Hundley v. Martinez

• Decision Date: 12 December 1967
• Docket Number: No. 12666,12666
• Citation: 158 S.E.2d 159,151 W.Va. 977
• Court: West Virginia Supreme Court
• Parties: J. Howard HUNDLEY v. Antonio MARTINEZ.

Page 159

158 S.E.2d 159

151 W.Va. 977

J. Howard HUNDLEY v. Antonio MARTINEZ.

No. 12666.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 1967.

Decided Dec. 12, 1967.

Syllabus by the Court

1. A party to a controversy in any circuit court may obtain from this Court an appeal in any civil case where there is an order granting a new trial and such appeal may be taken from the order without waiting for the new trial to be held.

2. In a medical malpractice case the statute of limitations begins to run at the time the injury is inflicted, or, in the event the physician fraudulently conceals from the plaintiff the facts showing negligence, when the fraud is penetrated and the injury is discovered or when by the exercise of reasonable diligence it should have been discovered.

3. In a medical malpractice case it is for the jury to determine from the evidence whether or not the physician fraudulently concealed from the plaintiff patient the condition of which he complains and, if so, whether the plaintiff learned of the same or by the exercise of reasonable diligence should have learned of it more than two years prior to the institution of the action.

4. In an action for damages against a physician for negligence or want of skill in the treatment of an injury or disease, the burden is on the plaintiff to prove such negligence or want of skill and that it resulted in injury to the plaintiff.

5. 'It is the general rule that in medical malpractice cases negligence or want of professional skill can be proved only by expert witnesses.' Point 2, Syllabus, Roberts v. Gale, 149 W.Va. 166 (139 S.E.2d 272).

6. Where a doctor from New York City, who is qualified as a specialist in the treatment of diseases of the eye, is called as an expert witness in a malpractice action against a physician who practices the same speciality in Charleston, West Virginia, and testifies that there is a standard procedure employed in performing a cataract operation; that this standard is uniform throughout the country; and, that he is familiar with that standard, his testimony is admissible in a malpractice case involving a cataract operation.

H. D. Rollins, Charleston, for appellant.

Steptoe & Johnson, Wilson Anderson, Carl F. Stucky, Jr., Charleston, for appellee.

CAPLAN, Judge.

This is a malpractice action instituted in the Court of Common Pleas of Kanawha County by the plaintiff, J. Howard Hundley, against the defendant, Antonio Martinez, an ophthalmologist. In this action the plaintiff seeks recovery from the defendant for damages he claims to have suffered by reason of the alleged negligence of the defendant when the latter performed an operation on his right eye.

An examination of the record reveals that the plaintiff, having experienced difficulty with the vision of his right eye, went to see Doctor Martinez, the defendant, who informed him that he had a cataract formation and advised that it be corrected by an operation. The plaintiff consented and the operation was performed on his by the defendant on August 1, 1962. After the operation Mr. Hundley remained in the hospital for eight or nine days, during which time he was examined daily by Doctor Martinez who assured him that the 'eye was all right, getting along fine.' For several weeks after the operation, upon the advice of his doctor, the plaintiff kept a veil or guard over his right eye.

According to the testimony of the plaintiff, he went to see the defendant on many occasions during the ensuing months and on each occasion he was assured by the defendant that his eye would be all right. He continued to inform Doctor Martinez that his vision was very poor in that eye and that he was virtually blind in the daylight. In November 1962 the defendant prescribed glasses but this attempted correction did not help Mr. Hundley, a practicing attorney in the City of Charleston, who was past eighty years of age. He continued to call upon the defendant until May 22, 1963 when he paid his last visit. During all of these visits, Doctor Martinez repeatedly told him his eye was all right and that he would recover his vision. Finally, on May 22, 1963, the defendant told him he could not prescribe any further glasses and that the plaintiff's difficulty was that he had retina trouble. The plaintiff testified that during the months subsequent to the operation he was relying on his doctor and believed that his vision would improve. However, there was no improvement and Mr. Hundley continues to be virtually blind in that eye.

