Hardy v. Southern Pac. Emp. Ass'n
| Decision Date | 20 October 1969 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 459 P.2d 743,10 Ariz.App. 464 |
| Parties | Albert D. HARDY and Madelyn Hardy, husband and wife, Appellants and Cross-Appellees, v. SOUTHERN PACIFIC EMPLOYEES ASSOCIATION, Inc., a California corporation; Kenneth C. Baker and Jane Doe Baker, husband and wife, Appellees and Cross- Appellants. 608. |
| Court | Arizona Court of Appeals |
Spaid, Fish, Briney & Duffield, by Richard Briney, Tucson, for appellants and cross-appellees.
Lesher & Scruggs, by Robert O. Lesher, Tucson, for appellees and cross-appellants.
The Hardys brought suit against Kenneth C. Baker, M.D., a specialist in dermatology, and his employer, Southern Pacific Employees Hospital Association, for damages allegedly resulting from medical malpractice. A jury verdict in the sum of $45,000 was returned in favor of the plaintiffs and judgment was entered thereon. The trial court denied the defendants' motion for judgment notwithstanding the verdict, but granted their alternative motion for a new trial. The Hardys ask that we reverse the judgment and order granting a new trial and reinstate the judgment on the verdict. Appellees have cross-appealed questioning the sufficiency of the evidence to take the case to the jury.
In January, 1964, while on the job as a maintenance-of-way employee of the Southern Pacific Company, Albert Hardy spilled some creosote on his lower lip. A lesion developed on the lip and in the course of treatment he was on July 25, 1964, referred to Dr. Baker 'to rule out carcinoma (cancer).' Hardy received medical treatment from Dr. Baker for approximately 14 months and made some 34 office visits to him during that time. Dr. Baker applied various agents to the patient's lip, including dry ice, alcohol and x-ray. The lesion did not respond to the treatment, but became worse. Hardy testified that he was 'always in pain,' and that near the first of May, 1965, the lesion A biopsy was performed by Dr. Baker during September, 1965, approximately 14 months after the plaintiff was referred to him. This biopsy indicated the existence of cancer on the plaintiff's lower left lip, which was removed by Dr. Nattinger that same month. On October 11, 1966, another biopsy by Dr. Nattinger was done, and further surgery to eliminate the cancer was performed on November 15, 1966.
Expert testimony was given to the effect that proof of the existence of cancer is dependent upon a biopsy and microscopic examination and that such procedure was recognized in the community as a standard diagnostic test for the determination of the existence of cancer. Dr. Baker testified that he discussed with the patient the advisability of a biopsy for the first time in September of 1964. Hardy denied that a biopsy had been mentioned prior to September, 1965.
During the period of treatment by Dr. Baker, Hardy continued his outdoor assignment of employment, although other assignments may have been available. Dr. Baker testified that he recommended shady work and cautioned against harmful effects of working in the sun. The doctor's records do not reflect that such a caution was given and Hardy denied that it was.
In granting a new trial the court gave the following reasons:
'1. The damages assessed in the jury's verdict were greatly excessive and bore no relation to the damages properly and lawfully proved;
'2. The court erred in admitting any evidence concerning the 'second surgery' or the 'third surgery' or of the 'second cancer' suffered by Albert Hardy, or of any injury or damages related to or caused by any of these things; or of any permanent or allegedly permanent mental or physical injury to Albert Hardy; or of any claimed injury or damage to plaintiff after September 15, 1965;
requested instructions 2, 3 and 4, and each of them;
The trial judge has wide discretion in granting a new trial and so long as the granting is based upon reason and the law, we will not interfere. Mayo v. Ephrom, 84 Ariz. 169, 325 P.2d 814 (1958). We will initially consider the second reason given for the new trial; that the court erred in admitting evidence concerning the second or the third surgery and the second cancer, noting that no objection was made to the admission of this evidence.
Upon examination of the record, we believe that the trial court did not commit error in admitting evidence of these subsequent cancers and surgeries. The record indicates that the plaintiff testified that approximately one year after removal of the first cancer, 'a spot had appeared in the same place.' Dr. Baker testified that once a cancer of this character has been diagnosed and removed the possibility for recurrence is 'very minimal.'
The following testimony, elicited from the surgeon, Dr. Nattinger, who operated on the plaintiff, is pertinent:
'Q How many times did you see Mr. Hardy in the office prior to the second surgical procedure you did in the office?
A Thirteen times.
Q What was the purpose, Dr., of seeing the patient on those occasions? I don't want you to be specific as to each, but on the overall.
A It's a routine thing to follow a patient, especially with a malignancy, for a year at least.
Q Is there any recognized medical standard of time for which it is advisable to follow at intervals a patient who has had a cancer and has had it removed by surgery?
A After the first six months one might drop off the observation to maybe every two months for another six months. Once or twice a year for another year. And you see them practically all your life.
Q Is there some rule of thumb about a five year period?
A It is an arbitrary figure, yes.
Q * * * By reason of the cancer having been diagnosed and removed is it medically advisable to follow the patient for a minimum period of five years at infrequent intervals to make certain that cancer has not yet spread?
A Observation over that length of time is more to be certain that no New ones develop.
Q Do you sometimes follow a patient who has had a cancer of the character that Mr. Hardy had for the purpose of making sure that that one hasn't spread?
A Oh, yes, of course.
Q What are the consequences if the particular type of carcinoma that you operated our of Mr. Hardy's lip, if it does in fact spread?
A Locally or widely?
Q Both.
A A local spread, if the patient is kept under observation, can be reoperated without too much difficulty.
Q Did that occur in this case?
A Yes, it did.'
An objection was made to the last answer, but no motion was made to strike the testimony. 1
'A On the thirteenth visit * * * we noticed a scaling and some signs of abnormality In the site of the operative scar. (Emphasis added)
A With this type of report (biopsy), where we obviously went the reasonable distance beyond it, it became necessary to plan a second operation.
A To clear the local area, Because we weren't far enough beyond it. (Emphasis added)
Q When the gentleman came to the office and you found that a cancer which you removed by a wide biopsy, if I use words that have any meaning to you, where was it located, the cancer that you found at that location in relationship to where the cancer had been that you operated on September 23, 1965?
A In the immediate vicinity.
A It was only four days from the excision of this small lesion in the office until we took him to Veterans Hospital for further surgery. In assuming that--let me go back a little bit. At the time this one was done the edges were proven free of any carcinoma, any malignancy. So then within a matter of, I have forgotten how long, roughly three months, probably, To find a recurrence of further malignancy one would have to suspect then that the areas throughout the lip would in due course of time break down and have further trouble. So we decided then to remove the entire exposed margin of the lip from one corner to the other. This was carried down, oh, approximately an eighth of an inch, down to the deep muscles of the lip itself * * *.' (Emphasis added)
Although this testimony was subsequently contradicted in part by Dr. Nattinger, we believe that from the foregoing testimony the jury could have reasonably concluded the second cancer and operation was causally connected to the initial difficulty, and that a possibility exists that the cancerous growth may have recurred. Vigil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967). Consequently, we believe the trial court was correct in admitting this testimony, and that it erred in specifying this as one of the grounds for a new trial.
We now proceed to the third reason given by the trial court in granting a new trial, to-wit: that it erred in charging the jury in giving plaintiff's requested instructions 9, 10, 11 and 12...
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