Hale v. Heninger

• Decision Date: 10 July 1964
• Docket Number: No. 9295,9295
• Citation: 393 P.2d 718,87 Idaho 414
• Parties: Calvin L. HALE, Plaintiff-Appellant, v. Maurice K. HENINGER, C. D. Packer, M. P. Packer, and Bingham County, a Municipal corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 718

393 P.2d 718

87 Idaho 414

Calvin L. HALE, Plaintiff-Appellant, v. Maurice K. HENINGER, C. D. Packer, M. P. Packer, and Bingham County, a Municipal corporation, Defendants-Respondents.

No. 9295.

Supreme Court of Idaho.

July 10, 1964.

Gee, Hargraves & Armstrong, Pocatello, for appellant.

Merrill & Merrill, Pocatello, Holden, Holden & Kidwell, Sharp & Anderson, Idaho Falls, for respondents.

SMITH, Justice.

Appellant (plaintiff) brought this action seeking to recover damages by reason of personal injuries by him suffered allegedly growing out of negligent operative procedures and treatment accorded him by respondents (defendants). The action is grounded upon alleged malpractice and negligence of respondent, Dr. Maurice K. Heninger, in the performance of a myelogram, and of respondents, Drs. C. D. and M. P. Packer, in the performance of a laminectomy and fusion operation, and upon the alleged negligent pre-operative and postoperative treatment and care accorded appellant by respondent physicians, and by Bingham County as owner and operator of Bingham Memorial Hospital.

Respondents by their answers admitted the services rendered but denied any negligence in the premises. Respondent physicians affirmatively alleged that in the performance of the services they observed reasonable care and diligence, and exercised the degree of skill and learning possessed and exercised by members of the medical profession in similar localities, and that each acted in accordance with his best judgment. Respondent County alleged that as to its medical facilities offered appellant, it possessed and exercised the degree of care exercised by similar institutions in like localities. All of the respondents then alleged that there was no causal connection or proximate cause between the acts and services which they performed on behalf of appellant and his alleged injury or paralysis.

At the conclusion of appellant's case in chief before a jury, the trial court granted respondents' motions for directed verdict on the ground 'that there is not in this case legal evidence which supports the action or which will support any verdict for the Plaintiff [appellant] and against the Defendants [respondents].'

Appellant's myriad assignments on appeal, some without citation of authority or argument (see Supreme Court Rule 41), may be reduced to three principal issues: (1) whether the trial court ruled correctly on the evidence; (2) whether the doctrine of res ipsa loquitur was applicable under the facts of the case; and (3) whether the trial court properly granted a directed verdict for respondents. It is first necessary to review the facts.

During the spring of 1955, appellant, suffering from severe pain in his lower back, consulted respondent M. P. Packer, a general medical practitioner in Blackfoot, Idaho. Dr. Packer treated appellant during the entire summer and fall of 1955, during which time appellant experienced considerable pain in his back and inability, at times, to walk in an upright position. When conservative treatment failed to alleviate the condition, Dr. Packer suggested that appellant submit to a myelogram in order to determine if intervertebral disc surgery was necessary-Appellant consented thereto and the myelogram was performed December 14, 1955, by respondent Maurice K. Heninger, a radiologist, with the aid of a Mr. Staley, a laboratory technician employed by respondent, Bingham County, at Bingham Memorial Hospital.

The myelogram findings, supported by x-ray photographs, showed a defect in the exact area where the physicians believed that a herniated disc existed, considered in the light of appellant's medical history. With appellant's verbal consent, Dr. C. D. Packer, a general surgeon, assisted by Dr. M. P. Packer, performed a laminectomy and fusion upon appellant on December 15, 1955. Following the operation and during the afternoon of December 15th, appellant discovered that he could not move any part of his body below the breast line. Several hours after being summoned by a nurse at the hospital, Dr. C. D. Packer examined appellant and could not obtain any response to pinpricks on any part of his body below the breast line.

Two days later, on December 17th, Dr. Robert Yorke Herren, a neurosurgeon connected with Idaho State Hospital South, examined appellant. Dr. Herren determined by a cisternal puncture that appellant's spinal fluid was clear and colorless, which indicated lack of inflammation, infection or disease.

