Huggins v. Hicken

• Decision Date: 07 May 1957
• Docket Number: No. 8497,8497
• Citation: 310 P.2d 523,6 Utah 2d 233
• Parties: d 233 Geraldine HUGGINS, Plaintiff and Appellant, v. N. Frederick HICKEN, Defendant and Respondent.
• Court: Utah Supreme Court

Page 523

310 P.2d 523

6 Utah 2d 233

Geraldine HUGGINS, Plaintiff and Appellant, v. N. Frederick HICKEN, Defendant and Respondent.

No. 8497.

Supreme Court of Utah.

May 7, 1957.

James E. Faust, Salt Lake City, for appellant.

Skeen, Worsley, Snow & Christensen, John Crawford, Jr., Salt Lake City, for respondent.

McDONOUGH, Chief Justice.

In a malpractice action against Dr. N. Frederick Hicken, the trial court, setting aside a verdict for plaintiff dismissed the action. From the judgment of dismissal plaintiff appeals.

Plaintiff, Geraldine Huggins, who had complained of severe chest pains, consulted with Dr. Hicken on July 26, 1954, and was examined by his associates, Drs. Huckleberry and McAllister, the following two days for kidney and gall bladder ailments. Being advised that her gall bladder was nonfunctioning and diseased, defendant submitted to an operation for the removal of her gall bladder. She was admitted to the L. D. S. Hospital on July 31, 1954, having signed the necessary consent for treatment.

On August 2, plaintiff was operated on by Dr. Hicken, who removed her gall bladder. Plaintiff does not question the care exercised during the operation; but rather she asserts that Dr. Hicken was negligent in postoperative treatment both while she was hospitalized, and while she was convalescing at the home of a cousin in Granger, Utah.

After the operation plaintiff suffered pulmonary complications allegedly culminating in a collapsed lung, causing pain and suffering and resulting in loss of employment, all of which she attributes to lack of postoperative care. She relies on Dr. Hicken himself as an adverse witness to establish the standard of care under question here following a gall bladder operation. The medical standard claimed included 'turning and coughing' the patient every two hours. Dr. Hicken explained that after upper abdominal surgery, when the abdominal muscles are painfully used, the tendency exists to breathe shallowly. This continued habit may result in a partial filling of the lung cells and an eventual collapse of the lung. Deep breathing and coughing tend to loosen the accumulated matter and aid in using the full capacity of the lung. According to Dr. Hicken, the medical standard of physicians within the community would require coughing and turning somewhere between every two hours, the routine maximum standard, and every six hours, the minimum standard.

Miss Huggins also claims that Dr. Hicken failed while she was hospitalized to observe elevation of pulse and temperature and to take remedial measures; failed to observe the pain plaintiff experienced, which required sedation; and failed to take X-rays to determine the cause of continued chest pains.

All of these claims, excepting, perhaps, the breach of the standard of care of coughing and turning, are unsupported by any expert testimony. In the case of Fredrickson v. Maw, 1951, 119 Utah 385, 387, 227 P.2d 772, 773, this court said:

'The better-reasoned cases announce a rule of law to the effect that in those cases which depend upon knowledge of the scientific effect of medicine, the results of surgery, or whether the attending physician exercised the ordinary care, skill and knowledge required of doctors in the community which he serves, must ordinarily be established by the testimony of physicians and surgeons. There is, however, another well-recognized rule holding that when facts may be ascertained by the ordinary use of the senses of lay witnesses, it is not necessary that expert testimony be produced and relied upon.'

In that case, an inference of negligence was allowed to be drawn from lay testimony where an object had been left by the doctor in an incision in his patient. Plaintiff cites the above-quoted case; also James v. Robertson, 1911, 39 Utah 414, 117 P. 1068 for the proposition that where there is an obvious breach of due care, no expert testimony is necessary to establish negligence. In the James case, the doctor denied the facts alleged by the plaintiff, but admitted that the standard of care was such as not to allow contact of carbolic acid with the cornea of plaintiff's eye. There, no expert testimony was needed to establish a breach of the standard. In the Fredrickson case, medical knowledge was not necessary to infer negligence in failing to remove an object from an incision, as it is necessary in the present case. Postoperative care of a gall bladder operation depends upon complex scientific knowledge and cannot be ascertained by common lay knowledge; consequently, the standard of care should be established by the testimony of physicians and surgeons, the absence of which testimony will result in no evidence to submit to a jury.

Although the hospital record does not specifically note that Miss Huggins was 'turned and coughed' as such as often as once every two hours, it does show orders entered and services rendered which necessarily involved movements of the abdomen and chest, such as: Giving shots, baths and enemas; 'being made comfortable;' inserting rectal tubes; and being catheterized. In fact the hospital record discloses 18 of such services in a period of 43 hours. Such evidence construed even most favorably to plaintiff cannot ignore the fact that action and movement took place often.

In view of this evidence no finding could reasonably be made that the patient was not turned and coughed at intervals sufficiently frequent to meet even the maximum standard as testified to by the doctor. Furthermore, orders were given by the defendant for regular turning and coughing as well as for other treatment and medication. If such orders were not carried out, the failure to do so was the responsibility of the hospital personnel and not of the doctor, unless the knowledge of such laxity was in some manner brought to the attention of the doctor and he...