Goffe v. Pharmaseal Laboratories, Inc.
Citation | 568 P.2d 600,90 N.M. 764,1976 NMCA 123 |
Decision Date | 07 December 1976 |
Docket Number | No. 2480,2480 |
Parties | William GOFFE, Plaintiff-Appellant, v. PHARMASEAL LABORATORIES, INC., a California Corporation, Dr. J. Hunt Burress and Presbyterian Hospital Center, Inc., a New Mexico Corporation, Defendants- Appellees. |
Court | Court of Appeals of New Mexico |
Plaintiff appeals the granting of a summary judgment in favor of the defendants.
On August 26, 1971, plaintiff entered the defendant Presbyterian Hospital (Hospital) suffering from an intestinal obstruction. He was treated by defendant Dr. J. Hunt Burress. The treatment consisted of inserting a K-2R Kaslow intestinal tube, manufactured by defendant Pharmaseal Laboratories, Inc. (Laboratory), through his nose, and thence through the stomach into the intestine. To help in inserting the tube into the intestine, it was weighted with a small rubber balloon tied to the end of the tube and containing metallic mercury, also called quicksilver. The tube, balloon and quicksilver were purchased from the Hospital. Dr. Burress put the mercury into the balloon and tied it onto the end of the tube. On the morning of August 30, 1971, the intestinal obstruction having been removed, Dr. Burress started to withdraw the tube. While he was in the process of removing the tube, the balloon containing the mercury broke as the bag started to enter the nasal passage. As a consequence, the plaintiff inhaled some of the mercury into his lungs. Dr. Burress, with the help of some of the hospital staff, turned the plaintiff upside down and pounded him on the back to cause him to cough up the mercury. How much he inhaled is not known and how much stayed in his system is not known. There is nothing in the record to indicate that the mercury being in his system had any adverse effects. The tube and the balloon were disposed of and no one had the opportunity to examine them. On the day following these events the plaintiff suffered a myocardial infarction.
Plaintiff in his complaint alleged that Dr. Burress "did not exercise the degree of care or skill ordinarily exercised by others of his profession in similar treatment in that he removed said tube in a hasty, negligent, and unskilled manner, resulting in the rupture of a bag of mercury . . . ." He further alleged that Dr. Burress directed others to pound him on the back to remove the mercury and this "pounding resulted in a coronary thrombosis with a subsequent myocardial infarction." As to the Laboratory, the plaintiff alleged that the "tube was in a defective condition unreasonably dangerous to a user or patient in that the bag of mercury attached to the tube in the treatment is improperly designed and unsafe to persons undergoing treatment . . . ." Also, that the tube "was not of a merchantable quality nor was it fit for the purpose for which it was intended." That the Laboratory had "breached an implied warranty of merchantibility and fitness . . .." In regard to the Hospital, the plaintiff alleged that Dr. Burress was its agent or employee and that in doing the various things he did he was acting within the scope of his employment.
The plaintiff alleges four points of error. We will discuss together points 1, 3 and 4, which are as follows:
Section 21-1-1(56)(c), N.M.S.A. 1953 (Repl. Vol. 4) provides in pertinent part that: "The (summary) judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Our Supreme Court in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972) adopted the following language from 3 Barron & Holtzoff, Federal Practice and Procedure, § 1234 at 124-126 (rev'd Wright 1958) as the rule to be applied in determining whether a motion for summary judgment should be granted or not:
The Supreme Court went on to say that once the moving party has made a prima facie showing that he is entitled to summary judgment, the burden shifts to the opposing party to show that there is a genuine factual issue. (Emphasis ours.) The rules governing consideration of medical malpractice cases are set forth in Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964)
Furthermore, the medical expert or experts must be qualified to express an opinion concerning the recognized standard of medical practice in the community and an opinion that the defendant departed from that standard or neglected to do something required by the standards. Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973).
At the outset of our discussion, it is well to remind ourselves that a medical malpractice suit is a negligence action. The elements necessary to such a cause of action are:
W. Prosser, Law of Torts, § 30, p. 143 (4th ed. 1971)
Speaking to the question of standard and a departure therefrom, Dr. Burress relies upon the deposition testimony and affidavit of Dr. A. Simms II, a surgeon residing and practicing in Albuquerque. Dr. Simms in his deposition testimony described the procedure for inserting and removing the tube. His affidavit recited in part:
The plaintiff for his part relies upon the affidavit and deposition of Dr. John W. Ormsby, an internist who graduated from Columbia Medical School and practices in the State of Washington. The pertinent parts of the doctor's affidavit are the following:
The record reveals that Dr. Ormsby at his deposition was asked the following questions and gave the following answers among others:
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