Matson v. Naifeh

• Decision Date: 19 April 1979
• Docket Number: No. 13938,13938
• Citation: 595 P.2d 38,122 Ariz. 360
• Parties: Albert A. MATSON, Appellant, v. George S. NAIFEH, M. D., Appellee.
• Court: Arizona Supreme Court

Page 38

595 P.2d 38

122 Ariz. 360

Albert A. MATSON, Appellant, v. George S. NAIFEH, M. D., Appellee.

No. 13938.

Supreme Court of Arizona, In Division.

April 19, 1979.

Rehearing Denied May 22, 1979.

Pain & Julian by Fred J. Pain, Harry L. Howe, Phoenix, for appellant.

Jones, Teilborg, Sanders, Haga, Parks & Stephenson by Frank A. Parks, Phoenix, for appellee.

STRUCKMEYER, Vice Chief Justice.

This appeal by Albert Matson is from an unfavorable jury verdict in an action for medical malpractice and from the denial of his motion for a new trial. Judgment reversed.

Appellant was under treatment by Dr. Jerry Wetherell for occlusive arterial disease from October, 1972 through January, 1974. During this time, Matson underwent eight femoral arteriograms. In an arteriogram, the patient's artery is punctured with a hollow needle and a wire with a soft tip is inserted into the blood vessel through the needle. The needle is then removed, and a catheter, generally a piece of polyethylene tubing, is threaded over the guide wire to the area of the suspected occlusion. Dye is injected through the catheter, enabling the radiologist to view the adjacent arterial system by X-ray and pinpoint an occlusion.

On December 2, 1973, appellant entered Maryvale Samaritan Hospital under Dr. Wetherell's direction. Dr. Wetherell, fearing an impending occlusion of the extracranial vessels of the aortic arch, ordered another arteriogram. Because the groin area had been the site of previous femoral arteriograms, Dr. Wetherell urged Dr. Naifeh, a specialist, to perform an axillary (armpit) arteriogram. Dr. Naifeh agreed, even though he was aware that appellant was taking Coumadin, a chemical which impedes the normal clotting mechanism of the blood.

When Dr. Naifeh tried to insert the guide wire into the brachial artery, it would only advance about six inches. He therefore inserted a catheter through which there was injected a small amount of dye into the artery, and by this means determined that the guide wire had lodged in the wall of the artery. Dr. Naifeh withdrew the catheter and guide wire, and put manual pressure on the area of the puncture to stop the bleeding. However, a large hematoma (collection of blood under the skin) formed at the site of the entry wound. Dr. Naifeh telephoned Dr. Wetherell and told him that the attempted arteriogram was unsuccessful and that a hematoma had formed. Dr. Wetherell examined appellant and decided the hematoma did not require surgery. Appellant was released from the hospital two days later. ¹

After appellant left the hospital, he continued to have pain in his right arm and his thumb on his right hand. It was necessary to elevate his arm to relieve the pressure on the swelling under the arm. Late in December, appellant entered the hospital for further vascular surgery. Dr. Wetherell entered the following notation in the hospital records on December 27, 1973:

" * * * Principal complaint is discomfort in right arm. During previous admission he had undergone attempt at right axillary artery catheterization for angiograph. However, this route was unsuccessful. He developed a large hematoma of the axilla and he complained of persistent discomfort mainly involving the shoulder and the back of the upper arm. He was taking a fair amount of narcotic for this. He was seen in the office periodically and advised that this would probably absorb and the pain would go away. When he came into the office yesterday he said that all of the pain was gone out of his shoulder and arm and had gone to his calf. He did insist that he had been provided a heating pad for the shoulder postoperatively. This morning he complains that he cannot abduct the forearm with the elbow flexed. The hematoma in the axilla is considerably smaller than it had been, but there is still a fair amount of induration. Will get orthopedic opinion."

On January 4, 1974, Dr. Wetherell and Dr. William C. Brainard operated on appellant to remove the scar tissue surrounding the nerves in the axilla area resulting from the hematoma. Appellant filed this complaint against Dr. Wetherell, Dr. Naifeh, and Maryvale Samaritan Hospital, alleging negligence resulting in permanent nerve damage and a want of informed consent. All defendants except Dr. Naifeh were dismissed from the case prior to trial. The jury found in Dr. Naifeh's favor, and this appeal followed.

Appellant first argues that the trial court erred both when it refused to direct a verdict against Dr. Naifeh on the issue of liability and when it denied his motion for a judgment notwithstanding the verdict.

A verdict may be directed in favor of one party only where no evidence is introduced which would justify a reasonable person returning a verdict for the opposing party. Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); Adroit Supply Co. v. Electric Mutual Liability Insurance Co., 112 Ariz. 385, 542 P.2d 810 (1975). We said in Reader v. General Motors Corp., 107 Ariz. 149, 154, 483 P.2d 1388, 1393 (1971):

"It is well settled that a motion for a directed verdict admits the truth of all competent evidence introduced by the party opposing the motion, including all reasonable inferences to be drawn therefrom. Such evidence must be viewed most strongly against the movant and most favorably for the opposition. If, considering all the facts and circumstances, there is a reasonable likelihood that reasonable men may reach different conclusions, the question of fact in issue is to be decided by the jury. Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803 (1959); Vigil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967). * * * "

We think it is sufficient to say after examining the evidence in this case that a question was raised as to whether appellant's nerve damage was attributable to compression of the brachial plexus by the hematoma or to a "brachial stretch injury" occasioned by a later examination of appellant where he was "spread-eagled" on an operating table. Reasonable persons could have reached different opinions on this question. Hence, the motions were properly denied.

Appellant also argues that the trial court erred when it instructed the jury:

"You are instructed that you, as triers of the facts, are necessarily dependent on those versed in medical science and practice in matters not within the common knowledge of laymen. Under such circumstances you are not at liberty to set up lay standards and disregard the prevailing medical standards as presented through the expert witnesses by a preponderance of the evidence. Therefore, in determining whether or not, in this case, Dr. Naifeh is chargeable with the failure to possess or use reasonable skill and care in accordance with the standards I have given you, you are not to be governed by opinions of your own as laymen in disregard of the expert evidence in the case."

Appellant argues that this instruction was erroneous because the jurors could have found from their own common sense that Dr. Naifeh was negligent.

We have repeatedly held that a physician's negligence must be shown by expert medical testimony unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Pendleton v. Cilley, 118 Ariz. 84, 574 P.2d 1303 (1978); Harvey v. Kellin, 115 Ariz. 496, 566 P.2d 297 (1977). The negligence alleged here was Dr. Naifeh's failure to use due care in the performance of the axillary arteriogram, the postoperative treatment of appellant, and the failure to inform either appellant or Dr. Wetherell of the possible complications which could result from the failure to give immediate postoperative treatment for the hematoma. From the simple recitation of the character of the negligence charged, Dr. Naifeh's acts were not so grossly negligent that laymen of their common knowledge could reasonably find the doctor guilty of malpractice.

The test for medical specialists was established in Kronke v. Danielson, 108 Ariz. 400, 403, 499 P.2d 156, 159 (1972):

" * * * for a plaintiff to recover in a medical malpractice case involving a specialist, he must prove that the defendant...