plaintiff. Several specialists, including qualified orthopedic surgeons and neurosurgeons, all unequivocally testified that Dr. Freedman was not negligent. Dr. Nellen testified, in response to a question based upon the locality rule, that Dr. Freedman was not negligent under medical standards here or anywhere else. The principal question was who severed the sacral nerve roots? It is apparent the jury concluded that Dr. Freedman did not. It is not probable another jury with the new instruction as now contemplated would have come to a different result. The substantial rights of the plaintiff were not affected and a new trial will not be ordered.
See sec. 274.37, Stats., and Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis.2d 499, 117 N.W.2d 666.
Other claimed errors in the jury instructions are alleged. We do not think the instructions were erroneous nor was timely objection made to them; accordingly, the error, if any, was waived.
Schroeder v. Northern States Power Co. (1970), 46 Wis.2d 637, 176 N.W.2d 336.
We were also urged to grant a new trial in the interest of justice under sec. 251.09, Stats. From a detailed reading of the entire record we are of the opinion that the case has been fully and fairly tried, that it is not probable that a new trial would bring a different result, or that the jury finding that Dr. Freedman was not negligent resulted in a miscarriage of justice.
By the Court. — Judgment affirmed.
The following memorandum was filed on June 29, 1973.
The appellant's rehearing brief points out that the opinion indicates that the appellant did not preserve his claimed error in the jury instructions by failure to object to the instructions as given. This part of the opinion is in error and is withdrawn. The appellant did submit written requested instructions which the trial court rejected. He need not further object and his claim of error is preserved. However, in this case we have determined the instructions were proper and therefore no reversible error obtains.
Rehearing denied without costs.