Lockart v. Maclean, 4344

• Decision Date: 02 May 1961
• Docket Number: No. 4344,4344
• Citation: 77 Nev. 210,361 P.2d 670
• Parties: Bernard E. LOCKART, Appellant, v. Kenneth MACLEAN and William Manning Tappan, Respondents.
• Court: Nevada Supreme Court

Page 670

361 P.2d 670

77 Nev. 210

Bernard E. LOCKART, Appellant, v. Kenneth MACLEAN and William Manning Tappan, Respondents.

No. 4344.

Supreme Court of Nevada.

May 2, 1961.

Harry A. Busscher, Reno, Fitz-Gerald Ames, Sr., and LeRoy W. Rice, San Francisco, Cal., for appellant.

Woodburn, Forman, Wedge, Blakey & Thompson, Reno, for respondents.

PIKE, Justice.

This is an appeal from an order of the trial court granting respondents' motion for summary judgment.

On August 18, 1956 appellant Lockart, who had fallen and sustained a fracture of the mid-right thigh, was taken to the Washoe Medical Center at Reno where he remained as a patient under the care of the two respondent doctors until his discharge from that hospital on November 13, 1956. On the day following his arrival at the hospital appellant was operated upon by respondents who performed an incision, inserting an intramendullary pin in the fractured femur. Subsequently osteomyelitis, or infection of the bone, developed. Appellant brought suit against respondents, seeking damages and alleging that respondents negligently treated, cared for and operated upon appellant, and that respondents 'did not exercise the degree of care, skill and learning ordinarily possessed by hospital and physicians and surgeons practicing in the same locality.' Respondents, by answer, denied all material allegations of appellant's complaint. Appellant took the depositions of both respondent doctors and also that of the record clerk of Washoe Medical Center who produced and identified the hospital records pertaining to the treatment received by appellant while a patient.

On September 23, 1959 respondents filed a motion for summary judgment under Rule 56 NRCP, stating that the motion was made on the ground that there was no genuine issue as to any material fact in the action, and respondents were entitled to judgment as a matter of law. In making the motion respondents relied upon their own above referred to depositions, as well as the affidavits of Edwin Cantlon, M.D., William A. O'Brien III, M.D., and Eugenia LaFevere, surgical nurse. In support of appellant's opposition to the granting of said motion, the affidavit of Dr. David J. Tepper, an osteopathic physician and surgeon with offices in Oakland, California, was offered in evidence. The offer was rejected for lack of a showing of competency on the part of the affiant Dr. Tepper.

NRCP, Rule 56, subd. (c), under which the motion for summary judgment was made, after providing that the motion may be made with supporting affidavits, and that the adverse party may serve opposing affidavits, states in part 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

Subd. (e) of the same rule provides 'Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.'

The parties stipulated that the affidavits of Edwin Cantlon, M.D., William A. O'Brien III, M.D., and Eugenia LaFevere, surgical nurse, might be considered in support of respondents' motion for summary judgment. These affidavits may be summarized as follows: Dr. Cantlon's affidavit, after outlining his background of education, training and experience in medicine and surgery, including some 14 years' practice in Reno, stated that he was a former chief of staff of both Washoe Medical Center and St. Mary's Hospital in Reno, Nevada and, at one time, had been called upon to review and establish the standards of surgical and orthopedic practice in Reno; that he had participated in surgery with most surgeons in Reno and, by observation, knew the standard of surgeons in that locality. Based upon the hospital records and respondents' depositions, he expressed his opinion that the standard of conduct of respondent doctors was in accordance with the standards of surgeons in Reno and that, in his opinion, there was no basis in fact for appellant's claim that said respondent doctors did not meet or comply with the said standards. This affiant also stated that, in his opinion, the cause of the infection and osteomyelitis which appeared in patient Lockart's right leg subsequent to the operation was impossible of determination, and that the procedures selected by the respondent doctors to combat the same were proper and in accordance with the standard of conduct of surgeons and orthopedic surgeons practicing in Reno, Nevada.

Dr. O'Brien's affidavit showed that he had practiced medicine in Reno for about 13 years, was a former chief of staff at Washoe Medical Center and, as such, had assisted in establishing the procedures and standard of conduct for members of the staff and had, among other things, established a sepsis committee to formulate procedures to control hospital infections; that affiant had, on occasion, observed the work of every surgeon serving in the area at either Washoe Medical Center or St. Mary's Hospital, and knew the standard of conduct of surgeons and orthopedic surgeons practicing in said area; that affiant was the anesthesiologist for Bernard Lockart during his operation by Dr. Maclean; and that, in his opinion, the preoperative preparations to guard against infection were excellent in that instance, as were the methods selected by Dr. Maclean to reduce the fracture, and that the same were in accordance with the standard of conduct of surgeons and orthopedic surgeons practicing in Reno, Nevada. Affiant stated that, in his opinion, it was impossible to determine the cause of infection or osteomyelitis in patient Lockart, and further stated that the same will occur even though the highest degree of care is exercised by those in attendance, and that such care was exercised in this particular instance. The affiant further stated his opinion, based upon his review of the records, that the postoperative care and treatment of patient Lockart by respondent doctors, and the procedures selected by said doctors to combat the infection and osteomyelitis were proper and in accordance with the standard of conduct of surgeons and orthopedic surgeons practicing in Reno, Nevada. The affiant stated that the infection was recognized immediately and every precaution taken thereafter to combat it; that it was treated vigorously; that it was affiant's belief that, even with proper technique, approximately one percent of all surgical patients will develop infection and that, in affiant's opinion, there was no basis in fact for Lockart's claim that respondent doctors did not meet or comply with the standard of conduct of surgeons in Reno, Nevada, in either the diagnosis, preoperative care, operation, and postoperative care and treatment.

The affidavit of Eugenia LaFevere, surgical nurse, who was present at the Lockart operation, stated the procedures followed to protect against infection before and after surgery and that the same were followed in the surgery performed upon appellant.

Dr. Tepper's affidavit stated that he had studied the records of the Washoe Medical Center concerning Lockart and the depositions of Drs. Cantlon and Tappen and 'that your affiant, based upon his study and review of the records and depositions and his practical knowledge of what is usually and customarily done by physicians and surgeons under similar circumstances to those confronted by the defendants in this action, and upon his knowledge of the standard of conduct of surgeons and orthopedic surgeons practicing throughout the United States, states: * * *.' Dr. Tepper's affidavit enumerated the following as not 'in accordance with good practice throughout the United States': the manner in which Lockart had been prepared for surgery; the failure to...