Locke v. Pachtman

Levin, J.

(dissenting). I agree with the majority that expert medical testimony concerning the standard of care and a breach was required. I also agree that the plaintiffs did not establish a jury submissible question of fact on the basis of res ipsa loquitur or on the basis that the evidence of negligence was within the common understanding of the jury.

I would hold, however, that Dr. Judith A. Pachtman’s statements to the effect that she knew the needle that broke during surgery was too small when it was handed to her, and when she used it, were prima facie evidence of the standard of care and breach.

i

The question presented is whether Pachtman’s statements — in effect admitting error but not in lawyer jargon such as "standard medical practice in this community” — are prima facie evidence of the standard of care and breach.

Plaintiff, Shirley Locke testified that Pachtman said that she knew the needle was too small when the new scrub nurse handed it to her, and Danny Locke testified that Pachtman said that she knew the needle was too small when she used it. Drawing all reasonable inferences in favor of Shirley Locke, a jury could reasonably conclude that Pachtman’s statements conveyed her expert medical view that it was not sound medical practice in *235her community to use the particular needle she used in the surgery she was performing.

The majority concludes that Pachtman’s statements may have expressed her belief that she violated her personal standard of care, and her personal standard of care may have been higher than the prevailing standard of care among physicians in the community.

Pachtman’s statements may indeed have concerned her personal standard of care. It is no more probable, however, that the statements concerned her personal standard of care than that they concerned the generally applicable standard of care. The statements refer neither to a personal nor a general standard of care. The statements can reasonably be read either way, and a jury should decide the meaning of.Pachtman’s statements.1 In deciding a motion for a directed verdict, Pachtman’s statements should be read favorably to the plaintiffs, and thus as expressing Pachtman’s expert medical view that a physician in her community would not have used a needle of the size that she used for this particular surgery.

The majority next contends that Pachtman’s statements are not sufficient to establish the standard of care because the statements did not explain "what a reasonably prudent surgeon would *236have done in Dr. Pachtman’s situation.”2 But Pachtman’s statements explain exactly what a reasonably prudent physician would have done in the same situation: a reasonably prudent physician would have used a larger needle. This is not a case in which a physician merely expressed general dissatisfaction with her overall performance or merely expressed regret.

ii

Cases from other jurisdictions indicate that statements like Pachtman’s — that confess error with reasonable specificity — are prima facie evidence of the standard of care and breach.

In Greenwood v Harris, 362 P2d 85, 87-88 (Okla, 1961), the plaintiff alleged that the physician erroneously diagnosed her pregnancy as a tumor, and then performed unnecessary surgery that left the plaintiff with an unsightly and painful scar. The plaintiff’s only evidence concerning the standard of care was the physician’s statements to the plaintiff and her husband that he " 'should have made more tests,’ ” and that he " 'wasn’t satisfied with the lab report [and] should have had the tests run again, . . . should have made some other tests.’ ” (Emphasis added.) The Oklahoma Supreme Court held that those statements alone were prima facie evidence of the standard of care and breach. The court said:

We can interpret these statements in no other way than as an admission that a faulty diagnosis had been made due to the failure of the defendant to use and apply the customary and usual degree of skill exercised by physicians in the community.

In Woronka v Sewall, 320 Mass 362, 364; 69 *237NE2d 581 (1946), the plaintiff claimed that her physician negligently exposed the skin on her buttocks to irritating chemicals during the delivery of a child. The plaintiff’s only evidence of the standard of care and breach was the physician’s statements to the plaintiff and her husband that the plaintiff’s burns resulted from "negligence when they [the plaintiff and the physician] were upstairs [in the delivery room],” and that the plaintiff’s injury apparently occurred when a chemical solution was allowed to stay in contact with her skin for "too long a period.” The physician argued that the word "negligence” did not supply the essential elements justifying a finding of liability.

The Supreme Judicial Court of Massachusetts held, however, that the plaintiff had produced sufficient evidence of the essential elements. The court reached this conclusion although the only testimony that explicitly mentioned the applicable standard of care came from a defense expert who opined that the use of the chemical that irritated the plaintiff was accepted medical practice in Boston at the time of plaintiff’s injury.3

In Greenwood and Woronka, the physicians’ statements indicated with relative precision how they had erred. In Greenwood, the physician, in effect, confessed error in failing to administer certain tests for a second time in the face of inconclusive results, and, in Woronka, the physi*238cian stated that he improperly permitted the plaintiff’s buttocks to stay in contact with a chemical irritant.

Other state supreme courts have found that the standard of care was not established by statements that fail to explain with relative precision what the physician should have done. In Senesac v Associates in Obstetrics & Gynecology, 141 Vt 310, 314-315; 449 A2d 900 (1982), the plaintiff claimed that the physician had negligently performed an abortion. The plaintiff’s only evidence of the standard of care was the physician’s statement that she "had made a mistake, that she was sorry, and that it [the perforation of the uterus] had never happened before . . . .” The Vermont Supreme Court held that the statement was not prima facie evidence of the standard of care.

In Maxwell v Women’s Clinic, 102 Idaho 53, 54; 625 P2d 407 (1981), the plaintiff claimed that the defendant physician negligently performed a tubal ligation. The. plaintiff’s only evidence regarding the standard of care was the physician’s statement that he "obviously messed up.” The Idaho Supreme Court held that summary judgment against the plaintiff was properly granted because the plaintiff did not present sufficient evidence of breach of the standard of care.4

In both Maxwell and Senesac, the physicians’ statements did not explain relatively precisely — as did Pachtman’s — how they had erred.

iii

I conclude, consistent with precedent from other *239jurisdictions, that Pachtman’s statement satisfied Lockes’ burden of presenting prima facie evidence of the standard of care and breach.

I would reverse the judgment of the Court of Appeals and remand for trial.

In Wooten v Curry, 50 Tenn App 549, 552, 554; 362 SW2d 820 (1961), as distinguished from the instant case, the physician, under the law of Tennessee, was subject to liability for malpractice if his conduct fell below his personal standard of care. The plaintiff sought to establish the physician’s personal standard of care by introducing the physician’s statement that he "should” have examined the plaintiff sooner than he did.

The Tennessee Court of Appeals held that the statement was prima facie evidence of the physician’s personal standard of care, and held that a jury must construe any ambiguity in the statement. In the court’s words, "[t]he meaning of, and the weight to be given an admission or declaration against interest are generally questions for the jury.”

Ante, p 229.

In Sheffield v Runner, 163 Cal App 2d 48; 328 P2d 828 (1958), a physician’s statement that he should have put the patient in a hospital was held to be prima facie evidence of the standard of care and breach. In Wickoff v James, 159 Cal App 2d 664; 324 P2d 661 (1958), a physician’s statement that he "sure messed up” was held to be prima facie evidence of the standard of care and breach. In Robertson v LaCroix, 534 P2d 17, 19 (Okla App, 1975), a physician’s statement that he "just made a mistake and got over too far” during surgery was held to be prima facie evidence of the standard of care and breach.

In Cobbs v Grant, 8 Cal App 3d 229, 238; 104 Cal Rptr 505; 502 P2d 1 (1972), the physician’s statement that he "blamed himself for [the plaintiff] being back in there [the hospital]” was held not to be prima facie evidence of the standard of care and breach.