Several months after the operation, Mr. Hundley began to have serious difficulty with the vision of his left eye. As a consequence, on February 12, 1965, he consulted Doctor A. C. Chandler, a specialist in eye surgery, and was informed that he was in need of an operation for a cataract on his left eye. This operation was performed by Doctor Chandler on March 5, 1965. The plaintiff testified that Doctor Chandler on this occasion examined his right eye and informed him that more than half of the iris of that eye was missing and stated that he could not help him. The question and answer pertaining to the condition of the right eye were objected to by the defendant and the objection was sustained. Doctor Chandler did not testify in the trial of this case.

Mr. Hundley related that Doctor Chandler's report of the condition of his eye was the first information that he had that his eye was permanently damaged and that his vision would not return.

This malpractice action was instituted on May 5, 1965, wherein he charged that Doctor Martinez 'negligently and carelessly cut, tore, severed and otherwise removed more than one-half of the iris of his, the plaintiff's said eye * * *'. His complaint alleges total and permanent impairment of his sight.

It should be noted that the date of the operation performed on the plaintiff by the defendant was August 1, 1962 and that the action was instituted on May 5, 1965. The plaintiff, anticipating a plea of statute of limitations, charged in the complaint 'that the defendant well knew at the time that he had wrongfully removed a large part of the iris of the plaintiff's eye and had severed the aforesaid muscles controlling the pupil of the plaintiff's eye. He thereafter deliberately and fraudulently withheld this information from the plaintiff and fraudulently deceived the plaintiff by telling him that his eyesight would improve; and that he had trouble with the retina of his eye and that such trouble was the cause of his lack of ability to use his eye, which was wholly untrue since he knew that the condition would not and could not improve, and he knew that the plaintiff had no retina trouble whatsoever. The plaintiff did not know that a large part of the iris of his eye had been torn away and did not learn about the deception practiced upon him by the defendant until a few weeks prior to the institution of this action when he went to the office of another eye specialist who examined his eye and advised him that a large part of the iris of his eye was missing, and the aforesaid muscles controlling the pupil of his eye had been severed, which was the reason that he was unable to use his said eye.'

In answer, the defendant, Doctor Martinez, denied that he was guilty of negligence in the performance of the operation and further interposed a plea of the statute of limitation. It is, of course, his position in relation to that plea that if he were negligent such negligence occurred on August 1, 1962, the date of the operation, and that more than two years having passed prior to the institution of this action, such action was barred by the statute of limitations.

During the trial the plaintiff called Doctor Martinez to testify as a 'hostile' witness. During his testimony, Doctor Martinez read into the record his official report of the operation as dictated to his secretary immediately after said operation. This was permitted by the court but the plaintiff's request to have a photostatic copy thereof admitted as evidence was denied by the court. The testimony of Doctor Martinez, reading from the report, is as follows:

"Mr. J. Howard Hundley, 215 Loma Road, Charleston, West Virginia. DI 3--6823. Age 80. 8/1/62. Operation: Cataract extraction, right eye. Operating Surgeon: Dr. Antonia C. Martinez. Assistant Surgeon: Dr. Edwin M. Shepherd. Under local anesthesia of Novocain and Hydase, a conjunctival flap was made toward the cornea and the incision was made about one millimeter behind the limbus in the scleral tissue. We applied five sutures and we did three peripheral iridectomies.

'It should be iridotomies--it's iridectomies but it should be iridotomies.

'The erisophake was placed on the lens and the lens dislocated posteriorly with fluid vitreous presenting. The erisophake did not take hold. We caught the lens with the spoon which engaged the iris. The iris was very thin and tore and the greater part of it had to be removed. We closed the wound. Put air in the anterior chamber and injected penicillin subconjunctivally. AM:bas. " 'Bas is the initial of my secretary.'

Following the testimony of Mr. Hundley, counsel for the plaintiff offered the deposition of Walter R. Loewe, an ophthalmologist of New York City, and requested that it be read into the record. Thereupon, counsel for the defendant objected to the admission of such deposition on the ground that this witness did not qualify himself as being familiar with the standards of care, practice and skill employed by medical practitioners in Charleston, West Virginia and the vicinity at the time of the operation on the plaintiff by the defendant in August, 1962. The objection was overruled by the trial court, and, after certain specific objections to Doctor Loewe's testimony were ruled upon, the deposition was read to the jury. At the conclusion of the reading of the testimony of Doctor Loewe, the plaintiff rested.

Defendant, by his counsel, then moved the court to...