Demers v. Gerety, 1098

CourtCourt of Appeals of New Mexico
Citation1973 NMCA 134,85 N.M. 641,515 P.2d 645
Docket NumberNo. 1098,1098
PartiesHenry C. DEMERS, Plaintiff-Appellee Cross-Appellant, v. Edward J. GERETY, Defendant-Appellant Cross-Appellee.
Decision Date19 September 1973
Bruce D. Hall, Stuart S. Keown, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellant and cross-appellee


After consideration of defendant's motion for rehearing, the original opinion is withdrawn and the following opinion is substituted.

From an adverse judgment in a medical malpractice case, entered pursuant to jury verdict, defendant appeals. The appeal raises three issues: (1) whether a verdict should have been directed or judgment n.o.v. entered; (2) whether certain instructions were correct; (3) whether the court erred in permitting a certain hypothetical question to be asked of an expert witness.

We affirm.

At the close of plaintiff's case and at the close of defendant's case, defendant moved for a directed verdict on the grounds of lack of substantial evidence to submit the issues of medical malpractice, lack of consent to perform surgery, and lack of informed consent to the jury. Both motions were denied and the case was submitted to the jury on the following unobjected to instruction:

'The plaintiff claims that he sustained damages and that the proximate cause thereof was one or more of the following claimed acts of malpractice:

'1. The defendant proceeded to perform an operation upon him and in so doing failed to possess and apply the knowledge and use the skill and care which would be used by reasonably well qualified specialists in the same field practicing under similar circumstances.

'2. The defendant proceeded to perform an operation upon the plaintiff without first obtaining a legal consent therefor.

'3. The defendant proceeded to perform an operation upon the plaintiff which was different from any operation authorized by the plaintiff.

'The plaintiff has the burden of proving that he sustained damage and that one or more of the claimed acts was the proximate cause thereof.

'The defendant denies the plaintiff's claims.

'If you find that plaintiff has proved those claims required of him, then your verdict should be for the plaintiff.

'If on the other hand, you find that any one of the claims required to be proved by plaintiff has not been proved, then your verdict should be for the defendant.'

The foregoing instruction is in the almost identical form as the instruction requested by defendant. No special interrogatories were requested. The jury returned a general verdict in favor of plaintiff. Subsequently, defendant moved for judgment n.o.v. or in the alternative a new trial, or in the alternative a remittitur. The trial court denied the motion.

For the purpose of this opinion we assume that the trial court was in error in not granting defendant's motion for a directed verdict on the theories of medical malpractice and lack of informed consent. See Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961) and its progeny. We are, however, faced with defendant requesting an instruction which submitted the case to the jury on the alternative theory that 'one or more of the claimed acts or omissions was the proximate cause thereof.' This requested instruction was totally inconsistent with defendant's motion for a directed verdict. Compare Platero v. Jones, 83 N.M. 261, 490 P.2d 1234 (Ct.App.1971).

Defendant's argument is that we must review the record as of the time of ruling on the directed verdict. However, this is not the rule in New Mexico. Our Supreme Court in Griego v. Conwell, 54 N.M. 287, 222 P.2d 606 (1950), in a similar case regarding the denial of motions for a directed verdict, stated to the effect that an unobjected to instruction becomes the law of the case on appeal. Implicit in Griego is that the court will not go behind the law of the case instruction. Accordingly, we need only determined whether there was evidence to support any of plaintiff's theories. See also Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276 (1933).

We have reviewed the record and find that plaintiff's theory of lack of consent to surgery is supported by substantial evidence.

In the following review of the evidence all presumptions and inferences are in favor of the verdict, and all inferences or evidence to the contrary are disregarded. As has frequently been stated it is for the jury and not the appellate court to weigh testimony, determine the credibility of witnesses, reconcile inconsistent or contradictory statements of witnesses and say where the truth lies. Cooper v. Burrows, 83 N.M. 555, 494 P.2d 968 (1972); Durrett v. Petritsis, 82 N.M. 1, 474 P.2d 487 (1970).

In 1963 plaintiff was operated on in Boston for an ileostomy and colectomy. An ileostomy is the creation of an outlet for the small intestine of ileum through the abdominal wall. A colectomy is an excision of all or part of the large bowel or colon. Plaintiff's ileostomy functioned properly after this surgery.

