Alfonso v. Lund

• Decision Date: 10 February 1986
• Docket Number: No. 83-1896,83-1896
• Citation: 783 F.2d 958
• Parties: Robert J. ALFONSO, Plaintiff-Appellant, v. Dr. John C. LUND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 958

783 F.2d 958

4 Fed.R.Serv.3d 1143

Robert J. ALFONSO, Plaintiff-Appellant, v. Dr. John C. LUND, Defendant-Appellee.

No. 83-1896.

United States Court of Appeals Tenth Circuit.

Feb. 10, 1986.

Peggy A. Bowen (Vernon D. Jones, Alamogordo, N.M., was also on brief) for plaintiff-appellant.

Ellen G. Thorne (Rick Beitler of Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, N.M., was also on brief) for defendant-appellee.

Before HOLLOWAY, Chief Judge, and WILLIAM E. DOYLE ^* and McKAY, Circuit Judges.

HOLLOWAY, Chief Judge.

The plaintiff-appellant, Robert Alfonso, brought this diversity action alleging that he had suffered permanent disability and disfigurement to his hand due to medical malpractice. ¹ After trial to a jury, the district judge directed a verdict in favor of the defendant-appellee, Dr. John Lund. I.R. 26. We affirm.

I

The factual background

On December 12, 1978, Robert L. Alfonso, 17 years of age, accidentally injured his right hand with a power saw in Alamagordo, New Mexico. The index and middle finger of his dominant right hand were completely severed. The ring finger was lacerated but not completely separated from the hand.

A neighbor drove Alfonso to a nearby hospital in Alamogordo, the Gerald Champion Memorial Hospital. They arrived at approximately 5:40 p.m. The emergency room physician then took the severed fingers and telephoned Dr. Lund, who was the on-call surgeon. At Dr. Lund's instructions, the emergency room doctor administered certain antibiotics and pain medications in preparation for possible surgery. Tr. 73, 74, 81, 87-88.

Alfonso's mother, Elizabeth Becker, arrived a few minutes later. She called her husband and asked him to check on a helicopter to medivac her son to a different hospital. She met with Dr. Lund approximately two hours later. Dr. Lund said that too much time had elapsed for him to reattach the fingers. Instead, he recommended surgical repair of the remaining hand. When Mrs. Becker insisted that her husband was checking on a helicopter, Dr. Lund said that transfer to another hospital would be useless because too much time had elapsed since the accident. Tr. 166. Finally, the mother consented to surgery. Tr. 164.

The operation began at approximately 8:00 p.m. Dr. Lund closed the stumps, trimming back the nerves and cleansing the wounds. He decided against recessing the nerve endings, telling the mother that he could do so at a later date. Tr. 37-38, 139. He treated the ring finger by straightening the fracture, repairing a tendon, covering the laceration, and splinting the finger. Tr. 140. After Alfonso's discharge from the hospital, he received follow-up care at Holloman Air Force Base. Tr. 145. The Holloman doctors treated Alfonso with whirlpool therapy, removing the splint from his ring finger.

Plaintiff later moved to New Jersey and consulted Dr. Gregory Rauscher, complaining of pain at the stump sites and restricted motion in his ring finger. At trial the plaintiff introduced Dr. Rauscher's deposition testimony in evidence. Dr. Rauscher disagreed with Dr. Lund's failure to refer the boy to a specialist for reattachment of his fingers. Tr. 298. He also concluded that Dr. Lund's technique in closing the finger stumps and in straightening the fractured ring finger was improper. Tr. 314-317.

Plaintiff's complaint alleged negligence by Dr. Lund in failing to reimplant the severed fingers or alternatively in failing to transfer him to El Paso, Texas, or Albuquerque for reimplantation of the severed fingers and proper treatment, and in failing to treat the hand in accordance with accepted medical standards. I.R. 2. Dr. Lund denied all such negligence at trial. The trial judge granted a directed verdict for the defendant on which judgment was entered against the plaintiff, and this appeal followed.

For reversal, the plaintiff strenuously argues that he made a case on his claims for submission to the jury by the testimony of Dr. Rauscher and the admissions by Dr. Lund. We turn now to consideration of the arguments advanced on appeal concerning the evidence and the propriety of the directed verdict.

II

Admission of Dr. Rauscher's deposition

As noted, the plaintiff's case rested primarily on the deposition testimony of Dr. Rauscher. The defendant argues that the deposition should have been excluded entirely and should not be considered by us because plaintiff's counsel had misled defense counsel by saying the Doctor would appear at trial to testify, and then instead by using his deposition and explaining his absence by representing that he could not attend. Further defendant contends that Dr. Rauscher was not competent to testify with respect to the applicable standard of medical care in Alamagordo, New Mexico. We reject these contentions against consideration of Dr. Rauscher's deposition.

