Evans v. Bernhard

• Decision Date: 10 April 1975
• Docket Number: CA-CIV,No. 1,1
• Parties: Sharon J. EVANS, a married woman dealing with her sole and separate property, and Josephine C. Fenn, a single woman, Appellants, v. Dr. J. J. BERNHARD and Physicians & Surgeons Hospital, Inc., an Arizona Corporation, Appellees. 2388.
• Court: Arizona Court of Appeals

Page 721

533 P.2d 721

23 Ariz.App. 413

Sharon J. EVANS, a married woman dealing with her sole and separate property, and Josephine C. Fenn, a single woman, Appellants, v. Dr. J. J. BERNHARD and Physicians & Surgeons Hospital, Inc., an Arizona Corporation, Appellees.

No. 1 CA-CIV 2388.

Court of Appeals of Arizona, Division 1, Department B.

April 10, 1975.

Shimmel, Hill, Bishop & Gruender, P.C., by Richard B. Johnson, Phoenix, for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C., by Ralph E. Hunsaker, Phoenix, for appellees.

OPINION

JACOBSON, Presiding Judge.

This appeal raises the question of the liability of a general medical practitioner for his own alleged negligence as well as for the alleged negligence of a medical specialist in operating on a patient and during subsequent post-operative care. It also raises the propriety of the granting of summary judgment for the hospital where the surgery was performed.

The appellant, Sharon J. Evans, was injured in a motorcycle mishap on June 5, 1966. An ambulance took her to Scottsdale Physicians & Surgeons Hospital. Her family physician, appellee Dr. J. J. Bernhard, was immediately called and arrived while she was still in the emergency room. Dr. Bernhard ordered that leg and skull x-rays be taken.

As the patient had fractured the neck of her right femur, her doctor, an osteopathic physician and surgeon with limited surgical experience, called in Dr. Fridena, an orthopedic specialist. Although Dr. Bernhard had never before been associated with Dr. Fridena, he was called because he was the only orthopedic consultant at this hospital and the only one with privileges there. On June 16, 1966, Dr. Fridena, with Dr. Bernhard assisting, attempted to surgically repair the fractured femur. The post-operative leg follow-up was undertaken by Dr Fridena; Dr. Bernhard continued treating the patient for the effects of the skull injury sustained in the accident as well as giving her general medical care. In September of 1966 he noted that her right leg was 1 1/2 inches shorter than the left. No malpractice is asserted by reason of this initial surgery.

In December of 1966, Dr. Bernhard learned from the patient that Dr. Fridena contemplated additional leg surgery. Several days before this operation was to take place, Dr. Fridena contacted Dr. Bernhard and asked him to assist in the surgery. Dr. Fridena stated that he planned to do corrective surgery but did not go into any detail; Dr. Bernhard did not demand specificity as he assumed that Dr. Fridena intended to remove the pin from the patient's leg as it was causing her pain.

Dr. Bernard visited the patient in her hospital room at Phoenix Community Hospital (aka Physicians & Surgeons Hospital, Inc.) but made no pre-operative examination as she was admitted as Dr. Fridena's patient. On the morning of this surgery, Dr. Fridena advised Dr. Bernhard that the surgery he contemplated was complicated and designed to lengthen the patient's leg; he did not indicate that any risk was involved.

The surgery was performed with Dr. Bernhard assisting according to Dr. Fridena's instructions. Although Dr. Bernhard was unfamiliar with the technique used, he felt the surgery proceeded without complications. The technique, in fact, involved the bisecting of the middle of the right femur and the inserting of a bone graft in an attempt to lengthen the leg. However rather than lengthening the leg, it was shortened so that it was now 3 shorter than the left. Dr. Fridena supervised the patient's recovery following this second operation.

A medical malpractice suit was filed by the patient against the estate of Dr. D. T. Fridena, Jr., Dr. J. J. Bernhard, and Physicians & Surgeons Hospital, Inc. to recover damages for the injuries she sustained as a result of the alleged negligent operative and post-operative care given her. Dr. Bernhard and the hospital filed a joint motion for summary judgment, which the court granted. This appeal followed. The Estate of Dr. Fridena is not a party to this appeal.

The first issue to be decided is the propriety of the court's granting summary judgment in favor of Dr. Bernhard both as to his alleged independent liability and as to his joint liability with Dr. Fridena. On review of the granting of a motion for summary judgment, this court must view the facts and the inferences arising from these in the light most favorable to the party against whom the motion was granted. Tessitore v. McGilvra, 105 Ariz. 91, 92, 459 P.2d 716, 717 (1969), supplemented on rehearing, 105 Ariz. 198, 461 P.2d 675 (1970). As the plaintiffs cannot rest on the mere allegations of their complaint when faced with a motion for summary judgment, Abernethy v. Smith, 17 Ariz.App. 363, 370, 498 P.2d 475, 182 (1972), the record in this case which has been brought to the court's attention must be examined to determine whether there is any disputed issue of material fact. On the issue of the alleged malpractice of Dr. Bernhard, this court has examined the complaint, answers, Dr. Bernhard's deposition, and Dr. Bernhard's answers to interrogatories. We were, however, unable to consider the plaintiff's answers to interrogatories as they were not included in the record on appeal.

The plaintiff's threshold obligation in the proof of medical malpractice involves two evidentiary steps. First, evidence must be presented to establish the applicable standard of medical practice in the particular type of case involved and second, it must also be shown that the doctor negligently departed from this recognized standard in his treatment of the plaintiff. In order to make this threshold breach of duty actionable, it must then be shown that the breach of duty was the legal cause of the plaintiff's injuries. Stallcupv. Coscarart, 79 Ariz. 42, 46, 282 P.2d 791, 793 (1955). The medical standard of care must be established by expert medical testimony unless the conduct complained of is readily ascertainable by a layman. Kalar v. MacCollum, 17 Ariz.App. 176, 496 P.2d 602 (1972). However, third party expert testimony is not always necessary as this standard can be established by the defendant doctor's own testimony. Vigil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967).

The asserted independent negligence of Dr. Bernhard stems from his assisting in the second operation despite his limited experience in the surgical field as well as in orthopedics; his failure in ascertaining the type of surgery contemplated by Dr. Fridena; in failing to stop the surgery once he realized what was contemplated and that he was unable to comprehend the technique involved; plus his failure to make a pre-operative examination of the patient. The appellant asserts that this negligence was so grossly apparent that no expert testimony as to the standard of medical practice in the community was necessary or that, in the alternative, Dr. Bernhard's own testimony established the applicable standard.

This court cannot hold, as a matter of law, that the applicable standard of care in this case or its probable violation is within the common knowledge of a layman so as to dispense with medical expert testimony. Tessitore v. McGilvra, 105 Ariz. 91, 93, 459 P.2d 716, 718 (1969). Since no independent expert medical...