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Asher v. Stromberg

DECEMBER 13, 1966.

DR. HARRY H. ASHER, PLAINTIFF-APPELLANT,

v.

DR. WILLIAM B. STROMBERG, JR., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, County Department, Law Division; the Hon. IRWIN N. COHEN, Judge, presiding. Judgment adverse to plaintiff reversed.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment entered in favor of defendants after a verdict of not guilty was returned by a jury.

Plaintiff, Dr. Harry H. Asher, is a dentist practicing in Chicago, Illinois. Defendants are a group of doctors, specializing in hand surgery, affiliated with Passavant Hospital. Dr. Michael Mason, now deceased, was a member of the group.

Plaintiff, a practicing dentist for 33 years, had occasion to x-ray the dental structures of many patients. From 1931 to 1941, it was his custom to hold the x-ray plate in the patient's mouth with his left index finger. In 1958, plaintiff developed a condition of radiation dermatitis and experienced a callous on his left index finger, which would break down and heal spontaneously. Radiation dermatitis is a condition resulting from excessive exposure to x rays and as a result the cellular structure of the skin breaks down and the underlying blood vessels are destroyed so that nourishment to the skin is cut off. Radiation injury is a source of skin cancer. There are several types of skin cancer, all of which destroy tissues in the body. One type is squamous cell cancer. When a squamous cell cancer has a hand or finger as its primary site, the secondary site of its spread is in the lymph nodes located in the armpit. In discovering the presence of skin cancer, the medical profession is in accord that the only sure way is by the performance of a biopsy. A biopsy is the removal of a small portion of tissue for microscopic examination.

Plaintiff first visited defendant, Dr. Koch, in the spring of 1958, at which time Dr. Koch suggested that the callous be removed from the finger and a skin graft be performed to prevent any further breakdown of the skin. The operation was performed at which time the callous was excised and skin taken from the thigh was grafted over the wound. The excised callous was sent in its entirety to a pathologist for examination or biopsy. There was no finding of malignancy. Plaintiff returned to the hospital for a further examination. The skin graft did not take and on August 18, 1958 further surgery was performed to accomplish another skin graft. Plaintiff concedes that the 1958 treatment is not the basis for his cause of action.

In July of 1961, plaintiff noticed a redness in the lower third of the same finger. Plaintiff contends he consulted and was examined by Dr. Stromberg in the fall of 1961 and that he thereafter saw Dr. Stromberg on five or six occasions. Defendants contend, however, that plaintiff first consulted Dr. Stromberg on February 13, 1962. The examination by Dr. Stromberg revealed that the skin on plaintiff's finger had cracked open. Dr. Stromberg advised plaintiff that he would have to have another operation, either a split-thickness graft as before, or a pedicle flap graft from the next finger. Dr. Stromberg suggested that an amputation might be advisable. According to plaintiff, he asked if there was any malignancy and was told there was absolutely none. This was denied by Dr. Stromberg. Dr. Stromberg's version, at the trial, was that he pointed out that the index finger was essentially a useless digit, due to the extent of the ulcer, stiffness and the lack of sensation. Dr. Stromberg advised plaintiff to clean the area with soap and water.

Plaintiff continued to see Dr. Stromberg several times a week and testified, at the trial, that Dr. Stromberg told him on these occasions that there was no malignancy. Plaintiff stated that Dr. Koch and Dr. Stromberg proposed that another split-thickness graft be performed. Dr. Stromberg performed the skin graft. He took no steps to determine whether there was any malignancy present. On April 1, 1962, and on subsequent visits, skin was snipped from the edges of the latest graft. Dr. Stromberg testified that he again recommended the removal of the finger. Plaintiff denies that this recommendation was made. Testimony was elicited from defendant, Dr. Stromberg, under section 60 of the Civil Practice Act, that on April 2, 1962, while plaintiff was hospitalized for pneumonia, he was given a physical examination by a fourth-year medical student at Northwestern University and there was found in the lymph nodes, one moveable, nontender smooth lymph node, one centimeter in diameter, palpated in the left axilla. Dr. Stromberg admitted that one of the methods in which cancer in the finger can be demonstrated as a secondary symptom, is discovery of such a lymph node in the armpit lymph glands. He further stated that during this hospitalization between April 2 and April 7, 1962, that he had all the hospital records and was familiar with their findings and that he did nothing to determine whether or not the examination report meant there was any malignancy in the finger he was treating. On May 8, 1962, plaintiff was informed that the operation was not a success and that a pedicle flap graft would have to be performed.

On May 10, 1962, plaintiff consulted with Dr. Wayne Slaughter, who sent him to Dr. Danely Slaughter, for multiple biopsies. Biopsies of tissue removed from the ulcerated area were performed and revealed the presence of cancer, specifically a squamous cell carcinoma. On learning of the presence of cancer, Dr. Danely Slaughter informed plaintiff that the finger and the head of the metacarpal would have to be removed and surgery for that purpose was performed on May 22, 1962. While operating, Dr. Danely Slaughter discovered that the cancer cells had spread beyond the finger and the operation was halted in order to get the plaintiff's consent to remove more than the finger. A subsequent operation resulted in the amputation up into the forearm when the biopsies showed the presence of cancer in that area. A subsequent examination of plaintiff revealed enlarged lymph nodes in the armpit, which was indicative that cancer cells had reached this area. The nodes were removed for biopsy purposes and it was determined that they contained metastic cancer. The forequarter operation was performed, which resulted in the removal of the entire arm and shoulder of plaintiff. Since the latter operation and up to the time of the trial, plaintiff has been observed and treated by Dr. Danely Slaughter.

Plaintiff's theory of the case is

(1) that defendants failed to meet or overcome plaintiff's prima facie case and thus the trial court erred in refusing to direct a verdict for plaintiff,

(2) that even if some defense was made which warranted submission of the case to the jury, the verdict of the jury was against the manifest weight of the evidence,

(3) that prejudicial error was committed by the trial court in

(a) failing to weigh the evidence,

(b) instructing the jury on the issue of contributory negligence and

(c) in excluding a statement of Dr. Stromberg, wherein he admitted he was at fault.

Defendants' theory of the case is

(1) that the verdict was proper in that the evidence revealed

(a) that there was no malpractice on the part of the doctors in that the school of hand experts to which they belonged did not advocate partial biopsies,

(b) that the injury was not the proximate cause of the alleged negligent acts,

(c) that plaintiff's condition was caused by his own contributory negligence, and

(2) that no prejudicial error was committed by the trial court in that

(a) the statement of the trial court did not indicate an inability to ...


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