Conrad v. St. Clair

• Decision Date: 05 July 1979
• Docket Number: No. 12479,12479
• Citation: 599 P.2d 292,100 Idaho 401
• Parties: Ernest CONRAD, Plaintiff-Appellant, v. Gilbert C. ST. CLAIR, as Personal Representative of the Estate of G. L. Barnard, M.D., Deceased, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 292

599 P.2d 292

100 Idaho 401

Ernest CONRAD, Plaintiff-Appellant, v. Gilbert C. ST. CLAIR, as Personal Representative of the Estate of G. L. Barnard, M.D., Deceased, Defendant-Respondent.

No. 12479.

Supreme Court of Idaho.

July 5, 1979.

Rehearing Denied Sept. 14, 1979.

James Annest, of Annest & Anderson, Burley, for plaintiff-appellant.

R. Vern Kidwell, of Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, for defendant-respondent.

BISTLINE, Justice.

In this action for medical malpractice, plaintiff Conrad sued the personal representative of the estate of Dr. G. L. Barnard, who died prior to the institution of the action.

Plaintiff, a field construction boilermaker, injured his back on August 26, 1971, while trying to lift a heavy object. A doctor in Utah gave him medication for the diagnosed muscular strain. After continued problems, he consulted his family physician, Dr. Gary Haddock of Blackfoot, Idaho. Dr. Haddock diagnosed a herniated intervertebral disc and hospitalized plaintiff from October 14 to October 21. Dr. Haddock recommended "conservative" treatment, mainly rest, but plaintiff was anxious to return to work and insisted upon exploring the possibility of surgery. Dr. Haddock referred plaintiff to Dr. Barnard.

Dr. Barnard admitted plaintiff to the hospital on November 7 and performed the surgery the next day, removing as much of the offending disc as was possible. However, after being released on November 17, plaintiff returned to Dr. Haddock several times, allegedly because Dr. Barnard would not give him an appointment, complaining of continued pain and disability. After consulting Dr. Barnard, Dr. Haddock prescribed physical therapy. Dr. Haddock testified that plaintiff was slowly responding; plaintiff claimed the therapy merely aggravated his condition.

Plaintiff failed to significantly improve and was hospitalized again on March 20. After surgery the following day, again performed by Dr. Barnard, he remained in the hospital until April 6. At times he complained of pain but at other times he indicated he was pleased with the surgery. However, once plaintiff was released his condition worsened again. He reported having to crawl to the bathroom because of loss of strength in his legs and also claimed a continued high fever of 103 degrees.

Plaintiff returned to Dr. Haddock on April 10 and was given pain medication and penicillin. X-rays were also taken. Both Dr. Haddock and Dr. Barnard apparently believed plaintiff was malingering, and Dr. Barnard suggested that plaintiff consult another surgeon. Dr. Barnard's records indicated, however, that he did feel plaintiff was 5% Disabled. Plaintiff was referred to Dr. Gresham, who performed a third operation on June 21. He assigned plaintiff an overall disability of 35% But found him 100% Disabled for his prior occupation.

At trial, plaintiff attempted to show that Dr. Barnard had been negligent either in the surgery itself or in failing to properly diagnose and treat disc space infection. Plaintiff's primary witnesses were Dr. Haddock and Dr. Gresham. However, plaintiff was able to elicit little useful testimony from them, as might have been expected, both doctors having given affidavits in support of defendant's unsuccessful motion for summary judgment. Dr. Haddock testified that back surgery is only successful about 85% Of the time and that the result here was hence not unusual. He also claimed that x-rays showed degenerative arthritis which would contribute to plaintiff's slow recovery and pain. Dr. Haddock stated that plaintiff's symptoms Could indicate infection but could also be a normal post-operative reaction by the body. The most damaging testimony to plaintiff's case was Dr. Haddock's opinion that it was not the surgery that prevented plaintiff from working but the disease, that failure of the surgery to "cure" him did not show the infliction of any injury, and that surgical error was not more probable than further degeneration from the arthritis.

Dr. Gresham's testimony also did little to aid plaintiff's cause. He stated that three operations on one patient is not unusual, and that not only is it common to remove only part of the disc, but it is often dangerous to attempt to remove all of it. He indicated that further fragmentation of the disc could have caused plaintiff's recurring problems, and he saw nothing that indicated any surgical error on Dr. Barnard's part. Dr. Gresham further testified that the best procedure to diagnose infection would be to obtain a sample of the polymorphonuclear exudate ("pus") and culture it, but that this procedure is not always possible. He found insufficient signs to justify this procedure in plaintiff's case. He elected to administer general antibiotics, as had Dr. Barnard, and stated his finding that the elevated temperature was a normal reaction, observing that it later dropped to normal. Dr. Gresham also mentioned that while he was out of town three other doctors substituting for him did not note having observed any infection.

