Barnes v. Bovenmyer

Decision Date11 June 1963
Docket NumberNo. 50851,50851
Citation122 N.W.2d 312,255 Iowa 220
PartiesLeo V. BARNES, Appellant, v. Dr. D. O. BOVENMYER, M.D., Appellee.
CourtIowa Supreme Court

Hugh Lundy, Albia, and H. S. Life, Oskaloosa, for appellant.

Gilmore, Dull & Keith, Ottumwa, for appellee.

GARFIELD, Chief Justice.

This is a law action by Leo V. Barnes to recover from Dr. D. O. Bovenmyer, M.D., an eye specialist in Ottumwa, for loss of plaintiff's left eye alleged to have resulted from defendant's negligence in diagnosing and treating an injury thereto. At the close of plaintiff's case the trial court directed a verdict for defendant because of claimed insufficient evidence. From judgment thereon plaintiff has appealed.

Ten grounds were asserted in support of the motion to direct. The first two were that plaintiff failed to offer evidence of his freedom from contributory negligence and was contributorily negligent as a matter of law. The next three grounds asserted insufficient evidence of any negligence of defendant as alleged by plaintiff. The next three grounds of the motion were that there is no evidence any alleged negligence of defendant was the proximate cause of plaintiff's loss and damage and the evidence refutes such claim. The last two grounds of the motion were general and need not be considered.

I. The ruling on the motion to direct does not comply with this mandatory requirement of rule 118, Rules of Civil Procedure, 58 I.C.A.: 'A motion * * * involving separate grounds * * * shall be disposed of by separate ruling on each and not sustained generally.' The ruling was, 'There is clearly an absence of essential proof in a case of this type and the motion is sustained.' The court's remarks to the jury indicated the ruling was based on the fact no doctor expressed an opinion as to defendant's negligence or, if there was such, that it was the proximate cause of plaintiff's injury.

During the 20 years since its adoption we have so often called attention to the importance of compliance with rule 118 it should not be necessary to do so again. See Mooney v. Nagel, 251 Iowa 1052, 1054-5, 103 N.W.2d 76, 78, and citations; In re Condemnation of Certain Land, 253 Iowa 1130, 1134, 114 N.W.2d 290, 292.

Fortunately defendant has somewhat narrowed the issues on appeal by telling us in oral argument he does not rely on contributory negligence and his printed brief does not seek to uphold the judgment on either of the first two grounds of the motion to direct. We may observe there is substantial evidence plaintiff exercised ordinary care in the matter in controversy and a holding he was contributorily negligent as a matter of law would be not justified.

This leaves the two questions which are present in so many actions to recover for injury to the person--sufficiency of the evidence of defendant's negligence and, 2) if there is such, that it was the proximate cause of the injury.

II. These propositions are deemed so well established that authorities need not be cited in support of them: In considering the propriety of a directed verdict for defendant we give plaintiff's evidence the most favorable construction it will reasonably bear. Generally questions of negligence and proximate cause are for the jury; it is only in exceptional cases that they may be decided as matters of law. See rule 344(f) 2 and 10, R.C.P.

III. About 6:30 in the eventing of Sunday, June 29, 1958, a small piece of steel pierced plaintiff's left eye and lodged in it. It flew from a hammer or hatchet used by another person. The eye colored up and blood from the wound went clear to plaintiff's belt. Defendant, an opthalmologist or eye specialist, was immediately called but could not be reached. Plaintiff then called the Ottumwa hospital and arrived there not later than 7:15. Dr. Emerson, a general practitioner for a year in Ottumwa, was on call, examined the eye externally and with an ophthalmoscope, saw an injury to the eye which was externally apparent, ordered X-rays taken of the eye and then called defendant.

An ophthalmoscope is an instrument for viewing the interior of the eye. Seven X-rays of the eye were taken, at least some of which showed the foreign body in the eye.

When defendant arrived he also examined the eye externally and with the ophthalmoscope, to look through the eye for possible foreign bodies in it and for damage to the eye that might be detected. Defendant, Dr. Emerson and the radiologist then examined the X-rays. Dr. Emerson testifies none of them saw the foreign body in the eye nor in the X-rays thereof. The two named doctors did see a red spot on the sclera, white part of the eye, which Dr. Emerson says could have been a bruise and could have been a point of entry into the eye of a foreign body. 'It was possible either way. You never know for sure.'

There was also an injury to the lower eyelid into which defendant probed and removed therefrom a small piece of steel. Dr. Emerson and, apparently, defendant thought this was the only foreign body in the region of plaintiff's eye and no attempt was made that evening to remove the piece of steel imbedded in the eyeball.

