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Massa v. Dep't of Registration & Education

OPINION FILED DECEMBER 18, 1985.

MAYNARD LEE MASSA, APPELLEE,

v.

THE DEPARTMENT OF REGISTRATION AND EDUCATION, APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. Thomas Daley, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Defendant, the Department of Registration and Education (hereinafter the Department), appeals from a judgment of the circuit court of St. Clair County reversing the revocation of plaintiff's veterinary license.

The Department filed a six-count complaint against plaintiff, Dr. Maynard Lee Massa, in October of 1982. Count I alleged plaintiff was guilty of gross malpractice in treating a female German shepherd. The Department found plaintiff was guilty of gross malpractice and revoked his veterinarian's license under count I. The Department reprimanded plaintiff for violations under counts III through VI. Plaintiff filed a complaint in the circuit court for administrative review of the agency's action on count I, and did not challenge the action taken on the other counts. The circuit court reversed the Department's finding of gross malpractice under count I as being contrary to the manifest weight of the evidence, and affirmed the findings on the other counts. We affirm the circuit court judgment.

The evidence under count I began with testimony from John Drexler, a part-time dog breeder, who owned an 18-month-old female German shepherd named Palamor's Charlie of Merivern, nicknamed Charlie. Patricia Turisse was co-owner of the dog, but it lived at Drexler's house. The owners had unsuccessfully attempted to breed the animal at one year of age.

On the Saturday of the Memorial Day weekend of 1980, Drexler noticed the dog had not eaten and appeared to be sick. On Sunday morning, the dog was listless and had a temperature of 105 degrees, about four degrees above normal for a dog of this type. Drexler began telephoning veterinarians but received no answer from several. The only veterinarian to answer Drexler's call was plaintiff. Drexler took the dog to plaintiff's office that Sunday morning.

Drexler left the dog with plaintiff, and was later in contact with him several times by phone. During one of the conversations plaintiff mentioned the possibility of surgery. On Monday, Drexler gave plaintiff permission to operate after plaintiff had told him the dog would die without surgery. Drexler told plaintiff this was a breeding animal, and that plaintiff should remove the reproductive organs only if necessary to save the dog's life.

Drexler later phoned plaintiff to withdraw the consent for surgery. Plaintiff told him he was in the middle of the operation at the time. Drexler then requested plaintiff to save any parts removed from the dog. Plaintiff responded that he was not a machine shop and did not save parts.

Patricia Turisse, co-owner of the dog, testified she spoke with plaintiff by phone on Monday evening. He told her he had removed the dog's uterus because it was three times its normal size and was about to rupture. Turisse requested that the uterus be turned over to her, but said she was told by plaintiff at first the uterus was in the garbage, and later that it had been burned.

On Tuesday, the dog died. Turisse picked up the body from plaintiff's office and turned it over to another veterinarian for examination.

The Department's main expert was Dr. Gregory Petkus, a veterinarian. He performed a necropsy, or autopsy, upon the animal. He testified the liver was enlarged and the spleen was three times its normal size. He stated there was no evidence of any infection in the abdominal cavity. He stated the condition of the abdominal cavity was not consistent with removal of a uterus three times its normal size, based in part on the fact there was no enlargement of the arteries and veins surrounding the uterus. He stated, however, that it is not always possible to detect a diseased uterus from the area surrounding it. Dr. Petkus testified it was his opinion the removal of the uterus was a good job of surgery but he further stated that the incision on the dog, which was measured at six centimeters, was not large enough to remove a uterus three times its normal size. Dr. Petkus testified the dog did have phyothorax with pleurisy and pneumonia. He found fluid in the right lung and evidence of infection in the thoracic cavity.

Dr. Petkus also testified that pyometra, which is an infection of the uterus, can be difficult to diagnose, that the disease was very subtle, and that surgery was the only treatment for it at the time this case arose. He stated that in the vast majority of cases, prolonged preoperative supportive therapy rarely is associated with clinical improvement in pyometric situations. He also stated that one of the symptoms which plaintiff described the dog as having, namely a certain level of white blood count, was consistent not only with the lung problem but was also consistent with the diagnosis of pyometra. Further, he stated that if the dog had pyometra and the uterus was about to burst, surgery to remove it should be done before treatment of a problem with the lung. He stated that if the uterus was not about to burst, treating the pneumonia first would be preferable.

Another expert, Dr. David Helland, testified there was no evidence of disease in the dog's reproductive system which would have caused death. He stated the dog suffered from bronchopneumonia with pleuritis. Dr. Helland stated it was his opinion that plaintiff's failure to diagnose the pneumonia while removing a healthy uterus constituted not only negligence but also gross malpractice.

Plaintiff testified that he did treat Charlie over the Memorial Day weekend of 1980. He stated that he listened to the dog's lungs with a stethoscope, and found there was lung difficulty. He found the abdomen tender and noticed some discharge from the vagina. The discharge showed possible pus formation. He conducted various tests, which he stated indicated an infection of the uterus, or pyometra. He gave the dog various drugs based on his diagnosis.

Plaintiff testified although he knew there was some lung difficulty, he did not deem it as serious as the Department's experts felt it to be. He believed he was dealing with infection of the uterus because of the discharge of pus from the vagina. Plaintiff realized an X ray would have been helpful for the diagnosis, but he did not have X-ray facilities available at his office, and felt the dog was not healthy enough to make the trip to the nearest facility with X-ray equipment, which was 20 miles away.

He further testified that after treatment of the dog by various means on Sunday night, on Monday the dog was showing signs of improvement. But because pus was still present, he still felt pyometra existed and that surgery was necessary. He stated he told Drexler of the pyometra and the ...


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