Govin v. Hunter, 3049

• Decision Date: 14 September 1962
• Docket Number: No. 3049,3049
• Citation: 374 P.2d 421
• Parties: Lawney Estelle GOVIN and Jerry Francis Govin, Appellants (Plaintiffs below), v. Richard T. HUNTER, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 421

374 P.2d 421

Lawney Estelle GOVIN and Jerry Francis Govin, Appellants (Plaintiffs below), v. Richard T. HUNTER, Appellee (Defendant below).

No. 3049.

Supreme Court of Wyoming.

Sept. 14, 1962.

Ross & Buge, Vincent A. Ross, Cheyenne, for appellants.

Swainson & Swainson, Clarence A. Swainson, Cheyenne, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

The only question presented on appeal in the instant case is whether or not sufficient evidence was offered in the trial below to go the the jury. The case involved a claim on the part of Lawney Estelle Govin and her husband, Jerry Francis Govin, for injury allegedly caused by Dr. Richard T. Hunter, a practicing physician, in a surgical operation performed upon the right leg of Mrs. Govin for correction of a varicose vein condition and the stripping of a vein. At the close of all the testimony on behalf of both sides, the trial court, considering the evidence insufficient to support the asserted claim, granted a directed verdict in favor of the doctor.

Several local physicians, including those called by the plaintiffs, testified without conflict or contradiction that the operation performed by Dr. Hunter improved the patient's condition and rid her of the major varicosity; that the usual and customary operative procedure was undertaken and accomplished by Dr. Hunter; that the job was well done and that Dr. Hunter exercised the degree of care and skill that is ordinarily possessed and exercised by physicians and surgeons in the locality; that the vein in question was removed in its entirety and that the tortuous and twisting course of the vein made six incisions necessary.

Mrs. Govin testified that she had been told by Dr. Hunter that he would strip the vein with one incision behind the knee and one behind the ankle. She claims that the doctor said he would make the incisions and put a stripper down her leg and strip out the vein, after which she would have no more trouble with it. The physicians who testified on the subject all testified that it was impossible to strip this vein with two incisions, and that surgeons cannot tell how many incisions will be required.

Counsel for the Govins seems to recognize that, in order to sustain a claim for damages based upon malpractice or negligence on the part of a physician, the rule in this jurisdiction and in other jurisdictions generally has heretofore been that it is necessary for a plaintiff to prove by the evidence of competent experts that the injury complained of was caused by negligence. Phifer v. Baker, 34 Wyo. 415, 244 P. 637, 649. See also Newman v. Zinn, 3 Cir., 164 F.2d 558, 560; Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791, 794; Simone v. Sabo, 37 Cal.2d 253, 231 P.2d 19, 22; and Di Filippo v. Preston, Del., 173 A.2d 333, 336.

It is recognized that the claim of negligence or malpractice in the case at bar has not been supported by any medical or expert testimony. Hence, there is submitted for our determination the consideration as to whether we are prepared to reverse the rule announced in Phifer v. Baker.

Counsel argues that the question of malpractice should be reviewed by the court 'in the light of modern day standards and practices being conducted by doctors in general.' The contention is made that a more liberal view as to needs and requirements of expert testimony should be adopted by the courts since we are now dealing with a more informed public.

The obvious answer to counsel's argument is that the court has no place to turn for enlightenment on the modern day standards and practices being conducted by doctors in general, except to the experts themselves who are both trained and experienced in the field or profession involved. We have no reason to believe that only doctors who are old and behind the times testified in this case. To the contrary, it appears quite evident to us that the physicians who testified were expressing their opinions in the light of modern day standards and practices.

This court announced in the Phifer case that a jury, in considering whether a defendant-physician exercised ordinary care and skill, may not set up a standard of its own but must be guided in that regard solely by the testimony of physicians. Although asking us to discard this rule, the complainants in this case fail to suggest a substitute standard for ordinary care which may be followed by the jury. We do not understand how a jury could possibly find the existence of negligence in a malpractice case without a standard to go by.

It is true that Mrs. Govin herself testified that Dr. Hunter told her she would have two incisions only and that she would have no more trouble with the vein. Dr. Hunter, testifying in his own behalf, denied these statements. No doubt plaintiff's testimony would nevertheless have been sufficient to go to the jury if it had been coupled with substantial evidence to show that plaintiff was induced by the alleged statements to have the operation.

Actually however, plaintiff's own evidence established the opposite. It showed that the operation was not induced by anything Dr. Hunter said or failed to say. His explanations or lack of explanations were therefore immaterial. The mere fact that there are conflicts in the testimony does not render the direction of a verdict erroneous, when it appears that the conflicts are immaterial. Beman v. Stembridge, 211 Ga. 274, 85 S.E.2d 434, 439.

The further testimony of plaintiff, corroborated by other evidence in the case, established without contradiction that Mrs. Govin had had varicosity since the age of fifteen; that she had had surgery about ten years previous on the right side for vein ligation; that for a period of four years she had had increasing difficulty with veins in her right calf, these being enlarged and painful; and that she consulted Dr. Schleyer, a physician and surgeon, seeking some care for the right lower leg and to see what could be done about her varicose veins in the right calf.

Dr. Schleyer advised surgery and described the method of...