First, the trial judge relied on Federal Rule of Civil Procedure 32(a) in admitting the deposition. The Rule states in part:

The deposition of a witness ... may be used by any party for any purpose if the court finds ... (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States unless it appears that the absence of the witness was procured by the party offering the deposition....

Fed.R.Civ.P. 32(a)(3)(B). We do not think that the judge abused his discretion in applying the rule.

The amended pretrial order, signed the second day of trial, states that the plaintiff would call Dr. Rauscher to the stand "[i]n the absence of reasonable notice to opposing counsel to the contrary." I R. 22. The next day, however, plaintiff's counsel announced that Dr. Rauscher would be unable to attend the trial, offering portions of his deposition testimony into evidence. Tr. 184. The trial court, concerned about possible surprise to the defendant, questioned plaintiff's counsel about the reasons for Dr. Rauscher's absence. Tr. 183-87. The attorney explained that two days earlier, Dr. Rauscher had said that he would attend the trial. The following day, however, he said that he would be unable to do so because "he could not get any other help." Tr. 184. The trial judge called Dr. Rauscher's office and was told that he was out of the country. Tr. 184. The judge concluded that he should admit the deposition testimony, and parts of it were read to the jury. Tr. 185-86, 187.

We note at the outset that the admission of deposition testimony lies within the trial court's discretion. Reversal is appropriate only upon a clear showing that the trial judge abused his discretion. See Reeg v. Shaughnessy, 570 F.2d 309, 317 (10th Cir.1978); Sims Consolidated, Ltd. v. Irrigation and Power Equipment, Inc., 518 F.2d 413, 418 (10th Cir.1975), cert. denied, 423 U.S. 913, 96 S.Ct. 218, 46 L.Ed.2d 141 (1975). No such showing of abuse of discretion is made here. Under Rule 32(a), admission of the deposition was proper if Dr. Rauscher was out of the country, unless his absence was procured by the plaintiff. Defense counsel do not dispute the trial judge's implicit finding that the test was satisfied. Instead, they contend that the plaintiff misled them into believing Dr. Rauscher would appear at trial. Appellee's Answer Brief, at 10-12. They nonetheless failed to persuade the trial judge on this theory. We think the trial court was justified in accepting plaintiff's explanation for Dr. Rauscher's absence. See Hartman v. United States, 538 F.2d 1336, 1346 (8th Cir.1976); Ikerd v. Lapworth, 435 F.2d 197, 205 (7th Cir.1970).

III

Sufficiency of the evidence to go to the jury

The principal question before us is whether Dr. Rauscher's deposition testimony was sufficient for submission of plaintiff's malpractice case to the jury. Under New Mexico law liability for medical malpractice requires a showing that the physician departed from recognized standards of medical practice and that such departure was the proximate cause of the injuries which are the subject of the litigation. Schrib v. Seidenberg, 80 N.M. 573, 458 P.2d 825, 826 (App.1969).

On appeal plaintiff Alfonso argues that the defendant was negligent in three respects. First, he says that Dr. Lund should have referred the case to a specialist for reimplantation of the two severed fingers, or that he should have reimplanted the fingers himself. Second, he contends that Dr. Lund was negligent in closing the two finger stumps. Third, he argues Dr. Lund was negligent in his treatment of the fractured ring finger. In connection with each claim, plaintiff argues that the defendant's negligence was the proximate cause of his disfigurement and disability. We will consider each claim of negligence separately.

A.

Failure to reimplant the two severed fingers

Dr. Rauscher testified that under the proper standard of care, Dr. Lund should have referred plaintiff Alfonso to a specialist for reimplantation of the two severed fingers. Tr. 288-89, 292-93. Defendant argues that the plaintiff's case on the reimplantation theory was defective for two reasons. First, defendant contends that Dr. Rauscher was not competent to testify with respect to the standard of care in the Alamagordo, New Mexico area. Secondly, defendant argues that the plaintiff's evidence did not make out a proper case for submission to the jury on the proximate cause issue in that plaintiff wholly failed to show that there could have been a successful reimplantation, avoiding the disfigurement and disability to plaintiff's hand.

The trial judge rejected the first argument of the defendant, holding that Dr. Rauscher was competent to testify with respect to the standard of care applicable in this case. Defendant renews on appeal his objections to the admissibility of Dr. Rauscher's testimony on the standard of care as a ground for affirmance of the directed verdict for the defendant. We therefore treat this issue first.

1.

Standard of care

Under New Mexico law, evidence of the standard of knowledge, skill and care owed by a...