Orcutt v. Miller

• Citation: 595 P.2d 1191,95 Nev. 408
• Decision Date: 07 June 1979
• Docket Number: No. 9931,9931
• Parties: Terry ORCUTT, Appellant, v. Russell F. MILLER, M.D., Ltd., a Nevada Corporation, and Russell F. Miller, Individually and as agent, servant and/or employee of Russell F. Miller, M.D., Ltd., Respondents.
• Court: Supreme Court of Nevada

Page 1191

595 P.2d 1191

95 Nev. 408

Terry ORCUTT, Appellant, v. Russell F. MILLER, M.D., Ltd., a Nevada Corporation, and Russell F. Miller, Individually and as agent servant and/or employee of Russell F Miller, M.D., Ltd., Respondents.

No. 9931.

Supreme Court of Nevada.

June 7, 1979.

Rehearing Denied July 31, 1979.

C. A. "Jack" Nelson, Chartered, Las Vegas, for appellant.

Rose, Edwards, Hunt & Pearson, Ltd., Las Vegas, for respondents.

OPINION

MANOUKIAN, Justice:

In 1969 appellant, Terry Orcutt, consulted respondent, Dr. Miller, complaining of nausea, vomiting, diarrhea and dizziness. Orcutt remained under Dr. Miller's care for a period of nineteen months, during which time he was admitted for treatment on three occasions to Sunrise Hospital in Las Vegas. Appellant's condition progressively worsened, and, on July 8, 1971, the patient traveled by air ambulance to Santa Barbara, California where, immediately upon his arrival, the diagnosis of toxic megacolon was made, and within two hours thereafter, a colectomy performed.

Subsequently, on June 26, 1973, appellant filed suit in the district court for compensatory and punitive damages alleging respondent was guilty of malpractice. Respondent, by answer, denied all of the material allegations of the complaint. Following two unsuccessful efforts to depose respondent (the result of respondent's failure to appear), appellant took Dr. Miller's deposition pursuant to a court order, and secured the records of Sunrise Hospital pertaining to the treatment appellant received while a patient there.

On June 3, 1976, respondent filed a motion for summary judgment pursuant to NRCP 56(b), on the grounds that there was no genuine issue as to any material fact in the action, and that respondent was entitled to judgment as a matter of law. In support of his motion, Dr. Miller relied upon his own deposition and that of Dr. Kenneth Smith of Las Vegas, an American board certified specialist in surgery, now retired. In opposition to respondent's motion, appellant proffered the affidavit of Dr. Thomas J. Imperato, an American board certified specialist in internal medicine and the then acting chief, section of gastroenterology at the University of California, Davis, School of Medicine, wherein Dr. Imperato stated that in his opinion appellant's condition "may have been precipitated by 1) poor medical care and 2) the injudicious use of opiates during an acute flare up of the patient's colitis." Appellant's expert concluded that Orcutt had not been given "optimal therapy." ¹ Dr. Imperato later sought leave to amend his affidavit to reflect his opinion that appellant's condition was "probably" precipitated by Dr. Miller's poor medical care. Appellant offered the amended affidavit but the trial judge summarily refused to consider it. Accordingly, the court granted Dr. Miller's motion for summary judgment, finding specifically that appellant had failed to establish a breach of the accepted standard of care.

Alleging the trial court erred in granting respondent summary judgment and in refusing to allow the amended affidavit of Dr. Imperato, Orcutt appealed. In ruling on the propriety of the summary judgment, two issues confront us: (1) whether the trial court abused its discretion in refusing to consider the amended affidavit of appellant's medical expert; and (2) whether the locality rule should apply when the defendant doctor is a board certified specialist.

1. The amended affidavit.

Appellant contends that because the amended affidavit of Dr. Imperato raises a genuine issue concerning respondent's negligence, it should have been considered by the trial court, and respondent's motion for summary judgment should have been denied. We agree.

In a medical malpractice action a plaintiff confronted with a motion for summary judgment has the obligation to establish (1) the accepted standard of medical care or practice, (2) that the doctor's conduct departed from the standard, and (3) that his conduct was the legal cause of the injuries suffered. Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961).