Plaintiff moved to Albuquerque in 1965 and first consulted the defendant, a general surgeon, on October 30, 1967. At that time plaintiff was 40 years of age and had a sixth grade education. Plaintiff's native language was French, and he had some difficulty with English.

Plaintiff consulted the defendant because of a lump located some distance from the ileostomy site. Defendant diagnosed the lump as a hernia. During the examination plaintiff stated that if repair of the hernia in any way involved surgery on the ileostomy that he would return to Boston for the operation. Defendant agreed not to touch the ileostomy.

Plaintiff entered the hospital at approximately 2:00 p.m. on November 12, 1967. On admission plaintiff signed an 'Authority to Operate' which described the operation to be performed as '* * * repair of ventral hernia.'

Sometime subsequent to admission a second 'Authority to Operate' was obtained. This document bears two signatures by plaintiff and describes the operation to be performed as 'Repair Ventral Hernia & revision of ileostomy and repair of hydrocele.' Plaintiff does not specifically recall signing this authority to operate. He testified that after having been given a sleeping medication, later identified as Nembutal, he was awakened by a nurse. The nurse said that something had been forgotten and had to be completed. The nurse did not turn the lights on and the plaintiff could not see. She held her finger where the plaintiff was to sign, and he did so. There is an inference that what was signed was the second authority to operate. There was medical testimony that Nembutal has a '* * * hypnotic effect in some forms of use, in that there will be the capability of introducing a state of mind that is not fully aware of the situation.' The day after he was admitted plaintiff was taken to surgery. After he was anesthetized defendant proceeded to perform an examination which could not be performed while plaintiff was conscious. The examination consisted of the insertion of defendant's gloved finger into plaintiff's ileostomy in a manner and to an extent not possible while plaintiff was conscious. It was during this examination and prior to the making of any incisions that defendant discovered that plaintiff's hernia protruded from the same opening in the abdominal wall as did the ileostomy. It was at this point that defendant definitely concluded that repair of plaintiff's hernia would necessarily require relocation or revision of his ileostomy. Defendant proceeded to repair the hernia, revise the ileostomy and repair the hydrocele.

Subsequent to surgery plaintiff developed complications which required surgery on two subsequent occasions and a long course of treatment. Among other treatments, plaintiff's ileostomy had to be revised again to a location which is inconvenient.

Defendant's first point on appeal argues that it was error for the trial court to refuse to direct a verdict or grant judgment n.o.v.

The rule applicable in consideration of a motion for directed verdict is that the trial court must view the evidence in the light most favorable to the party resisting the motion, indulge every reasonable inference in support of the party resisting, ignore conflicts in evidence unfavorable to him and not grant the motion if reasonable minds might differ on the conclusion to be reached on the evidence or permissible inferences. Archuleta v. Johnston, 83 N.M. 380, 492 P.2d 997 (1971). In considering a motion for judgment n.o.v. the rule is that the motion is to be granted only when there is neither evidence nor inference from which the jury could have arrived at its verdict. Archuleta v. Johnston, supra.

In support of his argument the defendant cites the parol evidence rule. Defendant would have us hold that plaintiff is precluded by the parol evidence rule from attempting to show that he did not in fact consent to the revision of his ileostomy by signing the second authority to operate.

Further, defendant cites the case of Grannum v. Berard, 70 Wash.2d 304, 422 P.2d 812 (1967), for the proposition that the law presumes competence in one consenting to an operation and that a patient seeking to avoid the effect of this presumption must present clear and convincing evidence of his lack of capacity to consent.

We begin our discussion by noting that the physician-patient relationship is a fiduciary one. Moore v. Webb, 345 S.W.2d 239 (Mo.App.1961). See Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962). The physician is required to exercise the utmost good faith toward the patient throughout the relationship. We do not inquire whether the physician has gained an advantage in performing surgery or whether his conduct was fraudulent. We only inquire whether the physician violated his fiduciary duty. If he did, any contractual...

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    ...... It thus became the law of the case. Demers v. Gerety, 85 N.M. 641, 515 P.2d 645 (Ct.App.1973); rev. on other grounds, 86 N.M. 141, 520 P.2d ......
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