Meeks v. Marx

• Decision Date: 03 June 1976
• Docket Number: No. 1368--II,1368--II
• Citation: 550 P.2d 1158,15 Wn.App. 571
• Parties: Hubert A. MEEKS, Appellant, v. R. MARX, Respondent.
• Court: Washington Court of Appeals

Page 571

15 Wn.App. 571

550 P.2d 1158

Hubert A. MEEKS, Appellant, v. R. MARX, Respondent.

No. 1368--II.

Court of Appeals of Washington, Division 2.

June 3, 1976.

Neil J. Hoff, of Hoff & Cross, Tacoma, for appellant.

Allan R. Billett, of Comfort, Dolack, Hansler, Hulscher, Rosenow, Burrows & Billett, Tacoma, for respondent.

REED, Judge.

Plaintiff Hubert A. Meeks appeals from a judgment of Pierce County Superior Court dismissing his medical malpractice complaint following a jury verdict in favor of defendant, Dr. Ralph Marx.

Plaintiff, a 62-year-old man, tending to obesity and with a history of diabetes and arteriosclerosis, first saw Dr. Marx, an orthopedic surgeon, in June of 1968 for treatment of a broken ankle. The treatment was successful and plaintiff did not see the doctor again until October 1968 when he experienced pain in his right knee. On this occasion Dr. Marx noted the presence of fluid on the knee and x-rays revealed moderate osteoporosis. ¹ On October 11, 1968, plaintiff fell at home, sustaining an oblique fracture of the distal portion of the right femur. On October 12 Dr. Marx performed open reduction surgery and affixed the bone ends with multiple screws. Plaintiff was discharged from the hospital November 9, 1968.

Despite continued observation and treatment, the leg did not heal properly, and on February 19, 1969, Dr. Marx again operated to install a metal plate with tibial bolt and perform bone grafts, after which plaintiff remained in the hospital until March 29, 1969. During this second surgery tissue samples were removed and submitted for laboratory analysis; a microscopic examination of the tissue produced negative results but bone fragments contained therein were subjected only to gross examination, the laboratory advising they would be retained for any further testing desired. Dr. Marx requested no further tests.

Approximately 10 days after the second operation plaintiff developed a staphylococcus infection at the surgery site causing him pain, discomfort, and drainage after leaving the hospital, and requiring his readmission April 1, 1969. The infection was again treated with antibiotic drugs and he was released for home care April 24, 1969. Sometime in April a nurse observed a 'pulsatile' in the midline of the abdomen; this was noted on plaintiff's chart, but Dr. Marx did not observe the entry nor did he ever diagnose presence of an abdominal aneurysm. He testified discovery of such an aneurysm, if it existed, would not have prompted any change in treatment.

In May 1969 plaintiff complained of discomfort in his knee and was readmitted to the hospital May 6, 1969 for removal of the tibial bolt. This was done on May 7, Dr. Marx removing the bolt through a small incision in the side of the leg opposite from the fracture site. Plaintiff remained in the hospital for further treatment of the infection until June 25, 1969. Sometime in April or May Dr. Marx 'suspected' the presence of osteomyelitis but x-rays and other tests were completely negative except for a hospital report of May 28, 1969, interpreting a sinogram (dye injection) showing:

No progressive involvement of bone by osteomyelitis is seen although chronic low-grade osteomyelitis may certainly be present . . .

A second sinogram performed in defendant's office in June 1969 revealed no evidence whatever of bone involvement.

Dr. Marx testified his suspicions of osteomyelitis were thus never confirmed, and he elected not to reopen the leg and go into the fracture site in search of it because this would almost certainly introduce the infection to the bone if it were not already there. He further testified treatment would involve removal of the metal plate, resulting in nonunion of the fracture, a procedure described as 'life-threatening.' Dr. Marx never informed plaintiff of his 'suspicions' of osteomyelitis, but continued to treat the infection with drugs and shallow surgery. In August 1969, because x-rays revealed the fracture had not reunited properly and because the infection persisted, Dr. Marx referred plaintiff to University of Washington Hospital in Seattle for further diagnosis and treatment. Plaintiff was admitted immediately to University Hospital, and approximately 2 weeks later the afflicted leg was amputated. ²

