Pharmaseal Laboratories, Inc. v. Goffe

• Citation: 1977 NMSC 71,90 N.M. 753,568 P.2d 589
• Decision Date: 01 September 1977
• Docket Number: Nos. 11221,11223,s. 11221
• Parties: PHARMASEAL LABORATORIES, INC., Petitioner, v. William GOFFE, Respondent. William GOFFE, Petitioner, v. PHARMASEAL LABORATORIES, INC., a California Corporation, Dr. J. Hunt Burress and Presbyterian Hospital Center, Inc., a New Mexico Corporation, Respondents.
• Court: Supreme Court of New Mexico

Page 589

568 P.2d 589

90 N.M. 753

PHARMASEAL LABORATORIES, INC., Petitioner, v. William GOFFE, Respondent.

William GOFFE, Petitioner, v. PHARMASEAL LABORATORIES, INC., a California Corporation, Dr.

J. Hunt Burress and Presbyterian Hospital Center,

Inc., a New Mexico Corporation,

Respondents.

Nos. 11221, 11223.

Supreme Court of New Mexico.

Sept. 1, 1977.

Rehearing Denied Sept. 14, 1977.

Toulouse, Krehbiel & DeLayo, James R. Toulouse, Albuquerque, for William Goffe

Shaffer, Butt, Jones, Thornton & Dines, James M. Dines, Civerolo, Hansen & Wolf, Richard C. Civerolo, Johnson, Paulantis & Lanphere, Albuquerque, for Pharmaseal et al.

OPINION

EASLEY, Justice.

Plaintiff (Goffe) brought suit against his physician (Dr. Burress) and his physician's employer-hospital (Presbyterian) for malpractice and alleged a claim for product liability against the manufacturer of the medical equipment used (Pharmaseal). The trial court granted summary judgment in favor of all three defendants. The Court of Appeals affirmed summary judgment as to Dr. Burress and Presbyterian and reversed as to Pharmaseal.

Both Goffe and Pharmaseal petitioned for certiorari. We granted both petitions and reverse the decision of the Court of Appeals as to Dr. Burress and Presbyterian and affirm its decision with regard to Pharmaseal, holding that summary judgment was not proper as to any of the defendants.

With regard to the petition of Goffe, the principle issue is whether, in assessing the quantum of evidence bearing on summary judgment, our courts shall adhere to the "strict locality" rule, that is, whether they can consider only the opinions of doctors from a particular locality regarding the standard of care owed by physicians in that locality or whether they may also consider the opinions of doctors who can testify as to the standard of care of doctors in other localities practicing under similar circumstances. Another issue is whether negligence on the part of Dr. Burress and Presbyterian may be demonstrated by facts which can be evaluated by resort to common lay knowledge, instead of solely by expert medical testimony.

As to the complaint against Pharmaseal for defective equipment, the principle issue is whether the record supports the conclusion of the Court of Appeals that there is a genuine issue as to a material fact regarding the liability of Pharmaseal.

Facts

On August 26, 1971, Goffe was admitted into Presbyterian Hospital for the treatment of an intestinal obstruction. He was treated by Dr. Burress. The treatment consisted of inserting a K-2R Kaslow intestinal tube, manufactured by Pharmaseal, through his nose. To help in inserting the tube into the intestine, it was weighted with a small rubber balloon, also manufactured by Pharmaseal, containing metallic mercury. Dr. Burress poured an unknown amount of mercury into the balloon and tied it to the end of the tube. The tube was inserted through Goffe's nostril, down through his stomach, and was maneuvered into his intestines. On August 30, 1971, Dr. Burress started to withdraw the tube. There was testimony that he pulled the tube fast, jerked it several times and forcefully pulled on the tube as though it had been stuck, thereby extracting it. Upon removal, Dr. Burress realized the balloon containing the mercury had broken. As a consequence, Goffe inhaled an undetermined amount of mercury into his lungs. X-rays were taken and then he was returned to his own room where he was placed on a tilt table with his head lower than his feet. Dr. Burress asked hospital employees to assist in postural drainage of the mercury. The hospital employees pounded on Goffe's back for several hours in an attempt to remove the mercury. His head constantly hit the foot of the bed and he experienced chest pain. The next morning he suffered a myocardial infarction.

The record shows that Dr. Burress and the hospital adduced expert testimony from Dr. Simms, that Dr. Burress had exercised that degree of care required by doctors in Albuquerque.

Plaintiff argues that he introduced evidence to the contrary (and thus put the issue of Dr. Burress's negligence in controversy) by the testimony of Dr. Ormsby, an internist practicing in the State of Washington. The doctor stated in his affidavit:

That the practice of medicine in the State of Washington is of the same standard of care as practiced by physicians in the City of Albuquerque, State of New Mexico.

