Hamilton v. Hardy

• Decision Date: 26 February 1976
• Docket Number: No. 74--109,74--109
• Parties: Jnell M. HAMILTON, Plaintiff-Appellant, v. F. Wayne HARDY, M.D., and G. D. Searle & Co., Defendants-Appellees. . I
• Court: Colorado Court of Appeals

Page 1099

549 P.2d 1099

37 Colo.App. 375

Jnell M. HAMILTON, Plaintiff-Appellant, v. F. Wayne HARDY, M.D., and G. D. Searle & Co., Defendants-Appellees.

No. 74--109.

Colorado Court of Appeals, Div. I.

Feb. 26, 1976.

As Modified on Denial of Rehearing March 18, 1978.

Certiorari Denied May 3 and May 24, 1976.

Michaud, Cranmer, Syrios, Post & Levy, J. Harold Williams, Wichita, Kan., Elliott & Greengard, James E. Elliott, Jr., Denver, for plaintiff-appellant.

Yegge, Hall & Evans, Richard D. Hall, Denver, for defendant-appellee F. Wayne Hardy, M.D.

Tilly & Graves, James L. Tilly, Denver, Sidley & Austin, William P. Richmond, Chicago, Ill., for defendant-appellee G. D. Searle & Co. BERMAN, Judge.

This is a malpractice and products liability case. Plaintiff, Jnell M. Hamilton, alleged in her amended complaint that in April of 1967, defendant F. Wayne Hardy, M.D., prescribed for her the 'pill' Ovulen as an oral contraceptive; that thereafter she began to experience increasing headaches, migraine in nature, that she again visited Dr. Hardy who, despite being advised of her complaints, assured her she should continue the use of Ovulen, that on or about March 23, 1968, she suffered a stroke, and that the stroke was proximately caused by Dr. Hardy's negligent administration of the medication Ovulen.

Plaintiff further alleged that the stroke was also proximately caused by defendant G. D. Searle & Company's (Searle) negligent research, testing, and manufacturing of the drug Ovulen, by Searle's negligent and careless failure to give adequate warning of the dangerous, unsafe and harmful condition and propensities of the medication. She also alleged breach of express and implied warranties by Searle, that the drug Ovulen was defective and unreasonably dangerous, and intentional misrepresentation by Searle.

After plaintiff rested her case, the court granted Dr. Hardy's motion for dismissal. The court also granted Searle's motion for dismissal against plaintiff on her theories of breach of implied and express warranty, negligent testing, and intentional misrepresentation.

At the conclusion of Searle's defense, the court denied Searle's motion for a directed verdict, but refused to instruct the jury on the theory of strict liability. The case was submitted to a jury, which, in a general verdict, found the issues joined in favor of Searle. This appeal followed.

Plaintiff contends that the court erred in granting Dr. Hardy's motion for dismissal. She further contends that the court erred in admitting one of Searle's exhibits into evidence and in permitting cross-examination of plaintiff's witness with information contained in that exhibit, and that the court erred in refusing to give her tendered instructions on strict liability and negligent testing. She has not appealed the court's dismissal of her theories of breach of implied and express warranty, negligent testing, and intentional misrepresentation.

DISMISSAL OF CLAIMS AGAINST DR HARDY

Plaintiff contends the trial court erred in granting the motion to dismiss made by defendant Hardy at the close of plaintiff's evidence. She argues that there was sufficient evidence to submit to the jury the following three issues of malpractice by Dr. Hardy: (1) Whether Dr. Hardy possessed that reasonable degree of learning and skill which is ordinarily possessed by others of the medical profession in the Denver area with respect to birth control pill risks; (2) whether Dr. Hardy was negligent in not terminating the plaintiff's prescription for Ovulen upon learning that her headaches had become more severe and frequent while taking the pill; and (3) whether there was an informed consent given by plaintiff at the time Dr. Hardy prescribed Ovulen.

(1) Inadequate Knowledge of the Risks Related to Birth Control Pills

Plaintiff claims that Dr. Hardy's alleged lack of expertise concerning the risks associated with oral contraceptives should have been submitted to the jury, but she concedes that 'there was no expert evidence as to the deficiencies of Dr. Hardy's knowledge.' That absence of expert testimony justified the trial court's dismissal of this claim.

The law implies that a physician 'possesses that reasonable degree of learning and skill which is ordinarily possessed by others of the profession . . ..' Artist v. Butterweck, 162 Colo. 365, 426 P.2d 559. Whether Dr. Hardy possessed a reasonable degree of learning in 1967 with respect to the risks associated with oral contraceptives is not a matter so simple that laymen are equally as able as experts to pass on it; hence, expert testimony was necessary to sustain this claim. Daly v. Lininger, 87 Colo. 401, 288 P. 633. 'If no standard is established by the testimony of physicians, there is no standard for the determination of the ultimate question of the physician's negligence.' Smith v. Curran, 28 Colo.App. 358, 472 P.2d 769.