Plaintiff brought suit in Pierce County Superior Court, contending defendant was negligent in not diagnosing osteomyelitis, in not informing plaintiff he probably had that disease, in failing to treat plaintiff properly, and in abandoning plaintiff as a patient. At trial plaintiff relied entirely for medical proof of defendant's negligence on the testimony of Dr. Alan H. Sobul, a general practitioner with a pathology background, but with no special training or experience in orthopedics or surgery. Dr. Sobul's testimony was based almost entirely on medical texts and authorities he had read at the request of plaintiff's attorney solely in order to testify. He admitted on cross-examination he was not familiar with the ordinary standard of medical care for orthopedic surgeons during the treatment period of 1968--1969. Defense witnesses, in addition to Dr. Marx, were two Tacoma physicians, one specializing in thoracic and vascular surgery and the other in orthopedic surgery. Both testified that Dr. Marx had not deviated from the proper standards of medical care and treatment in his ministrations to plaintiff. The jury returned a verdict for defendant and this appeal followed.

Plaintiff's assignments of error are: (1) the trial court erred in not properly instructing the jury on the standard of care owed by a physician to his patient; (2) the court erred in not instructing on the theory of res ipsa loquitur; (3) the court erred in rejecting plaintiff's proposed instructions on a physician's duty to (a) discover a condition, (b) inform his patient of treatment risks, and (c) stay abreast of progress and modern treatment methods; and (4) the court erred in restricting the scope of pretrial discovery depositions of medical experts and in setting witness fees therefor. We resolve all issues raised by these assignments in defendant's favor and affirm the judgment.

Plaintiff first asserts the court's instruction No. 7 erroneously defined the geographical locality to be considered in determining the appropriate standard of care by limiting it to Pierce County when it told the jury:

You are instructed that the defendant should be held to the standards of practice of the average physician and surgeon specializing in orthopaedic surgery in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of a person such as the plaintiff living in the pierce County area during the time involved.

This instruction correctly stated the law. In Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967), our Supreme Court abandoned the 'locality rule' as having 'no present-day vitality' except as one element to be considered in determining the standard of care and skill to be expected of a physician. In its stead the court, speaking through Justice Weaver, expanded the area to be looked to as follows:

A qualified medical or dental practitioner should be subject to liability, in an action for negligence, if he fails to exercise that degree of care and skill which is expected of the average practitioner in the class to which he belongs, acting in the same or similar circumstances. This standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient.

Pederson v. Dumouchel, supra at 79, 431 P.2d at 978. Instruction No. 7 is couched in the exact language of the Pederson rule, translated into terms specifically applying to plaintiff as a resident of Pierce County. As given, the instruction permitted the jury to properly consider evidence of the standard of care not only in Pierce County but in any center, such as Seattle, Portland, Oregon, or even San Francisco, California, if evidence established such cities to be 'readily accessible centers' for treatment of a Pierce County resident. Plaintiff contends, although he proposed no instruction to that effect, that there should be no restriction whatever on the area to be canvassed and that it should extend 'throughout the nation.' We think not, because, as stated in Pederson at page 79, 431 P.2d at page 978:

In England, the same standard is applicable throughout the country. The extent of our country is such, however, that we hesitate to fix a definite geographic limit upon the standard of care--be it statewide or expanded to the Pacific Northwest, as suggested by plaintiff's requested instruction.

The very value of the Pederson rule lies in its amenability to contraction or expansion in each case, depending on the proofs adduced. We therefore decline any invitation to define the area in geographical terms, be they broad or narrow.

Plaintiff next claims instruction No. 7 imposed an incorrect standard of care, asserting that under Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981 (1974), a higher standard than 'ordinary care' is required of a physician in every case. Plaintiff argues that Dr. Marx could have diagnosed the presence of osteomyelitis either by reopening the leg and going down to the bone, or by subjecting the bone samples to further analysis. In Helling the court imposed a higher standard of care upon an opthalmologist who failed to give a simple pressure test which would have revealed the presence of glaucoma. In that case, even though the ordinary standard of care did not dictate administration of such a test to persons under 40 years of age, in the absence of other positive symptoms of glaucoma, the court imposed liability as a matter of law, saying at page 518, 519 P.2d at page 983:

There is no judgment factor involved, and there is no doubt...