Dr. Emerson, called as a witness by plaintiff, testifies on cross-examination that after defendant removed the foreign body from the eyelid defendant told plaintiff he thought the foreign body was removed and he would probably be all right but he wanted him to return to his office the next morning. 'I heard Dr. Bovenmyer urge the patient to return to his office the next morning. I figure that is part of the treatment. I did not object to that direction or treatment. I regarded that treatment as usually customary and the standard of care for treatment of such patients in June, 1958.'

We regard the quoted testimony as of vital importance on the issue of defendant's negligence. There is no evidence contrary to the part we have emphasized. However, there is a sharp dispute as to what defendant told plainiff when he left the hospital that evening. Plaintiff denies defendant said he wanted to see him the next morning, he insists he asked defendant if he cared to see him again, defendnat told him it was not necessary and there was no reason he could not go to work the next evening. Plaintiff also says he was in the building where defendant's office was on an errand the following (Monday) morning but did not go in because of what defendant told him the evening before.

Plaintiff worked nights at an Ottumwa plant, from 11 p. m. to 7 a. m. He worked Monday night as he says defendant told him he could. Before the night was over he suffered almost unbearable pain in his eye. He went to defendant's office about 8:15 Tuesday morning but was unable to contact defendant. The lady in charge of the office told him defendant would be there that afternoon and plaintiff could contact him then.

Plaintiff returned to the office a little after 4. Defendant examined the eye, sent him to another office in the same building to get more X-rays promptly, plaintiff went right to the radiologist as directed, after the X-rays were taken he was told to return promptly to defendant's office and he did. 'Very shortly after my return, Dr. Bovenmyer told me there was a foreign body in my eye and I should go very promptly to Iowa City and have that foreign body removed and I did. He told me we would call the hospital at Iowa City. * * * He said we are going to Iowa City and we want to get there as quick as we can.'

Dr. Emerson testifies defendant told him on or after July 2 (Wednesday) he saw plaintiff Tuesday afternoon, sent him for his follow-up X-ray, appearance of the eye was not right, 'on the X-rays taken July first there was still the foreign body present that it showed on the original X-rays on June 29th.' Also that defendant told him plaintiff did not report back Monday morning as the witness understood plaintiff was to do, defendant saw the eye Tuesday afternoon 'and ordered it reX-rayed immediately.'

Plaintiff's father drove him to Iowa City Tuesday evening. He went right to the eye ward at the State University hospitals, physicians examined the eye, found a metallic foreign body in it, more X-rays were taken, an eye surgeon was called that same evening, an incision was made in the sclera of the eye and in 10 or 15 minutes a piece of steel was removed through the incision with a magnet. The piece was shaped somewhat like a half moon, about 1/16-inch wide and 1/8-inch long.

The eye was inflamed from infection in it. After treating this condition for 18 days in the University Hospitals in an attempt to save the eye, it was found necessary to remove it on July 19. Plaintiff was sent home from the hospitals on July 24.

The University Hospitals' record of plaintiff for July 1 contains this statement: 'Dr. Bovenmyer removed a piece from lower lid Sunday light & let go.' Whether the information defendant let plaintiff go Sunday night was obtained from plaintiff or defendant does not appear. The exhibit referred to was admitted in evidence without objection. It tends to corroborate plaintiff's version of what defendant told him before they parted Sunday night. Another part of the University Hospitals' record describes plaintiff's eye injury as 'perforation.'

The roentgenologist's report of the X-rays taken in the Ottumwa hospital contains this: 'Views of the orbit reveals evidence of a sharp metallic foreign body measuring approximately 2 mm. in length and 1 mm. in width, in the region of the left orbit. Metallic density appears to be in the anterior and lateral quadrant of the eyeball.'

IV. We hold there is substantial evidence of defendant's negligence as alleged by plaintiff. The clearest such evidence is to the effect defendant assured plaintiff before they separated Sunday evening it would be unnecessary for him to see defendant again and he could go to work at the plant the following evening, together with Dr. Emerson's testimony, brought out by defendant, that it was part of the usually...

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21 cases
  • DeBurkarte v. Louvar
    • United States
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    • September 17, 1986 evidence the plaintiff's cancer probably spread after September, 1981, preventing her from being cured. See Barnes v. Bovenmyer, 255 Iowa 220, 229, 122 N.W.2d 312, 317 (1963) (in medical-malpractice action, expert testimony is generally necessary to establish causation). On the other han......
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    ...Perin v. Hayne, 210 N.W.2d 609, 615 (Iowa); Grosjean v. Spencer, 258 Iowa 685, 691, 140 N.W.2d 139, 143; Barnes v. Bovenmyer, 255 Iowa 220, 228, 122 N.W.2d 312, 316. Also, after noting this state's previous adherence to the locality rule, this court stated in There seems to be sound basis f......
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