Buchanan v. Downing

• Decision Date: 20 July 1964
• Docket Number: No. 7400,7400
• Citation: 394 P.2d 269,1964 NMSC 175,74 N.M. 423
• Parties: H. D. BUCHANAN, Plaintiff-Appellant, v. T. I. DOWNING and American Home Products, Inc., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 269

394 P.2d 269

74 N.M. 423

H. D. BUCHANAN, Plaintiff-Appellant, v. T. I. DOWNING and American Home Products, Inc., Defendants-Appellees.

No. 7400.

Supreme Court of New Mexico.

July 20, 1964.

Menig & Sager, Albuquerque, for appellant.

Rodey, Dickason, Sloan, Akin & Robb, Robert D. Taichert, Albuquerque, for appellees.

CARMODY, Justice.

From the granting of a summary judgment in favor of the defendants, in a malpractice case involving the administering of a hypodermic injection of Sparine, plaintiff appeals.

Plaintiff had suffered from vomiting and diarrhea for about three days, when the defendant, Dr. Downing, was called to administer to him. Dr. Downing went to the plaintiff's home and injected Sparine into plaintiff's right deltoid muscle. There was an instant reaction from the shot and the injection site immediately reddened. Thereafter, plaintiff suffered an open, festering wound at the site of the injection and ultimately had to undergo a skin graft, because of the sloughing-off of the skin. Plaintiff then sued Dr. Downing and the manufacturer of the drug, after which extensive discovery procedures were followed, including the taking of depositions of the parties, the propounding and answering of interrogatories, and the filing in the cause of many affidavits.

Upon motions for summary judgment, submitted on behalf of both the defendants, the court granted summary judgment as to each of the defendants, after considering all of the pleadings, the depositions and the affidavits, the court determining that there was no genuine issue of any material fact.

Although the appeal was taken from the judgment in favor of each defendant, plaintiff, in this court, only objects to the summary judgment in favor of the doctor. Plaintiff, in his brief, concedes that, in view of the matters before the trial court, the res ipsa loquitur doctrine may not logically be applied to the manufacturer. Thus we will accept plaintiff's explanation of the fact that the judgment in favor of the manufacturer is not appealed, even though the record shows to the contrary.

Plaintiff strongly urges that the granting of summary judgment is error when an inference of negligence is raised through the proper application of res ipsa loquitur and that inference is not overcome. The defendant, on the contrary, contends that the plaintiff's condition was merely a poor medical result and that the doctrine has no application to the facts of this case.

Plaintiff alleged negligence and reliance upon the doctrine of res ipsa loquitur, claiming that thereby he is entitled to have a jury pass upon the alleged negligence of the defendant. However, other than his own testimony by deposition, vaguely claiming that the defendant doctor was at fault, the plaintiff offered no evidence, by deposition or affidavit, of any witness, expert or otherwise, supporting his allegation of negligence or the proximate cause of the injury.

We have discussed the doctrine of res ipsa loquitur in Hepp v. Quickel Auto & Supply Co., 1933, 37 N.M. 525, 25 P.2d 197, and in Renfro v. J. D. Coggins Co., 1963, 71 N.M. 310, 378 P.2d 130, in both of which cases we found the doctrine not to be applicable; but the doctrine was applied by us in Tafoya v. Las Cruces Coca-Cola Bottling Company, 1955, 59 N.M. 43, 278 P.2d 575. In Tafoya and in Renfro, the following statement appears:

'It is generally said that for the res ipsa loquitur doctrine to apply these elements must exist: (1) That the accident be of the kind which ordinarily does not occur in the absence of someone's negligence; (2) that it must be caused by an agency or instrumentality within exclusive control and management of the defendant. * * *'

There is no particular argument but that the second element above stated is present in this case. It is, however, with respect to the first element around which the entire controversy revolves.

Plaintiff asserts that, in the deposition of Dr. Riley, there is an implication which would satisfy the first element of the res ipsa loquitur doctrine. The statement made by the doctor was, 'This is not a natural reaction to such an injection.' The plaintiff reads into this answer that it amounts to a sufficient showing that the accident would not have occurred but for someone's negligence, and that therefore the doctrine requires the defendant to go forward with the burden of proof. In our opinion, such an implication from the testimony is not warranted, because even though the injury may not have been a natural reaction, it does not follow that an unnatural reaction was the result of negligence. Dr. Riley, in his deposition, went on to state that the reaction could have been due to a number of things, such as the nature of the medicine, the nature and allergies of the patient, or the manner in which the injection was given. It is the absence of any showing that, without the defendant's negligence, the unnatural reaction suffered by the plaintiff would not have occurred, which takes the case outside the res ipsa loquitur rule. The only possible evidence in the record which might be considered, in order to bring the case within the limits of the rule, is so vague, uncertain and conjectural that it can hardly be considered. The evidence referred to is that of the plaintiff when he testified that while he did not actually watch Dr. Downing give the injection, nevertheless that he felt that the needle was not injected deeply into his arm, or that it might have been merely inserted underneath the skin. Again referring to Dr. Raily's testimony, he was asked if such a subcutaneous injection had been given, whether it could have caused such a reaction as experienced by the plaintiff. The doctor answered, 'That is possible.' (Emphasis added.)

Even if we were to assume, for the purposes of this appeal, that Dr. Downing was negligent in giving a subcutaneous injection, there was still a complete lack of any showing that such negligence was a proximate cause of the injury. Other than the plaintiff's bare allegation of negligence, the record is plain that the actual cause of the reaction could have been any one of a number of things. It is not sufficient to show that the negligence charged might fairly and reasonably have caused the injury, if the circumstances shown indicate an equal probability that it was due to some other cause. Renfro v. J. D. Coggins Co., supra. Proximate cause rests on probabilities. Sanders v. Atchison, Topeka &amp Santa Fe Railway Co., 1959, 65 N.M. 286, 336 P.2d 324. Even at best, the expert testimony indicated that negligence as the...