Faris v. Doctors Hospital, Inc.

• Decision Date: 26 September 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 501 P.2d 440,18 Ariz.App. 264
• Parties: Margaret FARIS, Appellant, v. DOCTORS HOSPITAL, INC., et al., Appellees. 1660.
• Court: Arizona Court of Appeals

Page 440

501 P.2d 440

18 Ariz.App. 264

Margaret FARIS, Appellant, v. DOCTORS HOSPITAL, INC., et al., Appellees.

No. 1 CA-CIV 1660.

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

Sept. 26, 1972.

Rehearing Denied Oct. 26, 1972.

Review Denied Nov. 28, 1972.

Duecy, Moore, Petsch & Robinson, Scottsdale by J. William Moore, Phoenix, and Lewis B. Moore, J., Scottsdale, for appellant.

Jack M. Anderson, Phoenix, for appellee Doctors Hospital, Inc.

Snell & Wilmer by Loren W. Counce, Jr., Phoenix, for appellee Nevins, M.D.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Richard J. Woods, Phoenix, for appellee Hayward-Butt, M.D.

EUBANK, Judge.

This appeal involves the application of the doctrine of Res ipsa loquitur in a medical malpractice case brought by the appellant (plaintiff), Margaret Faris, against the appellees (defendants), Charles R. Nevins, M.D., John T. Peter Hayward-Butt, M.D., and Doctors Hospital. The trial court granted each defendant a separate summary judgment, from which the appellant appealed.

Appellant questions the correctness of granting each summary judgment, and contends, in essence, that where she relies on the doctrine of Res ipsa loquitur, in the pretrial stage of the proceedings, the inference of negligence raised thereby is sufficient to withstand a motion for summary judgment in that the doctrine itself raises a genuine issue as to a material fact precluding summary judgment and requires that the issue of malpractice proceed to trial. Appellees contend that their summary judgments were proper because of the appellant's failure to produce any expert testimony whatsoever that would support the doctrine of Res ipsa loquitur in a medical malpractice claim; and consequently they argue that there was no genuine issue as to a material fact regarding the alleged neck injury, in order to go to trial on the issue of malpractice. Countering this, appellant admits the lack of expert testimony, but contends that such evidence is unnecessary because of an admission against interest made by Dr. Nevins and because of her raising the doctrine of Res ipsa loquitur.

The facts are as follows: The appellant, who is a registered nurse, was a patient of the appellee Dr. Nevins. On June 24, 1968, she was admitted to Doctors Hospital for a hysterectomy and the repair of a ventral hernia. This surgery was performed by Dr. Nevins on the following day. The appellant's recovery was good until June 30, when, according to the hospital record, bleeding was discovered emanating from the lower incision following a coughing spell. On July 1, appellant complained of pain in the pelvic region and following an examination, Dr. Nevins discovered an infection which required drainage. On July 3, Dr. Nevins, assisted by appellee Hayward-Butt as anesthesiologist, again operated on the appellant at Doctors Hospital, draining the abscess. The operation was successful, but appellant claims that immediately upon regaining consciousness, she began to experience pain in her cervical spine (neck) area which radiated into her shoulder and arms. Appellant testified she had not experienced this pain prior to the July 3 operation. The progress records of the doctors, nurses and hospital reveal no complaint of neck pain by the appellant until July 6, three days after the operation. Dr. Nevins testified by deposition that following the operation on July 3, he left town leaving the appellant under the care of Dr. Dagres. When Dr. Nevins returned to the hospital on July 7, the appellant complained to him of the neck pain and, in her deposition, reports Dr. Nevins as stating to her:

'. . . Margaret, I am almost sure this accident didn't happen while you were being moved from side to side. I am inclined to believe that your head and neck were hyperextended.'

When asked about making this statement, Dr. Nevins testified that he didn't remember making it. Dr. Nevins testified that on learning of the neck problem on July 7, he immediately referred the appellant to Dr. William V. Ergenbright, an orthopedic surgeon. Dr. Ergenbright had performed a laminectomy on the appellant in 1954 removing a ruptured disk between L--5 and S--1 on the left side, which was caused by 'disk degeneration'. The appellant had been Dr. Ergenbright's patient from then through 1968 with complaints relating to degenerative disk disease primarily in the lower back. In 1962, his office noted neck complaints by appellant which were diagnosed as a degenerative change in the cervical spine level. Dr. Ergenbright examined the appellant on July 8, 1968, and determined by X-rays that a thinning of the disk space between C--5 and C--6 vertebrae had occurred. He testified that the significance of this change was as follows:

'It would mean that the disk material in that level had degenerated, and that the space, the degeneration of the intervertebral disk material allows the cervical vertebra to come closer together.'

