Cervantes v. Forbis

• Decision Date: 03 February 1964
• Docket Number: No. 7334,7334
• Parties: Adelaido CERVANTES, Plaintiff-Appellant, v. R. E. FORBIS and John F. Boyd, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 210

389 P.2d 210

73 N.M. 445

Adelaido CERVANTES, Plaintiff-Appellant, v. R. E. FORBIS and John F. Boyd, Defendants-Appellees.

No. 7334.

Supreme Court of New Mexico.

Feb. 3, 1964.

John E. Hall, Albuquerque, for appellant.

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

MOISE, Justice.

Plaintiff-appellant brought suit against defendants-appellees seeking to recover damages for alleged negligent treatment of a broken right femur. The case was decided in favor of defendants upon motion for summary judgment, and plaintiff appeals from this action by the trial court.

At the time the trial court ruled on the motion for summary judgment it had before it the depositions of the plaintiff, the defendant Forbis, and Dr. Overton, an orthopedist who had treated plaintiff, and a portion of the hospital records covering plaintiff's treatment. In order to dispose of the issues raised on the appeal it is necessary that a few of the facts so disclosed be set forth.

Plaintiff, a linoleum layer by trade, was injured in an automobile accident near Winslow, Arizona, on January 20, 1957. He received treatment from a doctor there, and on January 23, 1957, was brought to Albuquerque and placed in the care of defendants. On January 24, 1957, the right femur, which had been severely fractured in the upper third thereof and in the trochanter area, was treated by defendants by open reduction. The bone fragments were placed in as good position as possible. A Smith-Peterson Nail was inserted and a Thorton Plate was applied to help hold the fragments in position. X-rays were taken during the progress of the operation. At the same time, a break in plaintiff's left arm was set by defendants and thereafter it healed without incident.

Plaintiff suffered considerable hip pain and on June 21, 1957, an obturator neurectomy (nerve cutting) was performed in an effort to relieve the pain and discomfort. Thereafter, on November 15, 1957, another operation was performed which may be best described in the language of the defendant who performed the operation, as set forth in his report of the operation:

'PROCEDURE: Under general anesthesia, a longitudinal incision was made over the greater trochanteric area. Dissection was carried down to the plate and screws. These were removed. The pin was removed from the neck of the femur. On removing the fixation there was found to be a nonunion through the oblique portion of the subtrochanteric fracture. This area was completely curetted out. A moderate amount of dead bone was removed. The shaft of the femur was quite sclerotic, circulation in this area was very poor. The area was curetted, scraped and denuded. An intramedullary pin was then placed through the trochanter, the shaft was alined and the pin down the shaft of the femur. The entire area was then grafted with bone removed from the crest of the right ilium. The wound was closed in layers. Pressure dressing applied.

On undraping the patient the alinement of the leg was not satisfactory, the pin was found to be protruding from the femur anteriorly therefore the patient was re-preped, re-draped, and an incision made over the end of the pin, the pin was pushed up to its entrance in the bone, the bone was alined again and the pin passed down the medullary canal. Wound closed in layers and dressings applied.'

Plaintiff testified that whereas his right knee had suffered no involvement prior to this operation on November 15, 1957, thereafter it was stiff, his right leg was shorter than his left with the foot turned out. It is in this operation that plaintiff claims defendants were negligent.

Without detailing the additional efforts made by the defendants to improve the plaintiff's condition, it is sufficient to point out that thereafter plaintiff went to Dr. Overton who performed two procedures intended to improve the knee stiffness.

As his first point, plaintiff claims that the court erred in granting summary judgment, it being argued that a genuine issue of material fact was present.

First, we consider the properiety of summary judgment in this case. There is little room for argument concerning the applicable rule. We have many times reiterated what was said in McLain v. Haley, 53 N.M. 327, 207 P.2d 1013, to the effect that when a trial court is considering a motion for summary judgment it must determine whether or not there is present a genuine issue of material fact, and in doing so is required to resolve all doubts in connection therewith against the moving party.

We would also point out that plaintiff has a duty, when faced by the motion for summary judgment, to show the court that a fact issue is present. If the opposite party has sustained his burden to establish the absence of a fact issue, but there is available additional proof to the contrary, it is the duty of the party moved against to so apprise the court. He cannot stand silent, but must show its presence. Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531; Srader v. Pecos Construction Company, 71 N.M. 320, 378 P.2d 364.

Plaintiff does not claim he has any additional evidence. He asserts that the facts established by the proof before the court on the motion are sufficient, if believed by the fact finder, to support a judgment in his favor. The facts present here upon which he relies are (1) that the intramedullary pin was forced through the bone and protruded at a point about three inches above the knee (it is insinuated that the pin actually went into the knee causing the knee stiffness or 'locking' but there is no evidence to establish such...