That he has reviewed the medical records of the incident which occurred in Presbyterian Hospital on August 30, 1971.

That it is his opinion that the combination of the inhalation of mercury resulting from the rupturing of the naso-gastric tube, plus the procedure used to extract the mercury, resulted directly in Mr. Goffe suffering an acute myocardial infarction.

Mr. Goffe related to me a description of the incident and I have reviewed the medical records furnished to me by Presbyterian Hospital; if the attending physician vigorously pulled against the obstruction to such a degree as to cause the balloon to rupture, it is my opinion that such action was not acceptable medical practice.

It is my further opinion that if the attending physician did not vigorously pull against the obstruction to such a decree (sic) as to cause the balloon to rupture, then the naso-gastric tube would have been defective.

Summary Judgment

Summary judgment is a drastic remedy to be used with great caution. Zengerle v. Commonwealth Ins. Co., 60 N.M. 379, 291 P.2d 1099 (1955). This is demonstrated by our rule under which summary judgment is improper, if, after resolving all reasonable doubts in favor of the opponent, the evidence adduced by the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits shows that there was a genuine issue as to any material fact. N.M.R.Civ.P. 56(c) (§ 21-1-1(56)(c), N.M.S.A.1953). If Goffe has shown one genuine issue as to any material fact, then summary judgment against him cannot be granted. Skarda v. Skarda, 87 N.M. 497, 536 P.2d 257 (1975); Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

This court in Goodman v. Brock, id., quoted with favor from 3 Barron & Holtzoff, Federal Practice and Procedure, § 1234 at 124-126 (rev. Wright 1958) in adopting the rule to be applied in determining whether a motion for summary judgment should be granted:

(T)he party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. If there are such reasonable doubts, summary judgment should be denied. A substantial dispute as to a material fact forecloses summary judgment.

Interpretation of Dr. Ormsby's Testimony

A threshold question is whether any consideration is to be given to Dr. Ormsby's testimony on the issue of the standard of care that should have been exercised by Dr. Burress. The Court of Appeals concluded that his testimony contained nothing as to the standard of care or departure from that standard. "The most that can be said about the testimony is that it presents an equal choice of two mere possibilities." We disagree.

If we do not adhere to the "strict locality" rule, Dr. Ormsby's testimony as to the standard of care of doctors in Washington is also evidence of the standard of care owed by doctors in Albuquerque. He testified that the standards he is familiar with are the same as those used by doctors practicing under similar circumstances in Albuquerque. The standard is that doctors, in extracting such tubes, do not pull so hard as to cause the balloon to break (absent some defect). Dr. Ormsby states that breakage is not a normal occurrence and that if it occurred and the tube was not defective, then the doctor vigorously pulling it out was not following acceptable medical practice.

The defendants point out that, in his deposition, Dr. Ormsby equivocated on the questions bearing on wrongdoing by Dr. Burress and whether he was in violation of reasonable standards of care. However, when he was asked his opinion as to the cause of Goffe's heart attack he stated ". . . it was caused by, in my opinion, two events. The rupture of a balloon containing mercury with inhalation into the lungs, and the subsequent unnatural, unphysiologic, perhaps well-meant or well-intended efforts to remove it." This court cannot erase the record; and after examining his testimony in its entirety and considering the test elucidated in Goodman v. Brock, supra, we hold that the evidence was sufficient to create a reasonable doubt as to the existence of a genuine issue, which precludes summary judgment.

Evidence of Standard of Care

Goffe contests the holding of the Court of Appeals that no issue regarding the defendant physician's negligence was raised because such negligence must be shown by expert testimony regarding the standard of care of physicians in the particular locality. If Dr. Ormsby's testimony cannot be considered, then summary judgment would be proper, provided lay testimony bearing on negligence is also unavailable. The Court of Appeals relied on language in our decision in Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964):

Before a physician or surgeon can be held liable for malpractice in the treatment of his patient he must have departed from the recognized standards of medical practice in the community, or must have neglected to do something required by those standards.

Id. at 448, 389 P.2d at 213 (emphasis added).

This rule has been described as the so-called "strict locality" rule. N.M.U.J.I. Civ. 8.1, which was adopted after the decision in Cervantes, id., and became effective on September 1, 1966 states:

In (treating) (operating upon) (making a diagnosis of) the plaintiff, the doctor was under the duty to possess and apply the knowledge and to use the skill and care that was ordinarily used by reasonably well qualified doctors of the same field of medicine as that of the defendant practicing under similar circumstances, giving due consideration to the...