Kobos By and Through Kobos v. Everts
| Decision Date | 17 January 1989 |
| Docket Number | No. 86-12,A,I-,I-X,86-12 |
| Citation | 768 P.2d 534 |
| Parties | Michael Robert KOBOS, a minor child two years of age, By and Through Michael KOBOS and Rebecca Kobos, his parents and next friends; Michael Kobos and Rebecca Kobos, Appellants (Plaintiffs), v. Charles EVERTS, M.D.; Richard G. Sugden, M.D.; Kenneth L. Lambert, M.D.; Kenneth L. Lambert, M.D., P.C., a Wyoming professional corporation; Teton Radiology Associates, P.C., a Wyoming professional corporation; James R. Little, M.D.; Thomas Pockat, M.D.; Jackson Pediatrics, P.C., a Wyoming professional corporation; John Does; and Doe Partnerships, Corporations and/or Other Entities, Appellees (Defendants). |
| Court | Wyoming Supreme Court |
Lawrence B. Hartnett, Jackson, for appellants.
J.E. Vlastos of Vlastos, Brooks & Henley, P.C., Casper, for appellees Everts and Teton Radiology Associates, P.C.
Frank D. Neville and Michael Golden of Williams, Porter, Day & Neville, P.C., Casper, for appellee Sugden.
Paul B. Godfrey of Godfrey, Sundahl & Jorgenson, Cheyenne, for appellee Lambert.
Carl L. Lathrop of Lathrop, Rutledge & Boley, Cheyenne, for appellee Little.
Lawrence A. Yonkee of Redle, Yonkee & Arney, Sheridan, for appellee Pockat.
Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, * J., Retired.
Presented for appellate review is a six week medical malpractice trial against five physicians involving claims of improper hip treatment of osteomyelitis and septic arthritis of a one year old child, which resulted in verdicts in favor of four defendants and directed verdicts for all. The issues encompass excluded witnesses, denied cross-examination, directed verdicts and contended erroneous negligence instruction.
We reverse and remand for retrial.
Although variously stated by appellants and the five separate appellees who are differently affected, the appellate issues presented include:
1. Basic medical malpractice negligence instruction;
2. Directed verdict for the radiologist;
3. Subsequent directed verdicts for other appellees after they secured a favorable jury verdict;
4. Trial court decision denying appellants the right to call the appellee doctors as adverse witnesses during their case in chief; and
5. Contested witness exclusion and evidentiary decisions of the trial court:
a. Limitation on testimony of appellants' expert radiologist to consider standard of care as contributory to the injury sustained;
b. Limitation of testimony of expert witnesses regarding standard of care of radiologist which was rejected either as cumulative or not competent;
c. Denied use of Michael Lagios, M.D. as an expert witness on the basis that his testimony would be cumulative; and
d. Denied use of Lawrence Madoff, M.D. as an expert witness on the basis that his testimony would be cumulative.
Appellants include Michael Robert Kobos, a young child, and his parents of Jackson, Wyoming. In 1981, as the date of these events, the one year old developed a right hip pain. The patient was first evaluated in office and through telephone contact by Jackson doctors, James R. Little, M.D. and associate intern, Thomas J. Pockat, M.D. With the young child's condition producing "essentially normal x-rays," he was then seen by a general pediatrician, appellee Richard G. Sugden, M.D., whose office was in the same building as Dr. Little's. Consultation followed with yet another doctor, appellee Kenneth L. Lambert, M.D., a Jackson orthopedic surgeon. In this period of regular examinations as the child's problem continued, x-rays were taken and reviewed by appellee radiologist Charles Everts, M.D., with the continued finding of an essentially normal condition for the medical evaluation.
After about two and one-half months of this course of action with care limited to continuous office visits and no improvement, medical reference was made by Dr. Sugden for the child to be evaluated at the University of Utah Medical Center in Salt Lake City, Utah. The serious condition as diagnosed in Utah required apparent surgery, which was done by return to Jackson and performed by Dr. William Mott. Following surgery, the diagnosis was made of chronic osteomyelitis (infected bone).
