You Goo Ho v. Yee , 43 Haw. 289 ( 1959 )

OPINION OF THE COURT BY

STAINBACK, J.

This is an action for malpractice against two physicians, Dr. Samuel L. Yee and Dr. Edmund T. K. Ing. The jury returned a verdict in favor of defendant Dr. Yee and against defendant Dr. Ing, awarding damages against the latter in the sum of $11,000. From this verdict and judgment Dr. Ing takes an appeal to this court. An appeal was also taken by the plaintiff from the verdict in favor of Dr. Yee but was dismissed by this court because it was not timely. (You Goo Ho v. Yee, 42 Haw. 229.)

Plaintiff is an elderly Chinese woman who had been treated for a numbet of years by Dr. Ing as her family physician. In March 1954 plaintiff was taken to the hospital with a severe illness of what was afterwards diagnosed as caused by gall stones as diagnosed by Dr. Yee who was called in by Dr. Ing as a specialist; this diagnosis was also verified in a consultation with Dr. Joseph Strode.

Dr. Yee operated on March 10 for the removal of gall stones with Dr. Ing assisting. After the removal of the stones both from the gall bladder and from the duct, Dr. Yee inserted a French catheter into the wound for drainage purposes. This catheter was furnished by the hospital and examined by the doctors. After the operation both doctors Ing and Yee attended the plaintiff in the hospital and on March 25 the catheter was removed. At the time it was removed from the wound, according to Dr. Yee’s testimony, he noticed that the tip- of the catheter, about 1%. inches long, which was rounded and perforated, had failed to come out with the rest of the tube.

The patient was discharged on April 10, Dr. Ing signing the hospital report stating: "Abdominal wound was entirely healed. General condition good. She is discharged today and will follow at home or at office.”

Plaintiff contended that the negligent acts on the part of the defendants were, first, failure to remove the tube prior to completing the operation; secondly, their failure to provide postoperative care and failure to notify plaintiff and her family of the presence of the broken tube in plaintiff’s abdomen.'

Physicians testified at the trial that if that portion of the catheter were left in the patient’s body, one of two things would happen: it would either become encysted or would follow the sinus created when it was inserted and finally extrude. The portion of the tube which remained in plaintiff’s body was permitted to remain there until it finally extruded by natural process on May 1, 1955, more than a year after the operation.

Defendant Dr. Ing claimed the court below erred in instructing the jury with respect to res ipsa loquitur and in allowing the case to go to the jury on that theory. The defendant pointed out that the breaking of the catheter was not like the "sponge cases” wherein the doctrine of res ipsa loquitur had been applied,.as the piece of catheter which was accidentally broken off in the patient’s body was intentionally left inside her rather than to risk surgery which, in the opinion of the physician, would be dangerous. The particular instruction objected to was number 9 which instructed the jury that if they found plaintiff suffered injury resulting from a portion of the rubber tube being left in her abdomen after an operation, and if they should find the said rubber tube was under the control and management of the defendants, the fact of the injury itself would be deemed sufficient evidence to support a recovery in the absence of any explanation by the defendants tending to show that the injury was not due to their want of care, etc. Opposition was also made to plaintiff’s instruction number 12 that when the doctrine of res ipsa loquitur is applicable, the jury may presume negligence in the absence of a reasonable and satisfactory explanation as to how the accident occurred. There were other instructions relative to care after the operation which need not be discussed here.

Without deciding that such instructions were erroneous, no harm resulted from the instructions as the jury necessarily found there was no negligence upon the part of the doctors in the breaking off and leaving of the catheter within the body of the plaintiff as the jury decided in favor of the operating physician, Dr. Yee. If the negligence was in the breaking off of the catheter and leaving the same within the body, then Dr. Yee was guilty of negligence for he alone had inserted and removed the catheter. The res ipsa loquitur instructions related only to the leaving of the portion of the catheter within the body of the plaintiff and not to the postoperative care and attention.

Obviously the jury found Dr. Ing’s negligence was in the postoperative care of plaintiff, so even if the instructions were erroneous, as stated in the syllabus in W. W. Ahana v. The Insurance Company of North America, 15 Haw. 636 (1904), "A new trial will not be granted because of an erroneous instruction to the jury when it appears that the instruction did not affect the verdict.”

The next question is whether there is more than a scintilla of evidence to prove that the defendant was negligent in postoperative care and treatment and that such neglect caused damage to the plaintiff.

Several physician witnesses testified that such a wound needed care after the operation and such postoperative care was an absolute necessity and should be checked upon. Without attempting to give in detail the testimony of all of them, we shall point out some highlights in the testimony of some of these witnesses.

Dr. Faus, in testifying that such wound should be watched until healed, stated "I imagine they watched her very carefully.” Dr. Strode testified that such wounds needed care and even with patients on the other Islands he instructed them to come hack to see how they were getting along.

