Christy v. Saliterman

• Decision Date: 07 August 1970
• Docket Number: No. 41562--3,41562--3
• Citation: 288 Minn. 144,179 N.W.2d 288
• Parties: Charles Lawrence CHRISTY, Respondent, v. Samuel SALITERMAN, Appellant.
• Court: Minnesota Supreme Court

Page 288

179 N.W.2d 288

288 Minn. 144

Charles Lawrence CHRISTY, Respondent, v. Samuel SALITERMAN, Appellant.

No. 41562--3.

Supreme Court of Minnesota.

Aug. 7, 1970.

Syllabus by the Court

1. In an action against an attorney for negligence or breach of contract, the client has the burden of proving the existence 2. The evidence sustains the finding of medical malpractice on the part of the attending psychiatrist who discharged a psychiatric patient from a hospital by telephone, at a time when the patient was mentally and emotionally affected by recent drug medications and electroshock treatments, to the care of his wife without medical evaluation and without instructions for proper use of sleep-inducing drugs and medications, warning of dangers inherent in excessive use of those medications, and instructions as to custody and control of them.

of the relationship of attorney and client and the acts constituting the alleged negligence or breach of contract; that it was the proximate cause of the damage; and that but for such negligence or breach of contract, the client would have been successful in the prosecution or defense of the action. Once it has been established that the relationship of attorney and client exists and that plaintiff has sustained damages by reason of the attorney's negligence or breach of contract, the right to recovery is established.

3. The law recognizes that, except where the practical commonsense of the jury will enable them to determine that the injury complained of resulted from unskillful or negligent treatment, qualified medical expert testimony is necessary to support the claim that the care and treatment provided did not measure up to required medical standards.

4. The claim that a medical expert whose practice was limited to state hospitals was not qualified to testify as to the usual and customary methods of care in private hospitals is without merit. The record is without evidence or authority to warrant the conclusion that the standard of care followed by a state-employed psychiatrist in a state hospital is any different from that followed by a psychiatrist who practices in a private hospital.

5. The claim that the expert witness was disqualified because he did not reside or work in the immediate 'locality' in which plaintiff was cared for and treated is without merit, as applied to the facts in this case. It is common knowledge that urbanization and technological advances have significantly increased the availability of superior medical information to all practitioners. While the 'locality rule' may still have some validity, as it applies to a general practitioner, it should provide no defense to a specialist who is presumed to be acquainted with the national standards of his profession.

6. One may be competent to testify as a medical expert although he is not shown to be highly qualified to speak upon the subject or is not at the top of his profession. Any person whose profession or vocation deals with the subject at hand is entitled to be heard as an expert, while the value of his evidence is to be tested by cross-examination and ultimately determined by the jury.

7. It is the duty of a physician, in dealing with the care of a patient, to give the patient or his family or attendants all necessary and proper instructions as to the care and attention to be given the patient and the cautions to be observed, and a failure to do so is negligence which will render him liable for resulting injury.

8. A hypothetical question which remains within the range of the issues and the evidence and includes only such facts as the evidence supports or tends to prove is not objectionable. A question may be framed on any theory which can be reasonably deduced from the evidence, and the proponent may select as a predicate therefor such facts as the evidence proves or reasonably tends to establish. An appellate court will not interfere with the exercise of the trial court's discretion with reference to the form and content of such a question unless such discretion has been abused or wrongfully exercised.

9. In arguing the element of damages for pain and suffering to a jury, the 'per diem' approach is not objectionable where 10. The question of excessiveness of a verdict is generally one for the determination of the trial court, and its action in granting or refusing to grant a new trial on that ground will not be disturbed on appeal unless abuse of discretion is shown. In this case, the record does not sustain a verdict in the amount returned by the jury.

it is coupled with an instruction that the argument is not to be substituted for evidence and that the jury should follow the court's general instructions regarding that element of damages.

11. An appellate court will not consider an alleged error on the part of the trial court for failure to submit the issue of diminished damages where that theory suggests entirely new issues and was not asserted at trial.

Meagher, Geer, Markham & Anderson and O. C. Adamson II, Dorsey, Marquart, Windhorst, West & Halladay and Jan D. Stuurmans, Minneapolis, for appellant.

Thomas F. Burns, Minneapolis, for respondent.