Summary judgment is proper when it appears 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." NRCP 56(c). On appeal, we must view the facts and the inferences arising therefrom in the light most favorable to the party against whom the motion was granted. Potter v. Mutual Benefit Life Ins. Co., 93 Nev. 90, 560 P.2d 914 (1977); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

The amended affidavit of appellant's expert, submitted on the date set for hearing of respondent's motion for summary judgment, ² contains persuasive allegations to the effect that Dr. Miller's treatment "probably" precipitated appellant's ultimate condition. Even if the original affidavit was insufficient to raise a genuine issue as to respondent's negligence, the amended affidavit certainly did, and in our view, the trial judge committed reversible error by failing to consider it, notwithstanding appellant's procedural derelictions in presenting the affidavit. A claimant's day in court and right to a trial on the merits are too vital to be lost the result of circumstances such as those presently before us, especially in light of the preliminary, yet harsh, nature of the summary judgment herein imposed and the failure on the part of respondent to demonstrate any prejudice.

NRCP 56(e) authorizes the trial court to permit amendment or supplementation of affidavits, and on this record, we hold that respondent waived the perceived untimeliness of the proffered amended affidavit, and that the trial judge erred in refusing to consider it. We turn now to consider the applicable standard of care.

2. The standard of care.

We are asked to reconsider the applicable standard of care in medical malpractice cases. In granting summary judgment for respondent, the lower court relied on the strict locality rule, announced in Lockart v. Maclean, supra, and followed in Foreman v. Ver Brugghen, 81 Nev. 86, 398 P.2d 993 (1965). See Bakerink v. Orthopaedic Associates, Ltd., 94 Nev. 428, 581 P.2d 9 (1978). Appellant questions whether the locality rule should continue as the rule of law applicable in this case.

In Lockart v. Maclean, supra, the locality rule was said to require that a medical witness seeking to give opinion evidence in a malpractice action must first show his knowledge of the standards prevailing in the particular locality. Id. 77 Nev. at 215, 361 P.2d 673. ³ Since Lockart, most modern courts have abandoned the strict locality rule, at least with respect to American Medical Board certified specialists. See, for example, Shilkret v. Annapolis Emergency Hospital Ass'n, 276 Md. 187, 349 A.2d 245 (1975); Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); Naccarato v. Grob, 180 N.W.2d 788 (Mich.1970); Belk v. Schweizer, 268 N.C. 50, 149 S.E.2d 565 (1966); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166 (1973); Blair v. Eblen, 461 S.W.2d 370 (Ky.App.1970); Pederson v. Dumouchel, 431 P.2d 973 (Wash.1967).

Historically, the strict locality rule is based on the rationale that there exists gross inequality between physicians practicing in large urban areas and those practicing in more remote rural communities. The policy behind the rule was to prevent the small town practitioner from being held to the standard of practice of the more sophisticated urban areas. See Smothers v. Hanks, 34 Iowa 286 (1872); Tefft v. Wolcox, 6 Kan. 46 (1870); see also Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408 (1969). The rule has been sharply criticized by modern courts as insulating from malpractice liability any physician who is the sole practitioner in a community, Waltz, supra, at 411, and as engendering a "conspiracy of silence" which effectively precludes the possibility of obtaining expert medical testimony by one doctor against another in a given medical community. Note, 40 Fordham L.Rev. 435, 438 (1971); Shilkret v. Annapolis Emergency Hospital Ass'n, supra. The reasons underlying the strict locality rule a century ago simply do not justify its continued existence today, see Note, An Evaluation of Changes in the Medical Standard of Care, 23 Vand.L.Rev. 729 (1970).

Whatever the continuing validity of the locality rule in cases involving general practitioners, a question we find unnecessary to here decide (since respondent and appellant's expert are both board certified specialists), we hold that it is not the standard to be applied to board certified specialists. In this age of ubiquitous national communication networks and increasing standardization of medical training, the underpinnings of the locality rule are extremely doubtful. Board certified specialists should be held to national standards of the specialty....