Collins v. Meeker

• Decision Date: 04 March 1967
• Docket Number: No. 44658,44658
• Parties: Billy E. COLLINS, Appellant, v. Bruce P. MEEKER, D. Cramer Reed and George J. Mastio, Appellees.
• Court: Kansas Supreme Court

Page 488

424 P.2d 488

198 Kan. 390

Billy E. COLLINS, Appellant, v. Bruce P. MEEKER, D. Cramer Reed and George J. Mastio, Appellees.

No. 44658.

Supreme Court of Kansas.

March 4, 1967.

Syllabus by the Court

1. A trial court has inherent power to dispose of litigation summarily and on its own motion where no genuine issue of fact exists as to any material fact and where, giving effect to every reasonable inference that can be drawn from the evidence, judgment must be for one party or the other as a matter of law (following Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019).

2. A summary judgment is not to be entered where a genuine issue of fact as to a material matter remains unresolved, even though the court may harbor a suspicion that one or the other party will be unable to prevail at a trial. (following Green v. Kaesler-Allen Lumber Co., supra).

3. Expert medical testimony ordinarily is required to establish negligence or lack of skill on the part of a physician or surgeon in his diagnosis of a case, his performance of surgical procedures and his care and treatment of a patient, except where results are so patently bad as to be manifest to lay observers or as to come within the general knowledge and experience of mankind.

4. Neither a physician nor a surgeon is a guarantor of the accuracy of his diagnosis or the effectiveness of the treatment he prescribed, and negligence is not to be presumed merely because the best results have not been obtained.

5. In the absence of an emergency, a physician or surgeon has a legal obligation to make reasonable disclosure of the risks and dangers incident to a proposed medical or surgical procedure in order that his patient may make an informed and intelligent choice of alternatives, and where no disclosure whatever is made, the physician or surgeon has failed in his duty and expert evidence is not required to establish that his silence deviated from accepted medical practice.

6. Where disclosures of possible results of medical or surgical procedure have been made to a patient and are ascertainable, expert medical testimony is necessary to establish that they were insufficient to accord with disclosures made by reasonable medical practitioners under the same or like circumstances.

7. It is only in a case where common knowledge, observation and experience has shown that injury would not have been sustained by a patient had reasonable surgical care and skill been used, that negligence can be inferred from the injury alone and the doctrine of res ipsa loquitur can be applied.

8. Where a physician or a surgeon abandons a case while his services are still needed without giving his patient notice and opportunity to secure other medical attendance, his conduct may subject him to the consequences resulting from such abandonment. (Following Capps v. Valk, 189 Kan. 287, 369 P.2d 238).

9. The record is examined in an action brought against three doctors to recover damages for alleged malpractice and, for reasons appearing in the opinion, it is held: (1) That summary judgment was properly entered in favor of the defendant D. Cramer Reed and (2) the trial court erred in rendering summary judgment for the defendants Bruce P. Meeker and George J. Mastio.

Russell Cranmer, Wichita, argued the cause, and Gerald L. Michaud, Orval L. Fisher, M. William Syrios, and Kenneth L. Ingham, Wichita, were with him on the brief, for appellant.

William Tinker, Wichita, argued the cause, and Arthur W. Skaer, Jr., Hugh P. Quin, Alvin D. Herrington, Richard T. Foster, Lee H. Woodard, William A. Hensley and William Tinker, Jr., Wichita, were with him on the brief, for appellees.

FONTRON, Justice.

In this action, Billy E. Collins, the appellant herein, has sued three Wichita doctors for alleged malpractice. Three pretrial conferences were had as a result of which the trial court entered summary judgment against Collins and in favor of all three defendant doctors. Collins has appealed from that judgment. In this opinion we will refer to him as plaintiff, or Collins.

Before attempting a recital of the facts, we should point out that each of the defendants is charged with separate acts of negligence. There is no claim that the doctors acted in concert, nor is any question of agency involved in this case.

Highly summarized, the facts which we have gleaned from the pleadings, the admissions of the parties, the various depositions taken in preparation for trial and certain hospital records, appear to be as follows: About January 4, 1962, the plaintiff injured his left groin while at work. Shortly thereafter, his employer sent him to the company doctor, the defendant, Bruce P. Meeker, who upon examination, found a hernia in the left inguinal area. Some three weeks later, Dr. Meeker performed surgery to repair the hernia.

