Foreman v. Ver Brugghen

• Decision Date: 09 February 1965
• Docket Number: No. 4800,4800
• Citation: 398 P.2d 993,81 Nev. 86
• Parties: Carolyn FOREMAN, Appellant, v. Adrien VER BRUGGHEN, M.D., Respondent.
• Court: Nevada Supreme Court

Page 993

398 P.2d 993

81 Nev. 86

Carolyn FOREMAN, Appellant, v. Adrien VER BRUGGHEN, M.D., Respondent.

No. 4800.

Supreme Court of Nevada.

Feb. 9, 1965.

Keith C. Hayes, Las Vegas, for appellant.

Jones, Wiener & Jones, Las Vegas, for respondent.

BADT, Justice:

This appeal from a judgment on a directed verdict for the defendant physician in a malpractice suit seeks to have us overrule our former holding in support of the 'locality rule' in Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670. This we decline to do for the reasons stated in that case. The trial court's direction for a verdict for defendant was based on that decision. In this there was no error. NRCP 50.

It is true that the first concurring opinion in that case stated that it 'should not be taken as precluding us, in a proper case in the future, from re-examining said rule and, if necessary for the just determination of any specific case, re-considering and possibly departing from its general application.' It is also true that the second concurring opinion was based 'not by establishing as a law of this state the 'locality rule,' but on the basis that the qualification of a medical expert to testify * * * is a question for the sound discretion of a trial court * * * and * * * will not be disturbed on appeal unless a clear abuse of discretion is shown.' In any event, we hold that in the absence of any evidence that the defendant's treatment was not in accordance with the standard of practice in the Las Vegas area, the granting of defendant's motion for a directed verdict was without error.

Appellant assigns error in the court's rejection of her offer in evidence of a group of medical texts under NRS 51.040 reading as follows:

'1. A statement of fact or opinion on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in the discretion of the court, and if the court finds that it is relevant and that the writer of such statement is recognized in his profession or calling as as an expert on the subject, be admissible in actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, osteopathic physicians or surgeons, chiropractors, chiropodists, naturopathic physicians, hospitals and sanitaria, as evidence tending to prove the fact or as opinion evidence.' ¹

Dr. Drury was loth to testify that any of the texts offered in evidence was a 'standard' text. The closest he would come was 'fairly standard.' He did not testify that any of the authors was an expert on the subject.

Respondent's objections to receiving the texts in evidence were based on two grounds. (1) He asserted that to admit them would be to 'fly in the face of' the rule laid down in Lockart v. Maclean, supra; that under Lockart v. Maclean an expert witness could not testify unless he were familiar with the standard of practice in the locality, and, even if he did qualify in such respect, was subject to cross-examination; that an expert familiar simply with standards throughout the United States was not competent to testify; that to accept the offered texts in evidence would permit the testimony of persons who not only were not familiar with the standards of practice in the area but were not even sworn and were not subject to cross-examination. (2) The second ground of objection was that these texts dealt with herniated discs, which indicated 'extrusions' but that in Dr. Drury's testimony nothing was said about extrusions but that the witness had found a 'degenerated' disc. This objection amounts to the objection that the material offered was not relevant.

While considerable doubt is thrown upon the question whether any of the writers of the respective texts qualified under the statute as being 'recognized in his profession or calling as an expert on the subject,' this objection was not raised, and counsel for respondent specifically waived such objection. We find no merit to the first ground of objection. NRS 51.040 was not in issue in Lockart v. Maclean. No medical texts were even offered in evidence in that case. It is noted that under the statute the material is competent, in the discretion of the court, if the court finds that the material is relevant and the writer of the statement contained in the treatise is recognized in his profession as an expert. Therefore, the exercise of the court's...