Mantz v. Follingstad, 954

Citation84 N.M. 473,505 P.2d 68,1972 NMCA 164
Decision Date22 November 1972
Docket NumberNo. 954,954
PartiesGeorgia Ann MANTZ and Joseph C. Mantz, Plaintiffs-Appellants, v. A. H. FOLLINGSTAD, Defendant-Appellee.
CourtCourt of Appeals of New Mexico
Donald C. Turpen, Turpen, Hunt & Booth, Albuquerque, for appellants
OPINION

SUTIN, Judge.

Plaintiffs appeal from a judgment for defendant after jury verdict. The issues submitted to the jury were whether defendant departed from certain accepted standards of medical practice, limited to disclosing information. Other claims for relief were disallowed by the trial court.

Plaintiffs claim six grounds for reversal. The trial court erred: (A) In ignoring a pre-trial order which caused surprise and prejudice to plaintiffs. (B) In its application of the statute of limitations. (C) In disallowing several of plaintiffs' theories. (D) By undue restriction of plaintiffs' cross-examination of a doctor. (E) By denial of a motion for a new trial. (F) In taxing certain costs in favor of defendant.

We affirm the judgment.

A. Plaintiffs Claim the Trial Court Ignored the Pre-trial Order, and Tried the Case on the Pleadings in a Disorderly and Confusing Manner to the Surprise and Prejudice of Plaintiffs.

We disagree. Plaintiffs' complaint, filed September 5, 1969, consisted of 37 paragraphs subdivided into one cause of action with four counts, and a second and third cause of action adopting previous allegations by reference and adding others.

In determining claimed error on this appeal, we shall disregard the pleadings because pleadings are superseded by the pre-trial order. The pre-trial order becomes the pattern governing the lawsuit. Case v. Abrams, 352 F.2d 193 (10th Cir. 1965). It became the law of the case. Johnson v. Citizens Casualty Company of New York, 63 N.M. 460, 321 P.2d 640 (1958). This does not prevent the trial judge from changing his mind about applicable law to prevent perpetuating error rather than facilitating the trial of the lawsuit on the genuine issues of fact and the law of the case. Lumbermens Mutual Casualty Company v. Rhodes, 403 F.2d 2 (10th Cir. 1968), cert. den.394 U.S. 965, 89 S.Ct. 1319, 22 L.Ed.2d 567 (1969). Plaintiffs' legal theories for liability stated in the pre-trial order will be considered.

On October 29, 1971, a pre-trial order was made and entered pursuant to § 21--1--1(16), N.M.S.A.1953 (Repl. Vol. 4). No objections or exceptions or admissions were made. Plaintiffs did not state any allegations of their complaint nor any of their factual contentions. Thereafter, no motion was made to modify the order. Trial began three days later, on November 1, 1971.

The pre-trial order, insofar as the plaintiffs' claims are concerned, stated:

I. NATURE OF CLAIM:

Plaintiffs' claims herein arise out of medical treatment of Plaintiff, Georgia Mantz, by Defendant who was the treating physician for a period of approximately ten years. The specific claims of this action arose during the period of treatment from approximately September, 1965, to February, 1969. The legal theories of each party as well as each party's contended facts are set forth below.

In the pre-trial order, the following was stated:

III. CONTESTED FACTS

Plaintiffs contend that the doctors in Las Vegas were negligent, and failed to obtain a proper informed consent for that surgery.

Plaintiffs contend that Defendant's removal of her remaining breast was unnecessary, that Defendant failed, neglected and refused to explain to Mrs. Mantz that techniques were available to determine if the lump in her remaining breast was cancer before removing the breast and to explain to her about the alternatives open to her and the factors bearing upon these alternatives, and that if Defendant had given Mrs. Mantz this information, she probably would not have consented to have the breast removed, and that Defendant should have given Mrs. Mantz this information so that she could make an informed decision in the matter. Defendant knew that Mrs. Mantz had been told by doctors that she could not take hormones because of her cancer.

