Anthony DiFILIPPO and Anne C. DiFilippo, Plaintiffs Below, Appellants,
Daniel J. PRESTON, Defendant Below, Appellee.
Reargument Denied July 21, 1961.
[53 Del. 540] John M. Bader, of Bader & Biggs, and A. James Gallo, Wilmington, for appellants.
Edmund N. Carpenter, II, and E. Norman Veasey, of Richards, Layton & Finger, Wilmington, for appellee.
Before SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and DUFFY, Judge, sitting.
[53 Del. 541] WOLCOTT, Justice.
This is an appeal from a judgment entered on a directed verdict for the defendant in an action for personal injuries and medical expenses resulting from alleged malpractice of the defendant, a surgeon of Wilmington, Delaware. The plaintiffs, wife and husband, appeal.
Anne C. DiFilippo, one of the plaintiffs, is a 43-year old housewife. In April of 1957 she consulted her family physician, Dr. Russo, complaining of a visible lump in her throat causing some pressure symptoms. Dr. Russo diagnosed her condition as an enlarged thyroid gland, i. e., a goiter, and recommended that she consult a surgeon.
Of two suggested surgeons, Mrs. DiFilippo selected Dr. Daniel J. Preston, the defendant.
Dr. Preston examined Mrs. DiFilippo and confirmed the diagnosis of Dr. Russo. He considered further tests but determined against them as inadvisable, and recommended that because of the pressure on her windpipe and because of the possibility that a goiter, i. e., a diseased thyroid, might become malignant, the thyroid be removed by surgery. This operation is called a thyroidectomy.
Dr. Preston did not warn Mrs. DiFilippo about the possibility of damage to the recurrent laryngeal nerves producing loss of voice as an ultimate effect of the operation. Mrs. DiFilippo consented to have the operation performed.
Dr. Preston operated on Mrs. DiFilippo in May, 1957. The operation was uneventful. In the course of the operation, Dr. Preston was able to find no undiseased tissue in the thyroid gland and, consequently, removed 95% of the gland, leaving 5% of tissue in the posterior area to enable the gland to function partially, and also as a protection against damage to the recurrent laryngeal nerves.
[53 Del. 542] This operative procedure in a thyroidectomy is one method of performing the operation. No visual exposure or examination of the recurrent laryngeal nerves is made by this technique, but a thin layer of thyroid tissue is left to make a barrier between the surgical dissection and the underlying recurrent laryngeal nerves. The technique followed by Dr. Preston is distinguished from a second technique, the so-called Lahey method, which locates and dissects out the recurrent laryngeal nerves, either entirely or partially, so as to be able to see them and thus avoid damage to them.
Since the operation Mrs. DiFilippo has been unable to speak above a hoarse whisper, the cause of which has been diagnosed as injury to the recurrent laryngeal nerves resulting in a paralysis of the vocal cords.
As a result of the paralysis of the vocal cords, in the fall of 1957, Mrs. DiFilippo was forced to submit to a tracheotomy, an operation consisting of making an opening through the patient's neck into the windpipe and the insertion of a 4-inch metal tube through which the patient breathes. Since the performance of this operation, Mrs. DiFilippo has worn constantly a tracheal tube and presumably will be forced to wear it for the balance of her life.
The theory of the action is that Dr. Preston was negligent and thus guilty of malpractice in performing the thyroidectomy as he did, and that he should have followed the so-called Lahey technique to expose to view the recurrent laryngeal nerves and thus avoid injury to them.
Dr. Preston does not deny the possibility that Mrs. DiFilippo's recurrent laryngeal nerves were damaged as a direct result of the operation performed by him. He concedes that damage could have been caused to these nerves by the operation because occasionally these nerves are in an abnormal position anatomically, and occasionally run through the thyroid rather than behind it. He contends, however, that he was [53 Del. 543] not ...