(2) Failure to Terminate Plaintiff's Prescription

Plaintiff next contends that there was sufficient evidence to submit to the jury the issue of whether Dr. Hardy was negligent in not terminating the plaintiff's prescription for Ovulen upon learning that her headaches had become more severe and frequent while taking the oral contraceptive Ovulen. We agree.

Plaintiff testified that on her second visit to Dr. Hardy in July of 1967 she told him that her headaches had increased in severity and frequency since she began taking Ovulen, pursuant to his prescription the previous April, and that she asked Dr. Hardy if Ovulen was the cause of her headaches and 'he emphatically said they were not.' For the purpose of this review, we assume the truth of this testimony. Bald Eagle Mining & Refining Co. v. Brunton, 165 Colo. 28, 437 P.2d 59; Newhouser v. Sancetta, 157 Colo. 353, 402 P.2d 613.

The issue thus becomes whether Dr. Hardy's conduct in not terminating plaintiff's use of the contraceptive was within the standard of care in the community in which he practiced. Although numerous doctros testified, the only evidence on the standard of care relevant to this issue came from Dr. Hardy (called as an adverse witness on behalf of plaintiff), and Kenneth R. Gottesfeld, M.D., a Denver obstetrician and gynecologist like Dr. Hardy. Dr. Hardy testified that upon being confronted with a patient with plaintiff's history and complaints, he would 'probably' terminate the drug and refer her to a neurologist. And, both doctros agreed that such procedure would be 'good medical practice;' however, on whether failure to terminate the drug fell below the applicable community standards, the testimony was inconclusive, there being both testimony that the 'average' gynecologist would have stopped the use of the drug and also testimony that 'some' well-qualified physicians would have continued it.

In dismissing the claim against Dr. Hardy, the trial court ruled that the subjective standard of Dr. Hardy and the average practitioner in his specialty would call for the termination of the drug, but ruled that there was no evidence that Dr. Hardy violated an objective standard of care applicable to the situation presented.

The objective standard is the proper test. Artist v. Butterweck, supra; Klimriewicz v. Karnick, 150 Colo. 267, 372 P.2d 736; Foose v. Haymond, 135 Colo. 275, 310 P.2d 722. Nor is Osborne v. Frazor, 58 Tenn.App. 15, 425 S.W.2d 768, cited by plaintiff, to the contrary. That decision merely supports the general rule that the objective standard of care may be established by the defendant-doctor's own testimony, it does not support a subjective standard of care test.

Nevertheless, viewing the pertinent expert testimony in the light most favorable to plaintiff, Bald Eagle Mining & Refining Co., supra, we find it sufficient to establish an objective standard of care by which the jury could judge Dr. Hardy's actions.

Dr. Gottesfeld testified that, under the history and symptoms presented by plaintiff, the 'average obstetrician-gynecologist standard' at that time would have been to remove plaintiff from the drug and seek neurological consultation. Dr. Hardy confirmed that this course of action would have been within the acceptable standard of care applicable and testified that he would 'probably' follow that procedure.

This testimony, viewed in the light most favorable to plaintiff, was sufficient to allow the jury to decide this issue, and the testimony that 'some' well-qualified physicians would not discontinue the drug would not remove the issue from the purview of the jury. Although 'some' well-qualified board-certified obstetricians and gynecologists might have continued plaintiff on the pill in July 1967, we do not find 'some' rises to the dignity of a respectable minority. Neither Dr. Hardy nor Dr. Gottesfeld said they approved of continuing the drug and neither testified that, in their opinion, this course of action was within the standard of practice in Denver in 1967. Only when it is shown that a respectable minority of physicians approved of the course of action selected should the case be taken from the jury. Olson v. Weitz, 37 Wash.2d 70, 221 P.2d 537.

Nor does the testimony of Dr. Gottesfeld that those doctors who continued the prescription would not have been guilty of malpractice 'in regards to warnings issued by the company,' alter our conclusion. A manufacturer's warnings do not set an absolute standard of care. Crouch v. Most, 78 N.Mex. 406, 432 P.2d 250. The standard by which a physician's conduct is judge is an objective community standard. Reliance solely on the manufacturer's warnings may or may not have been within the standard of medical practice in Denver at that time; there was no testimony on this subject. Accordingly, the issue should have been left for the jury to resolve under all the testimony presented.

(3) Informed Consent

As a final argument against the dismissal of her claim against Dr. Hardy, plaintiff asserts that her consent to take Ovulen was not an informed consent because Dr....