After plaintiff rested, the court ruled as a matter of law that there was no evidence of any surgical error and took that issue from the jury. However, he did allow the jury to decide the issue of whether there was error in the post-operative care, I. e., whether Dr. Barnard was negligent in failing to diagnose and treat infection. He did so on the basis of testimony as to plaintiff's symptoms and the best methods of diagnosis and treatment, leaving it for the jury to decide if Dr. Haddock and Dr. Gresham were correct in stating that, given the symptoms evidenced by plaintiff, Dr. Barnard was not negligent.

In addition, the trial court: 1) applied the prohibition of the "dead man statute," I.C. 9-202(3), and excluded plaintiff's testimony as to conversations had with Dr. Barnard on the risks of surgery; ¹ 2) denied requested instructions that would impose an absolute duty on physicians to use the most modern techniques; and 3) denied instructions on Res ipsa loquitur.

The jury found for Dr. Barnard. The court denied plaintiff's motion for a new trial and entered judgment upon the verdict. Plaintiff appealed, claiming error in the three rulings just enumerated, and also alleging that the evidence was insufficient to support the verdict in the doctor's favor.

SUFFICIENCY OF THE EVIDENCE TAKING THE ISSUE OF SURGICAL NEGLIGENCE FROM THE JURY DENYING THE MOTION FOR A NEW TRIAL ON THE ISSUE OF POST-OPERATIVE NEGLIGENCE

It is axiomatic that "(o)n appeal from a judgment entered on a jury verdict, this court will not set aside the verdict if it is supported by substantial and competent evidence." Stoddard v. Nelson, 99 Idaho 293, 581 P.2d 339 (1978); Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974).

"By substantial, it is not meant that the evidence need be uncontradicted. All that is required is that the evidence be of such sufficient quantity and probative value that reasonable minds Could conclude that the verdict of the jury was proper. It is not necessary that the evidence be of such quantity or quality that reasonable minds must conclude, only that they Could conclude."

Mann, supra, 95 Idaho at 736, 518 P.2d at 1198. Thus, we must decide whether the evidence was such that reasonable minds could find for the defendant.

To prove a case in malpractice a plaintiff has the burden of proving several elements. First, the plaintiff must show that the physician was negligent in failing to use ordinary care. ² Hall v. Bacon, 93 Idaho 1, 453 P.2d 816 (1969); Willis v. Western Hospital Association, 67 Idaho 435, 182 P.2d 950 (1947); Swanson v. Wasson, 45 Idaho 309, 262 P. 147 (1927). In addition, plaintiff must show that such failure to use ordinary care was the proximate cause of plaintiff's injury. Hall, supra; Willis, supra; Swanson, supra; Flowerdew v. Warner, 90 Idaho 164, 409 P.2d 110 (1965). The burden is on the plaintiff to affirmatively prove both negligence and causation (except in certain cases which we will discuss below); a mere suspicion of negligence is not enough. Flowerdew, supra; Willis, supra; Hale v. Heninger, 87 Idaho 414, 393 P.2d 718 (1964); Evans v. Bannock County, 59 Idaho 442, 83 P.2d 427 (1938).

As noted above, plaintiff chose to rely on testimony of his family physician, Dr. Haddock, and his second surgeon, Dr. Gresham. Both of these doctors testified (as did other witnesses) that they saw nothing in the records or during their examinations of plaintiff that showed any negligence in surgical procedures. Both testified that Dr. Barnard followed accepted surgical procedures, that plaintiff's continuing problems were not uncommon, and that the results were at least as likely due to further deterioration of plaintiff's original condition as due to surgical error. Plaintiff did not present any evidence of either negligence or causation, instead asking that negligence be inferred from plaintiff's resultant condition. Where the evidence is as consistent with the absence of negligence as it is with the existence of negligence, the case should not to go the jury. Willis, supra; Swanson, supra. Hence, we are not guided to any showing of error in the court's determination to remove from the consideration of the jury the issue of surgical negligence.

On the issue of post-operative care, whether plaintiff should have been diagnosed and treated for infection, the jury found against the plaintiff. The testimony of the doctors was to the effect that there was what they considered a best method of diagnosis and treatment that was not always possible and was not followed here, that plaintiff's symptoms could be consistent with normal reactions to injury and surgery as well as with infection, and that in their opinion there was no negligence. The court let the issue go to the jury on the basis that the jury was at liberty to accept what the doctors related, but reject the medical opinions that Dr. Barnard acted correctly. The jury...