IV. PLAINTIFFS' CONTENTIONS

It is Plaintiffs' contention that the conduct of Defendant is actionable because Defendant:

1. Failed to disclose the truth to his patient before undertaking surgery;

2. Failed to obtain a proper history of his patient before undertaking surgery;

3. Failed to disclose facts to the patient necessary to permit an informed consent to treatment on the part of the patient;

4. Failed to diagnose the patient's menopausal symptoms and condition;

5. Failed to prescribe hormone therapy (primarily estrogen) as soon as needed by the patient;

6. Failed to use recognized procedures for the diagnosis and verification of cancer before operating on the patient's breast in 1965;

7. Improperly diagnosed the patient's condition as cancer in 1965;

8. Failed to consult competent specialists about the patient's medical needs she was incompetent to handle;

9. Intentionally inflicted severe mental suffering and anguish upon Plaintiffs;

10. Misrepresented the patient's condition to Plaintiffs;

11. Committed and (sic) assault and battery upon the person of the patient;

12. Concealed the truth from Plaintiffs so as to destroy their causes of action against Defendant and against the doctors in Las Vegas.

The Plaintiffs' legal theories are: (a) medical malpractice; (b) breach of express or implied contract; (c) misrepresentation; (d) assault and battery; (e) misrepresentation (sic); (f) fraudulent concealment; (g) intentional infliction of severe mental suffering or anguish; (h) interference with beneficial relations; (i) loss of consortium; (j) punitive damages (Plaintiffs contend that Defendant's conduct was willful or wanton and in reckless disregard of Plaintiffs' rights and that the circumstances were aggravated); (k) Loss of enjoyment and pleasures of life and society.

Plaintiffs made no contention under medical malpractice that defendant "departed from the recognized standards of medical practice in the community, or must have neglected to do something required by those standards." Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971); Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964). This theory was not supported by any facts, contested or otherwise.

At the beginning of trial, and in argument in brief in chief, plaintiffs claim the trial court ignored theories of fraudulent concealment, estoppel, continuing care and treatment, the discovery rule, and continuing tort. In the pre-trial order, none of these contentions were even mentioned, except fraudulent concealment, but this theory was not connected with medical malpractice or assault and battery.

The trial court dismissed the legal theories of medical malpractice and assault and battery because they were barred by the statute of limitations.

The trial court did not, under plaintiffs' contention, ignore the pre-trial order in ruling out medical malpractice and assault and battery as stated in the order.

On November 1, 1971, the case came on for trial. The trial court sought to understand the theory of each of four counts of the first cause of action, as well as the second and third causes of actions, in order to rule on the defense of the statute of limitations stated in the pre-trial order. The trial court wanted the theories of plaintiffs' complaint cleared for his own personal information. Due to the method used by plaintiffs in alleging 37 paragraphs of the complaint, this analysis by the trial court was justified. The trial court did not try the case on the pleadings in a disorderly and confusing manner.

We must remind trial lawyers that a claim for relief 'shall contain . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief,' that 'each averment of a pleading shall be simple, concise and direct.' (Emphasis added.) Section 21--1--1(8)(a), (e), supra. The word 'shall' is mandatory. Section 1--2--2(I), N.M.S.A. (Repl.Vol. 1).

B. The Trial Court did not Err in its Application of the Statute of Limitations.

Plaintiffs claim the trial court erred in its application of the statute of limitations by dismissing certain of plaintiffs' theories for affirmative relief prior to the close of plaintiffs' case. This argument is divided into five categories: (a) the dismissal of medical malpractice and assault and battery was premature; (b) the exclusion of evidence pertained to the remaining issues still in the lawsuit; (c) the trial court applied the same error to plaintiffs' argument to the jury; (d) the trial court repeated the same error in its jury instructions; (e) at the close of plaintiffs' case, the trial court dismissed plaintiffs' cause of action for breach of contract because the gist of the action was one of personal injuries and was subject to the three year statute of limitations.

(a) Dismissal was not Premature.

The trial court dismissed plaintiffs' claims of assault and battery and negligent medical malpractice at the beginning of trial because defendant removed Mrs. Mantz' right breast by a simple mastectomy on September 8, 1965, but the complaint was not filed until September 5, 1969, more than three years later.

These facts were admitted and not contested in the pre-trial order. All discovery had been completed by the time of the pre-trial order.

The law is clear that an action for injuries to the person by assault and battery and for negligent medical malpractice must be brought within three years after the accrual of the cause of action. Section 23--1--8, N.M.S.A.1953. In medical malpractice, this cause of action accrued at the time of the wrongful act causing the injury. The statute of limitations was not tolled during the period of medical treatment. Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963). Where the facts are not disputed, the question whether the case is within the bar...

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