The plaintiff continued to have discomfort and pain in the left groin and down into the scrotum and in May, 1962, he consulted a Dr. Binyon, who is not a party to this lawsuit. Dr. Binyon referred Mr. Collins to the defendant, George J. Mastio. After examining Collins, Dr. Mastio felt he should undergo a period of watching and waiting.

In late November, 1962, apparently at Dr. Binyon's suggestion, Collins consulted D. Cramer Reed, who is also a defendant in this action, and related to him his complaints of pain, nausea and difficulty in having marital relations. Dr. Reed performed a cystoscopic examination of the plaintiff, following which he advised Collins to have more frequent sexual intercourse.

In March, 1963, the plaintiff returned to Dr. Mastio, again at Dr. Binyon's advice, and reiterated his complaints of pain at the site of the hernia repair and radiating down into the scrotum. On April 3, 1963, Mastio operated at the old incision site. Collins continued to have pain and Dr. Mastio rehospitalized him on August 2, 1963. Shortly thereafter (the exact date not being shown) Dr. Mastio discharged the plaintiff as his patient, telling him (according to the plaintiff) that he should go home and get help the best way he could; that he, Mastio, was sick of the whole deal and that Collins was sick in the head and no medical doctor could do him any good.

On August 6, 1963, still suffering pain, Collins consulted Dr. Curtis C. Drevets, who referred him to Dr. Jack W. Graves. Neither of these doctors is a party to this lawsuit. On August 28, Dr. Graves performed a third operation on the plaintiff in which he removed the left testicle.

Against this factual background, we proceed to tabulate the specific acts of negligence which have been charged against each of the three defendants, individually.

1. Dr. Meeker

a. Failing to advise and inform the plaintiff of the risks inherent in the hernia operation he was about to perform.

b. Rebuilding the left external inguinal ring so tightly that it interfered with the supply of blood to and from the left testicle and the flow of secretions therefrom.

2. Dr. Reed

a. Prescribing more frequent intercourse when the external ring was so tight that it interfered with the flow of blood and secretions.

3. Dr. Mastio

a. Failing to inform the plaintiff of risks inhering in the hernia operation he was about to perform.

b. Rebuilding the left inguinal ring so tight that it interfered with flow of blood to and from the left testicle and the flow of secretions therefrom.

c. Incising the spermatic cord during his exploratory surgery.

d. Failure to acquaint himself with previous hospital records pertaining to plaintiff.

e. Discharging and abandoning plaintiff on August 3, 1964, and informing him there was nothing wrong except 'he was sick in the head.'

At this point we take note of the plaintiff's insistence that the trial court erred in rendering summary judgment at a pretrial conference without previous notice and without a motion for summary judgment having been filed. This identical issue was raised in the recent case of Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019, where it was determined adversely to the plaintiff's contention. No good purpose would be served by repeating all that was said in the Green opinion. We believe it sufficient here, to reiterate that a trial court has inherent power to dispose summarily of litigation where no genuine issue exists as to any material fact and where, giving effect to every reasonable inference which can be drawn from the evidence, judgment must be for one party or the other, as a matter of law. Such authority may be exercised by a trial court even though no motion has been filed or prior notice given, provided neither party is placed at a disadvantage because thereof.

Although the trial court couched its order in terms of a dismissal, it seems clear that all parties to this action, as well as the court itself, considered the order to be in the nature of a summary judgment in favor of the defendants. Accordingly, the principles governing the rendition of summary judgments are applicable. (See K.S.A. 60-212(b)(7)).

In passing, we may observe that while no formal motion had been filed prior to the conference of November 1, 1965, at which the court announced that summary judgment would be entered, we believe it would prove difficult for plaintiff to establish that he had been prejudiced thereby. At a pretrial conference held September 7, the subject of summary judgment came up, so plaintiff may hardly claim surprise. However, of greater significance is the fact that the court, at the conclusion of the November conference, gave plaintiff twenty additional days to show cause why the action should not be dismissed. Nothing new is shown to have been presented by the plaintiff and we must assume he chose to stand on the record already made.

The substantial issue presented on appeal is whether the trial court was correct, as a matter of law, in rendering summary judgment in favor of the defendants. Before we can arrive at a decision on this point, we will be required to...