Appellant was discharged from Bingham Memorial Hospital February 3, 1956. Thereafter several physicians in the Salt Lake City, Utah area, examined appellant. Additionally appellant received physiotherapy. Those physicians concertedly concluded, as did respondent doctors, that appellant suffered a pathological condition known as transverse myelitis, about which little is known to medical science.

Appellant did not call any examining physician from the Salt Lake City area as a witness at the trial. The only physicians who testified at the trial, in addition to respondents who were cross-examined under I.R.C.P. 43(b), were Dr. Lynn H. Anderson, a specialist in internal medicine, and Dr. James S. Sullivan, an anesthesiologist, of Pocatello, Idaho. Dr. Anderson answered questions concerning certain accepted medical practices in the Blackfoot area in December, 1955. He stated that a record of the patient's medical history, past and present, and facts disclosed by a thorough physical examination were necessary parts of the patient's hospital record, to be obtained prior to undergoing major surgery, and that it was proper procedure to inform a patient of all attendant risks, not confined to surgery alone but including administration of medicine, before obtaining his consent in writing under the accepted practice.

Dr. Sullivan, who had not obtained his medical degree in 1955, and who was licensed to practice medicine in the state of Idaho in 1961, was the only medical expert, other than respondents, called by appellant to testify concerning the causes of the disease of transverse myelitis. His answers were couched in terms of conceivability and possibility. On cross-examination he admitted that there were causes of such disease in addition to those contained in the questions asked by appellant on direct examination. He admitted that he had never performed a myelogram during the course of his practice; also that he was unacquainted with the accepted procedure for performing myelograms in the Blackfoot area in 1955, or with the procedure used in performing a laminectomy and fusion.

Neither Dr. Anderson nor Dr. Sullivan testified concerning proper procedure to be used in the operations performed on appellant by respondents. Indeed, the testimony of respondent physicians as adverse witnesses under I.R.C.P. 43(b) constituted the only evidence adduced relating to the procedures used in performing those operations; and that evidence is undisputed.

On direct examination at the trial of his cause in October, 1962, appellant testified that he was unable to walk and was confined to a wheelchair; that he experienced frequent pain and muscle spasms from the level of his armpits downward and was unable to control the waste functions of his body. Appellant also testified that 'If the doctors [respondents] had explained * * * anything in the nature of risks or hazards,' he would not have undergone either the myelogram or the laminectomy and fusion.

Appellant, by his assignments which assert error of the trial court in directing a verdict in favor of respondents, contends among other things, (1) that there was a prima facie showing that respondents failed to obtain an informed consent from appellant; (2) that respondents misled appellant and induced him to submit to 'needless' surgery under the guise that it would make him 'as good as new'; (3) that respondent physicians and the agents of respondent County used unsterile materials and techniques during the operation on appellant; (4) that there was a misrepresentation of the myelogram findings by respondents, Drs. C. D. and M. P. Packer; (5) that all the respondents were negligent in that, in violation of the established medical practice in the area, they did not afford appellant a sufficient physical examination prior to surgery; and (6) that respondents Drs. Packer were negligent in performing the operation on December 15, 1955, after observing appellant's unusual symptoms following the myelogram and in failing to obtain advice from specialists in order to 'reverse' appellant's condition.

The evidence indicates the questions raised by these assignments of error are controlled by Willis v. Western Hospital Association, 67 Idaho 435, 182 P.2d 950 (1947) and Walker v. Distler, 78 Idaho 38, 296 P.2d 452 (1956). This is so simply because appellant failed to support his allegations of negligence on the part of respondents by a preponderance of the evidence or, for that matter, by any substantial competent evidence. In Willis v. Western Hospital Association, supra, the plaintiff alleged that the failure of the physicians and a nurse to provide proper medical, surgical and hospital treatment and care, resulted in the wrongful death of a patient. The Court, in affirming a judgment of non-suit, discussed at length the plaintiff's burden of proof in malpractice actions and why the trial court properly dismissed the action:

'The burden of proof was upon appellant to establish, by a preponderance of the evidence, that respondent doctors were negligent, careless and unskillful in performing the operation, and that the nurses negligently failed to render proper nursing care to the deceased in order to establish the right to recover. There is no substantial evidence in the record to establish the allegations * * * to the effect that deceased was not given proper or sufficient medical and surgical attention by the doctors, or that he was not given proper and adequate...