He further testified that the cause of the thinning disk space was related to the aging process and that he did not know what the actual cause of the appellant's complaint was but that such complaints were not necessarily related to trauma but were related to the degenerative process itself.

Dr. Harry A. Danielson, a neurological surgeon who performed the operation on appellant's neck on July 29, and confirmed the diagnosis of a herniation of disk material between C--5 and C--6 vertebrae, testified by deposition that appellant's cervical spine was undergoing 'advanced degenerative changes when the foramina became narrowed' and that coughing, sneezing or merely awakening in the morning could cause appellant's disk herniation.

The appellee, Dr. John Hayward-Butt, testified by deposition that he reviewed the file and consulted with specialists and that in his opinion:

'. . . A disk can become extruded from no force whatever, from the merest apparent triviality.

To repeal my quips of sneezing, coughing and even rolling over in bed. There is no necessity to have an external force to protrude a disk.'

He also testified that he did not hyperextend the appellant's neck for the purpose of administering anesthesia and that her condition would not have resulted from such a procedure in any case.

Dr. Charles Nevins testified that he was not aware that appellant's neck was hyperextended during the July 3 operation.

In reviewing a summary judgment on appeal, we must, of course, view the evidence in a light most favorable to the appellant and give her the benefit of all inferences reasonably drawn therefrom. Livingston v. Citizen's Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971). However, first we must determine whether under the facts of this case the doctrine of Res ipsa loquitur is applicable, and if not, whether the inference requested by the appellant to be drawn from Dr. Nevins' purported statement to her that, 'I am inclined to believe that your head and neck were hyperextended.', is sufficient to establish that her neck was hyperextended, and whether this satisfies the need for expert testimony on the standard of care.

An excellent summary of the doctrine of Res ipsa loquitur is set out in O'Donnell v. Maves, 103 Ariz. 28, 436 P.2d 577 (1968), where our Supreme Court, in essence, said that the doctrine is essentially a rule of circumstantial evidence where a jury in a negligence case is permitted but not required to draw an inference of negligence from the happening of an accident of a kind which experience has shown does not normally occur if due care is exercised. See also, M. Udall, Arizona Law of Evidence, § 195, p. 436 (1960). The Court in O'Donnell, supra, also restated the conditions necessary for the application of the doctrine as follows:

"(1) (T)he accident must be of a kind which ordinarily does not occur in the absence of some one's negligence;

(2) it must be caused by an agency or instrumentality within the exclusive control of defendant;

(3) it must not have been due to any voluntary action on the part of the plaintiff;

(4) plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury . . ." (original emphasis) (103 Ariz. at 30, 436 P.2d at 579).

The first question is whether the doctrine of Res ipsa loquitur is even applicable to a medical malpractice case brought against the doctors or the hospital. We answer this question in the affirmative.

The relationship between Res ipsa loquitur and medical malpractice is placed in historical context in an excellent opinion by the California Court of Appeals in Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957), where the Court said:

'The application of the doctrine of res ipsa loquitur in malpractice cases is a development of comparatively recent years. Before that time, the facts that medicine is not an exact science, that the human body is not susceptible to precise understanding, that the care required of a medical man is the degree of learning and skill common in his prefession or locality, and that even with the greatest of care untoward results do occur in surgical and medical procedures, were considered paramount in determining whether the medical man in a given circumstance had been negligent. But gradually the courts awork to the so-called 'conspiracy of silence.' No matter how lacking in skill or how negligent the medical man might be, it was almost impossible to get other medical men to testify adversely to him in litigation based on his alleged negligence. Not only would the guilty person thereby escape from civil liability for the wrong he had done, but his professional colleagues would take no steps to insure that the same results would not again occur at his hands. This fact, plus the fact that usually the patient is by reason of anesthesia or lack of medical knowledge in no position to know what occurred that resulted...