UPON REARGUMENT

MURPHY, Justice.

This is an appeal from a judgment in favor of plaintiff and against defendant in the sum of $157,158.54 and from an order of the trial court denying defendant's motion for a new trial in a legal malpractice action. Defendant contends that the verdict is not supported by the evidence; that the medical expert who testified in behalf of plaintiff was not qualified; that the court erred in allowing opinion evidence in response to a hypothetical question which allegedly contained data not in evidence; that recovery should have been limited to the actual amount that would have accrued to plaintiff had defendant attorney diligently pursued a medical malpractice action to a successful conclusion; and that the amount of the verdict is excessive.

From the record it appears that plaintiff, Charles L. Christy, an automobile salesman, 37 years of age at the date of the occurrences which are the subject of this action and the sole support of his wife and nine children, underwent surgery on January 2, 1961, for repair of a hiatus hernia. Despite the apparent success of this operation, plaintiff entered a stage of mental depression. He contacted Dr. Leslie Caplan, a psychiatrist, on January 8, 1961. Dr. Caplan discovered that plaintiff had a history of periodic intemperate consumption of alcohol and medications. The doctor sent him to Glenwood Hills Hospital on March 1, 1961, and his hospital admission form contained the diagnosis, 'Acute anxiety reaction.' Plaintiff made some improvement and was discharged on March 10, 1961. Dr. Caplan's discharge summary noted that plaintiff requested his release in order to return to work.

Plaintiff was rehospitalized on April 13, 1961. Dr. Caplan's medical history stated that Mr. Christy had resumed his consumption of beer and, in turn, had suffered a recurrence of stomach pain and nervous anxiety. He was discharged on April 21, 1961, again upon his expressed desire to alleviate his pressing financial needs. Plaintiff was readmitted on May 27, 1961, under a diagnosis, 'Severe Anxiety State with Depression.' His hospital record disclosed his claim that 'all of a sudden, a week ago he became intensely nervous and has been unable to eat ever since.' On or about May 31, plaintiff discharged Dr. Caplan and employed Dr. Robert Cranston, also a psychiatrist, as his attending physician. Plaintiff was discharged on June 10, 1961, of his own volition in order to return to work. Dr. Cranston noted on his discharge summary that plaintiff was 'not improved.' Plaintiff reentered the hospital on June 17, 1961. His admission record stated that he had consumed several beers that morning, had attempted to ride his child's bike, and had tumbled on his face.

As was the occasion on each of his other hospitalizations at Glenwood Hills Hospital plaintiff received a treatment involving the administration of drugs, barbiturates, and tranquilizers. In addition, he underwent seven electroshock treatments. These were administered on June 29 and 30, and July 1, 3, 5, 7, and 10. Dr. Cranston had scheduled another treatment for July 12, but, because plaintiff's credit was terminated at the hospital, the doctor rescinded the order and discharged plaintiff during the afternoon of July 10.

The discharge was accomplished over the phone. Informed of the doctor's order, Mrs. Christy went to the hospital and accompanied her husband home. They stopped at a drugstore where one of them telephoned Dr. Cranston in order to obtain medication for plaintiff. Dr. Cranston prescribed 2 ounces of paraldehyde to be taken in dosages of 1 teaspoonful every 6 hours as needed and 15 tablets of 50 mg. mellaril, one to be taken twice daily at 8 a.m. and 6 p.m.

That evening plaintiff visited with his family until about 10 p.m., at which time his wife gave him a dosage of paraldehyde. Since paraldehyde is a quick-acting, sleepinducing hypnotic, plaintiff retired immediately. Approximately 4 hours later, the Christys' son, Michael, awoke to the smell of smoke and discovered his father sitting in a blazing chair in the family's living room. Michael pulled his father from the chair and extinguished the flames. However, plaintiff suffered second- and third-degree burns over 30 percent of his body. Ten surgical procedures were required to debride the burned area and apply split-thickness skin grafts. In addition, plaintiff's right elbow was rendered unfunctional.

On the morning of July 11, Mrs. Christy discovered that the bottle of paraldehyde had been removed from the medicine shelf on which she had placed it the previous evening and had been placed in the refrigerator. She was uncertain whether she had given plaintiff the proper dosage (1 teaspoonful) or double that amount (1 tablespoonful) the evening before. In any...