Crouch v. Most
| Decision Date | 02 October 1967 |
| Docket Number | No. 8191,8191 |
| Citation | 78 N.M. 406,432 P.2d 250,1967 NMSC 216 |
| Parties | Charles CROUCH, Plaintiff-Appellant, v. John A. MOST, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Plaintiff-appellant Charles Crouch filed a complaint alleging that defendant-appellee John A. Most, as a physician, negligently treated appellant for a snakebite, resulting in the amputation of the index and middle fingers of appellant's left hand. The jury returned a verdict for appellee and appellant appeals.
On August 11, 1963, appellant, an amateur snake handler, received a rattlesnake bite on the index and middle fingers of his left hand while working at a reptile garden some fifteen or twenty miles from Carlsbad, New Mexico. Suction cups and a tourniquet were immediately applied and appellant was taken to a hospital in Carlsbad in about fifteen minutes. Appellee was called and arrived within fifteen to twenty minutes. Appellee treated the snakebitten fingers by injecting 'Antivenin' into the base of the fingers bitten by the snake and into the left deltoid area. The hand was packed in ice and appellant was admitted to the hospital for forty-eight hours, then dismissed with instructions that the hand be kept in ice. By August 21, 1963, appellant's fingers, hand and arm were swollen, discolored and odorous with dry gangrene. On this date, Dr. Bronnenberg took over the care of appellant because appellant and his parents had become concerned over his condition. Dr. Bronnenberg discontinued the ice treatment, put the hand on a heat pad, and commenced antibiotic shots for the gangrene and infection. The fingers, hand and arm began clearing up but the ends of the two fingers were dead. Dr. Pate, a surgeon, amputated portions of the two fingers on September 9, 1963.
'Antivenin' is a trade name for 'Polyvalent Antisnakebite Serum' manufactured by Wyeth Laboratories and distributed in interstate commerce in 'kit' form. The kit contains all that is needed to dissolve and inject the serum. Included, as a part of the kit, is an instruction sheet with detailed instructions making it possible for the kit to be used by the layman in the treatment of snakebites. One such instruction is: 'Do not inject the serum into a finger or toe.' The 'Antivenin' kit, without the instruction sheet, was admitted in evidence. The instruction sheet was offered as a separate exhibit. Objection was made to this exhibit and sustained by the trial court.
The record also shows, by expert testimony, that rattlesnake bites in extremities always present a good chance of some tissue destruction, whatever the treatment; that the most probable cause of the death of the tissue in the two finger tips was the venom of the rattlesnake; that there are wide variations in accepted methods of treatment of rattlesnake bite, which is subject of continuing debate and change in the United States; and that the method of treatment chosen and used by appellee was an acceptable and accepted method of treatment. Appellant's expert witness could not say it was probable that the gangrene was caused by the treatment.
Appellant's first contention is that the instruction sheet contained in the 'Antivenin' kit was admissible to establish a standard of care, and that a failure to observe the warnings contained in the instructions would amount to negligence as a matter of law.
We do not agree. Appellant apparently wanted to prove by this exhibit that the drug manufacturer stated that 'Antivenin' should not be injected into a finger. The record reveals testimony on this point. Appellee testified he did not deem the instructions to be authoritative, but admitted the manufacturer of the drug advised against injecting the 'Antivenin' into the finger. Dr. Evetts, appellant's expert witness, testified he personally followed the manufacturer's instruction sheet and that the directions for use stated the serum should not be injected into fingers or toes. Thus, such proof got into the record so that whether or not it was error to exclude the instruction sheet is immaterial, since it was harmless error. Johnson v. Nickels, 66 N.M. 181, 344 P.2d 697.
Appellant's second contention is that the trial court erred in refusing the following requested instructions of appellant:
'8. It is the duty of a physician or surgeon in diagnosing and treating a case to use due diligence in obtaining all available facts and collecting data essential to a proper diagnosis and proper treatment. If in this case you find from the evidence that the defendant, John Most, failed to use due diligence in availing himself of or using the technical information provided by the drug manufacturer for the administration of antivenin, then you shall find the defendant liable for negligence, and if such negligence proximately caused, contributed to, or aggravated the condition requiring amputation of the fingers of the plaintiff then you shall find in favor of the plaintiff and against the defendant.
'14. You are instructed that the Court takes judicial notice of the laws of the State of New Mexico and in this connection the laws of the State of New Mexico provide that a drug shall be deemed to be misbranded unless it's labeling bears adequate directions for use and such adequate warnings against unsafe dosage or methods or duration of administration or application in such manner and form as are necessary for the protection of users.
'17. You are instructed that an exception to the rule that a physician's negligence must be based on expert testimony exists where the matters of proof are nontechnical, or involve matter of which an ordinary person would be expected to have knowledge, or whether the evidence so obviously demonstrates lack of skill or one of care as to render expert testimony unnecessary.
If you find that the defendant, John Most failed to observe and comply with warnings against the injection of antivenin into the fingers of the plaintiff, Charles Crouch, the Court takes judicial notice of the fact that such directions for use are packaged with each antivenin kit and are clearly expressed in the english language and thereby involves a matter of common knowledge.'
The trial court did not err in failing to give the requested instructions because they are not a correct statement of the law. The directions in the brochure are, at best, only proof of a proper method of use. Julien v. Barker, 75 Idaho 413, 272 P.2d 718; Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170. LikewiseThere is no basis for applying a rule of res ipsa loquitur, which the instructions approximate. Compare, Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269; Renrick v. City of Newark, 74 N.J.Super. 200, 181 A.2d 25.
Under point III, appellant contends that the trial court erred in admitting hearsay testimony. One of the issues presented during the trial of the case concerned the use of cryotherapy, the packing of the hand in ice, as a form of treatment by appellee for the period of time that he used it. Appellant, at the trial, contended that the use of cryotherapy for such an extended period of time was improper treatment and negligence on the part of appellee, and especially so in view of the manner and circumstances of the use of cryotherapy.
Appellee supported his treatment and asserted that appellant did not keep his hand in the ice as prescribed by him. Appellant, together with his father, testified that appellant did follow the doctor's instructions as to keeping his hand in the ice. In support of his contention, appellee called Mrs. Kamoss, a nurse, who testified:
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