Hall v. Delvat
| Decision Date | 27 February 1964 |
| Docket Number | No. 7031,7031 |
| Citation | 389 P.2d 692,95 Ariz. 286 |
| Parties | Dr. K. E. HALL dba North Mountain Hospital, Appellant, v. Dolores DELVAT, Appellee. |
| Court | Arizona Supreme Court |
Ernest W. McFarland, and Johnston & Gillenwater, Phoenix, for appellant.
Stephen W. Connors and Jack C. Cavness, Phoenix, for appellee.
This action was brought in the Superior Court of Maricopa County by Dolors Delvat, plaintiff-appellee, hereinafter referred to as the plaintiff, against Dr. K. E. Hall, defendant-appellant, hereinafter referred to as defendant, for damages that accrued to plaintiff on account of alleged acts of negligence in operations performed upon her by the defendant.
The case was tried before a jury and a verdict returned for plaintiff in the sum of $50,000, with judgment entered accordingly. Motion made by defendant for a new trial was denied and this appeal followed.
The essential facts are that plaintiff had been treated by the defendant in his professional capacity for several years prior to January 1, 1957; that on the 7th day of January, 1957, defendant performed a hysterectomy on the plaintiff and that several days thereafter the defendant performed a second operation on a fistula that had developed. Later, about March 1, 1957, defendant found it necessary to close the fistula which remained closed until the 6th of March. The defendant performed a third operation on plaintiff on April 1, 1957, to alleviate an intestinal obstruction, and thereafter, on the 4th of May, the defendant did a colostomy, and on the 17th of June again closed the fistula. On July 6 1957, plaintiff was admitted to the Maricopa County Hospital where further surgery was performed by the defendant.
In the amended complaint, plaintiff alleged general neglect on the part of defendant in rendering professional services and also, in the same count, specifically alleged that the defendant 'negligently, recklessly, wantonly and carelessly cut plaintiff's bowel in one or two places; that said cutting was not a necessary part of the operation; that during said operation defendant and or his agent negligently, recklessly, carelessly and wantonly allowed a piece of surgical rubber glove to remain inside plaintiff's abdominal cavity.'
After the filing of her complaint, plaintiff's deposition was taken and the plaintiff stated under oath that the defendant did not use proper skill in performing operations on plaintiff, and as a result thereof he nicked the plaintiff's bowel in two places and further that at the time of the operation a portion of a rubber glove was allowed to remain in plaintiff's abdomen, which caused considerable trouble and infection which continued until it was removed by an exploratory operation performed by a Dr. Alesio.
In preparation for trial the defendant requested plaintiff to give the names of all of her witnesses. Plaintiff responded by giving a list, but she failed to list Dr. William H. Cleveland and Dr. Henry J. Williams, her chief expert witnesses. In answering the interrogatories plaintiff again failed to include the names of Doctors Cleveland and Williams.
In his opening statement at the beginning of the trial plaintiff's counsel disclosed for the first time that her claim was based on the proposition that defendant was negligent and violated the standard of medical practice in the following particulars:
1. That he failed to have proper assistance [assistants] at the time of the first operation;
2. That he prescribed the drug 'prostigmin';
3. That he failed to perform a colostomy at the time of the closing of the fistula; and
4. That he failed to perform a double-barreled colostomy at the time of the first colostomy operation.
It is claimed by defendant that these alleged acts of negligence had never before been disclosed by the plaintiff, either in the pleadings or in answer to interrogatories, and defendant states further that for the first time the names of Dr. Cleveland and Dr. Williams were disclosed as witnesses.
At the conclusion of the opening statement the defendant pleaded surprise and moved the court either to exclude evidence in regard to the alleged acts of negligence, or grant a continuance in order that defendant could prepare for trial. These motions were denied. Thereafter, defendant objected to plaintiff's using Dr. Williams and Dr. Cleveland as witnesses, because their names had never been disclosed prior to the date of trial, and further objected to the introduction of testimony regarding the alleged acts of negligence on the part of the defendant which had never been set out in the plaintiff's complaint or in the plaintiff's deposition. These objections were overruled.
During the course of the trial, testimony was offered to show that plaintiff's bowel had been nicked and that a rubber glove was left in the abdominal cavity, although in the opening statement plaintiff's counsel had stated they did not intend to show that either of these acts caused damage to plaintiff.
The record also discloses that after the jury had retired for its deliberations nine of the jurors voted for plaintiff on the issue of liability and that the other three jurors disagreed with the majority. The nine were then the only jurors who voted on the question of the amount of damages that had been incurred by plaintiff. The other three separated themselves from the nine after the initial vote on the question of liability, retired to another room and did not participate in voting on the question of the amount of damages.
The defendant first contends that the evidence concerning (a) the improper staff, (b) the improper prescription of medicine, (c) failure to do a colostomy at the time of the second operation, and (b) failure to perform a double-barreled colostomy at the fourth operation, should have been excluded or, that his motion for a continuance should have been granted, since the plaintiff's amended complaint and deposition had expressly stated that plaintiff relied on the specific acts of negligence, to-wit: the nicking of the bowel in two places and the leaving of a rubber glove in the abdominal cavity; that the defendant had been led to believe that he had to defend only against...
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