The undisputed evidence of defendant’s own witnesses was that there was a duty upon the part of the attending physician to give postoperative care during the healing of the wound and check upon it. Dr. Yee testified the general practice was that the family physician should carry on treatment subsequent to the operation and let the operating physician know if there are any "untoward symptoms that occur.” In fact, all the physicians agreed that after such an operation the wound should be watched.

In keeping the plaintiff in ignorance of the presence of the portion of the catheter left in the wound, Dr. Ing testified that at the time the tube was removed it was best not to tell the patient that part of the tube remained in her body because of her nervous condition. However, he did say that she should be informed of such fact at the proper time. Dr. Ing never did inform her of this although she continued to request at each visit she made to him the cause of the unhealed wound, and plaintiff was in constant worry and suffering from some unknown cause.

That Dr. Ing did not make any effort to check plaintiff’s condition after she left the hospital is shown by the fact that his first visit was made upon a call by the plaintiff who was suffering from diarrhea. At that time she was told the wound was healing. Likewise, on September 3, the doctor’s next visit, was where he was called by plaintiff or her husband. The third visit was September 8 at the doctor’s office where plaintiff complained to the doctor of her inability to sleep, of her pain, and that the wound was not healing. She was given no information on this visit either as to the cause of her suffering. The fourth and final visit was September 14th where the doctor visited the plaintiff at her home upon request of plaintiff’s husband, where again she was given no information as to the failure of the wound to heal although the doctor admitted that at such visit she complained of the wound not healing. At no time after plaintiff’s September 14 call upon Dr. Ing did he make any effort to ascertain plaintiff’s condition or give her any reason for her pain and the failure of the wound to heal.

After that, the plaintiff obtained the services of several other doctors.

Dr. Pang testified that the unhealed wound was the cause of plaintiff’s nervousness and worry, as likewise did Dr. Sia. Plaintiff was much worried by this condition and thought she was going to die. Dr. Pang testified that from his first visit it was apparent the patient was extremely worried as to why the wound faffed to heal. She displayed anxiety symptoms, because of the pain and the unhealed wound, and that such symptoms continued during the balance of his visits until the tube finally extruded.

The doctors testified further that mental anxiety could cause, or at least aggravate, a high blood pressure condition and there was a relationship between heart trouble and high blood pressure. Some of them testified that heart trouble could be aggravated by worry.

Dr. Sia explained that pus could be absorbed into the blood stream under the circumstances and, if so, it would pass through the kidneys and might affect them.

The pain resulting from her wound and the enclosed portion of the tube might create a hysterical paralysis, according to Dr. Faus, that resulted in an inability to walk.

We need not enumerate the various consultations with the several doctors extending over a period of more than six months, or the fact that although formerly a woman of great physical activity, during this period she was confined to the house.

The plaintiff continued to suffer pain and the wound continued to drain not only over a period of days and weeks, but of months, until the portion of the catheter finally extruded more than a year after the operation.

Certainly if, as testified, this wound was of slight importance, the patient could have been saved nervous worry and aggravation of physical ailments, and large expenses if she had been told what the trouble was. Further, she might have received definitive treatment for the removal of this portion of the catheter — according to Dr. Pang’s testimony definitive treatment for removal of the portion of the catheter should have been given if the wound had not healed within six months. As neither the plaintiff nor Dr. Pang knew of the presence of this portion of the tube remaining within the plaintiff, such treatment was not given.

While it may not be the custom, as some doctors testified, to notify a succeeding physician what has been done, the condition of the patient, and what treatment has been given, certainly Dr. Ing made no effort to notify plaintiff, her family or her succeeding doctors, so that future treatment could be intelligently followed up. In fact, he apparently made no effort after plaintiff left the hospital to keep in touch with her progress as all the doctors testified should be done. He made no calls upon plaintiff on his own initiative and at no time instructed her to return at stated intervals. There is testimony of two doctors that one reason such a wound should be watched is that an abscess might develop.

Further, taking the defendant’s own testimony that plaintiff should be told at the proper time, there is sufficient evidence for the jury to decide that she should have been informed the reason the wound did not heal.

Frank D. Padgett (William F. Quinn and Robertson, Castle & Anthony on opening brief; Arthur R. Reinwald and Robertson, Castle & Anthony with Mr. Padgett on reply brief) for Dr. Edmund T. K. Ing, defendant-appellant. Earl S. Robinson (Fong, Miho, Choy & Robinson) for plaintiff-appellee.

In Eislein v. Palmer, 12 Ohio Circuits 725, the statement is made "the reviewing court holds that there was evidence respecting the alleged negligence of the defendant, in not informing the plaintiff of the broken needle having been left in the incision, which should have gone to the jury.”

There was substantial evidence, more than a mere scintilla, for the jury to find Dr. Ing failed to give proper postoperative care and that such failure resulted in suffering and large expenditures by the plaintiff. (Darcy v. Harmon, 30 Haw. 12, 13.)

Affirmed.