As a result of either a developmental infected bone condition or surgical misadventure by Dr. Mott, growth plate damage resulted to the femur which will bring about significant future hip growth and use problems for the child. The broad character of factual issues considered at trial was whether the delayed medical attention while the infected bone condition developed precipitated the recognized injury or whether Dr. Mott, in final curative surgery, caused the permanent injury damage during the surgical process. Consequently in litigative approach, appellees denied diagnosis delay or treatment fault and blamed Dr. Mott as the surgeon who operated. The record of the lengthy trial can be summed up as including complicated evidence and a significant number of expert witnesses. Qualification of appellants' expert witnesses at trial was particularly painstaking in time, detail and opposition.
A principal issue in this appeal is appellants' challenge to the instructions, which included Instruction No. 18 as subject to the most detailed objection at trial and upon appeal. Instruction No. 18 states:
You are instructed that physicians and surgeons are not liable for mere errors of judgment, provided there has been a careful examination and ordinary care and skill has been exercised.
Then, the defendants, each or all of them, are not liable. 1
Appellants assert that Instruction No. 10 was a correct articulation of the law and that Instruction No. 18 was improper as contrary to Vassos v. Roussalis, 625 P.2d 768 (Wyo.1981) (Vassos I) and Vassos v. Roussalis, 658 P.2d 1284 (Wyo.1983) (Vassos II). We agree.
In Vassos I, 625 P.2d at 772-73, as recognizing that a malpractice action is usually a form of negligence litigation, this court observed:
[T]he existence of the physician-patient relationship established the duty. The standard is fixed as that which is required of a reasonable person in light of all the circumstances. * * * A malpractice contention is also one of those circumstances. The more specific standard for malpractice actions is that a physician or surgeon must exercise the skill, diligence and knowledge, and must apply the means and methods, which would reasonably be exercised and applied under similar circumstances by members of his profession in good standing and in the same line of practice. * * *
The skill, diligence, knowledge, means and methods are not those "ordinarily" or "generally" or "customarily" exercised or applied, but are those that are "reasonably" exercised or applied. Negligence cannot be excused on the grounds that others practice the same kind of negligence. Medicine is not an exact science and the proper practice cannot be gauged by a fixed rule. * * *
* * * such circumstances are not of such common knowledge, the jury must depend upon testimony of experts to explain the standard and thus prevent a conclusion based on conjecture and speculation. * * * In other words, an additional question of fact must be answered when the circumstances are such that the reasonable person standard is not within the common knowledge of the jury.
Furthermore, strict adherence to the so-called locality rule is not appropriate. DeHerrera v. Memorial Hospital of Carbon County, 590 P.2d 1342 (Wyo.1979); Vassos II, 658 P.2d 1284. We cannot accommodate acceptance of the instruction given within the criteria of the Vassos rule after the timely objection at trial that the instruction would confuse or mislead the jury as to the appropriate principle of law. Cervelli v. Graves, 661 P.2d 1032 (Wyo.1983). The phraseology given simply does not define a duty of due care but bespeaks in responsibility to moral decision and honesty, and as the principal instruction, constitutes reversible error. Intent is not a factor of negligence since negligence precludes intended conduct. Globe Indem. Co. v. Blomfield, 115 Ariz. 5, 562 P.2d 1372 (1977); 65 C.J.S. Negligence § 3 at 473 (1966); W. Prosser & W. Keeton, The Law of Torts § 31 at 169 (5th ed. 1984).
A leading authority has been identifiable within the Wyoming criterion which provides that there are two applicable standards of care to be applied in malpractice cases.
The first, which was correctly charged, holds the doctor to the standard of care measured by the knowledge and ability of the average physician or specialist in good standing in the community where he practices. This is the standard of reasonable care. Liability is premised upon the failure to exercise reasonable care, so measured. A doctor is also subject to a separate duty which requires him to use his best judgment, but which does not make him liable for mere error in judgment, provided he does what he thinks is best after careful examination. * * * "An error of judgment charged is appropriate in a case where a doctor is confronted with several alternatives and, in determining the appropriate treatment to be rendered, exercises his judgment by following one course of action in lieu of another."
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