Holland v. Stacy, 43888
| Decision Date | 02 May 1972 |
| Docket Number | No. 43888,43888 |
| Citation | 496 P.2d 1180,1972 OK 69 |
| Parties | Chester HOLLAND, Appellant, v. J. R. STACY, Appellee. |
| Court | Oklahoma Supreme Court |
Durward McDaniel, Maurice G. Speers, and Love & Sullivan, Incorporated, by Claude E. Love, Oklahoma City, for appellant.
Foliart, Shepherd, Mills & Niemeyer, by James W. Shepherd, Oklahoma City, for appellee.
On October 18th, Appellant, hereinafter referred to as 'plaintiff', was hospitalized in a hospital herein referred to as 'M Hospital', at the request of Appellee, an Oklahoma City orthopedic surgeon, hereinafter referred to as 'defendant', for treatment of two infected or gangrenous toes on his left foot. Thereafter, on October 24th, while still hospitalized there, plaintiff suddenly became totally blind. After other doctors were consulted, the cause of plaintiff's blindness was diagnosed as a 'retinal central arterial thrombosis.'
Thereafter, plaintiff instituted the present action to recover damages from defendant, charging him with malpractice and negligence, and alleging, in effect, that this was the cause of his blindness. In his pleadings, plaintiff also alleged that he did not know just what caused his blindness and asserted the doctrine of res ipsa loquitur as applicable to the case.
At the trial, plaintiff attempted to establish that a drug called 'elixir of roniacol', 'roniacol', or 'nicotinal cartrate', which was administered to him on defendant's order (along with other medications), caused the thrombosis. Plaintiff testified that about a teaspoon of the roniacol was given him three times a day and an alcoholic stimulant four times a day until October 23rd, when he told defendant he could not take it any longer because it was making him sick at his stomach. Plaintiff further testified that on October 24th, after he discovered he could not see, no more of such medications were prescribed for him; that a Dr. K took over the treatment of his toes until they were well when he left M Hospital in December, and that he has had no trouble with them since.
In his effort to show that the medications defendant prescribed for him caused his blindness, plaintiff called defendant to the stand as his witness and interrogated him extensively concerning them, especially the nicotinal or roniacol cartrate. During defendant's direct examination, plaintiff's counsel sought to show by his testimony that this roniacol was not recommended for patients, with a medical history like plaintiff's, by asking questions about certain statements in a 1964 publication of the American Medical Association's Council on Pharmacy and Chemistry called 'New and Official Drugs.' Under counsel's questioning, defendant admitted that this publication's purpose had been to 'provide the standards for drugs used by the medical profession . . .'; and counsel read to him the following statement from it:
'Moreover, the drug should not be used on patients with Cerebral vascular diseases since diminution of blood vessels which might occur Could be harmful.' (Emphasis added)
When asked if he was familiar with this statement, defendant testified that it had 'reference to a patient with high blood pressure which Mr. Holland did not have, and suddenly lowering that high blood pressure with large doses of basal dilators, causing circulatory trouble.' Plaintiff's counsel then elicited from defendant the admission that he knew that, when a Dr. H had previously hospitalized plaintiff at W Hospital in March, 1955, on account of complaints of 'headaches and difficulty in using his left hand,' plaintiff's condition had been diagnosed as 'cerebral vascular lesion, type unknown, but probably thrombosis.' (Emphasis added)
Over the objection of plaintiff's counsel, defense counsel was then permitted to cross-examine defendant.
At the close of plaintiff's evidence, the court sustained defendant's demurrer to it. After judgment in defendant's favor was entered accordingly, plaintiff lodged the present appeal.
Under Propositions 'III', 'IV', and 'VI' of plaintiff's brief, he contends the trial court erred in sustaining defendant's demurrer to his evidence, and in 'refusing to invoke the doctrine of res ipsa loquitur'; and also that there was sufficient evidence that defendant had been guilty of negligence, in prescribing roniacol, that the court should have submitted this issue to the jury, even without benefit of said doctrine.
Under 'III' and 'VI', above, plaintiff points to testimony showing the complaints he made about the medications he was receiving and he contends this shows that defendant had notice, before October 24th 'that something might be wrong . . .' He asserts that, upon receipt of such notice, it became defendant's duty 'to determine the correctness of his treatment and dosages.' He further says that the trial court should have concluded that defendant owed him this duty 'so that the Court should have passed the question to the jury to find whether or not there was a causal relation between the bitter tasting medicine . . .' and plaintiff's subsequent blindness. Plaintiff says it is a matter of common knowledge that internal medication for a vascular disease in the foot does not ordinarily cause blindness unless there is something wrong with the medication. Under his Proposition IV, he says: 'To be hospitalized for the treatment of a gangrenous toe, and, after five days of internal medication, to awaken blind is so extraordinary an occurrence within the general observations of mankind as to raise an inference of negligence.' Plaintiff's position appears to be summed up in the following words of his brief: 'Under the evidence adduced . . . by the plaintiff . . . the Trial Judge should have invoked the evidentiary rules of res ipsa loquitur and thereafter required . . . defendant to proceed with . . . evidence 'designed to explain the accident,' and to show lack of negligence on the part of the defendant.'
Plaintiff's arguments overlook an essential prerequisite for application of the doctrine of res ipsa loquitur. In St. John's Hospital & School of Nursing v. Chapman, Okl., 434 P.2d 160, and some of the other cases cited by plaintiff, it is made clear that one of the 'foundation facts' to be established by the evidence to bring a case within this doctrine's application is 'what thing' caused the injury. Here, there is no evidence establishing that either the alcoholic stimulant (often referred to in the evidence as 'spirits fermenti') or the elixir of roniacol (nicotinal or roniacol cartrate) or a combination of the two, caused plaintiff's blindness.
Plaintiff's argument under his PROPOSITION VI is, in substance, that his evidence was sufficient to withstand defendant's demurrer, even...
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Jackson v. Oklahoma Memorial Hosp.
...Thompson, supra note 16 at 265; Turney, supra note 16 at 1304; Martin v. Stratton, Okl., 515 P.2d 1366, 1370 (1973); Holland v. Stacy, Okl., 496 P.2d 1180, 1183 (1972); St. John's, supra note 16 at 166-167.18 For many years the term "burden of proof" was ambiguous, because the term was used......
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...Thompson, supra note 10 at 265; Turney, supra note 11 at 1304; Martin v. Stratton, 1973 OK 124, 515 P.2d 1366, 1370; Holland v. Stacy, 1972 OK 69, 496 P.2d 1180, 1183; St. John's, supra note 11 at 166-167.13 For many years the phrase "burden of proof" was ambiguous, because the term was use......
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Martin v. Stratton
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Karriman v. Orthopedic Clinic, 44834
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