Reeg v. Shaughnessy
| Decision Date | 20 January 1978 |
| Docket Number | No. 76-1790,76-1790 |
| Parties | Homer REEG, Plaintiff-Appellant, v. Dr. Dennis M. SHAUGHNESSY and Jack D. Fetzer, M.D., Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Larry A. Tawwater and Wayne Wells of Lampkin, Wolfe, Burger, McCaffrey & Norman, Oklahoma City, Okl., for plaintiff-appellant.
Calvin W. Hendrickson, Jr., Oklahoma City, Okl. (Robert C. Margo, Oklahoma City, Okl., on brief), for defendants-appellees; Pierce, Couch, Hendrickson & Short, Oklahoma City, Okl., of counsel.
Before SETH, HOLLOWAY and BARRETT, Circuit Judges.
In this diversity action Homer Reeg appeals from a jury verdict in favor of Dr. Dennis M. Shaughnessy, wherein Reeg had charged Shaughnessy with committing medical malpractice in diagnosis and treatment. Reeg specifically alleged that Dr. Shaughnessy had failed: to diagnose his (Reeg's) dislocated right hip; to treat this condition properly; and to refer him to a specialist. He further alleged that thereafter he had to undergo arthroplasty, an operation in which one's hip joint and socket are replaced.
The medical treatment spawning this action spanned a three-month period. On January 9, 1974, Reeg, then 64 years of age, was involved in a traffic mishap in which he sustained serious injury to his left leg, right hip and chest. At the emergency room of a hospital in Woodward, Oklahoma, a small northwestern Oklahoma community, Reeg was examined by Dr. Jack D. Fetzer, a general practitioner and associate of Dr. Shaughnessy. Dr. Fetzer ordered that X-rays be taken of Reeg's leg and hip. After the examination, Dr. Fetzer requested that Dr. Shaughnessy supervise Reeg's treatment, inasmuch as he had treated Reeg on a previous occasion and also because Dr. Shaughnessy had treated many orthopedic patients in Woodward during the course of his six-month association with Dr. Fetzer. When admitted to the hospital Reeg was described as being in a "shocky" condition, i. e., that although he had not actually gone into a state of shock, his vital signs indicated that he could easily do so if he were given an anesthetic or otherwise disturbed.
Dr. Shaughnessy examined the X-rays ordered by Dr. Fetzer and determined that Reeg had a comminuted left tibia and a displaced fractured acetabulum (the cup that holds the femur in place), but that there was no evidence of a dislocation of the femur ("thigh bone"). At that time Dr. Shaughnessy consulted with Dr. C. H. Williams, a radiologist who visited the Woodward Hospital two to three times a week to consult with local physicians. Dr. Williams confirmed Dr. Shaughnessy's diagnosis that there had been no dislocation of the femur. Because of Reeg's "shocky" condition, Dr. Shaughnessy chose to wait for two days until the condition had stabilized before treating specific injuries. He then operated to repair the broken left tibia. Dr. Shaughnessy prescribed a conservative treatment of confinement in bed for the injury to the right hip. Reeg remained hospitalized for three weeks, during which time he often complained of pain.
On February 1, Reeg was asked to try to put some weight on his right leg. This activity ceased when he complained of pain. On February 4, Dr. Shaughnessy ordered another X-ray on Reeg's right hip. At that time there was evidence of a slight dislocation of the femur. Dr. Shaughnessy chose to continue the conservative treatment he had begun, rather than to try to reduce the hip (replace the head of the femur back into the hip socket). Reeg was dismissed from the hospital on crutches. Dr. Shaughnessy did not instruct him to stay off the right leg and hip.
On February 24, Reeg visited Dr. Shaughnessy at his office where another X-ray of the right hip revealed that there was a dislocation of the femur. Dr. Shaughnessy tried to reduce the hip manually. He sent Reeg home with the advice to keep off his right leg.
An X-ray taken on March 11 showed that the hip was again out of the socket and Dr. Shaughnessy then performed a manual reduction of the hip joint. On April 1, Dr. Shaughnessy took the fifth X-ray of Reeg's hip. He noted that there was still a dislocation. On April 15, Dr. Shaughnessy referred Reeg to an orthopedic surgeon in a neighboring community who performed an open reduction on Reeg's hip. The following year Reeg underwent arthroplasty at Mayo Clinic.
At trial Reeg offered in evidence depositions of a number of expert witnesses. Using the "locality rule" as its guide, the trial court sharply limited the scope of the medical testimony to expert medical testimony and opinions relating to the degree of skill required by doctors in the same or similar communities.
On appeal Reeg alleges that the trial judge erred by: (1) applying the "locality rule," rather than the broader standard of "acceptable medical practice"; (2) allowing Dr. Shaughnessy to be judged by the standard of a general surgeon rather than that of an orthopedic surgeon; (3) refusing to grant a continuance when it became evident that the "locality rule" was to be used; and (4) refusing to admit portions of testimony given by deposition of an expert witness elicited during cross-examination by Dr. Shaughnessy's counsel.
Reeg contends that the trial court erred in holding that the " locality rule" was the law of Oklahoma with regard to the degree of care owed by a physician to his patients. The rule is said to have its origin in the 1880 case of Small v. Howard, 128 Mass. 131 (1880), ovrld, Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968), involving a suit against a doctor practicing in a small country community. The court held that the country doctor there sued "was bound to possess that skill only which physicians and surgeons of ordinary ability and skill, practising in similar localities, with opportunities for no larger experience ordinarily possess(ed) . . . ." 36 A.L.R.3d 425, 443 (1971). In a medical malpractice action the plaintiff must show what the requisite standard of care is for a physician and surgeon and that the doctor failed to act in accordance with that standard. Here, Oklahoma law must control in regard to the applicable standard, for in all diversity cases federal courts must apply the substantive law of the forum state. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1935).
In determining that the "locality rule" controlled herein, the trial court specifically relied on Runyon v. Reid, 510 P.2d 943 (Okl.,1973), in which the defendants included a psychiatrist and a general practitioner. There the court noted in discussing the standard of care required of a specialist:
A medical specialist owes a duty to his patient to exercise the degree of skill ordinarily employed under similar circumstances by similar specialist in the field in the same or similar communities. (Emphasis supplied.)
In Runyon the court utilized the performance of other doctors in the locality along with doctors in similar communities as the standard for acceptable medical practice. In so doing the Oklahoma Supreme Court effectively expanded on the "locality" standard by including the degree of skill practiced by doctors in "similar communities." Prior to Runyon, the standard of care had been that in "the general community." Eckels v. Traverse, 362 P.2d 680 (Okl.1961).
Reeg maintains that the broadened "locality rule" which was announced in Runyon is no longer viable because of Karriman v. Orthopedic Clinic, 516 P.2d 534 (Okl.1973), which was rendered seven months after Runyon. In Karriman orthopedic surgeons were sued on both negligence and breach of express warranty theories. Reeg contends that in Karriman the Oklahoma law was changed from a local medical standard of care to a much broader standard of accepted medical care, regardless of locality.
In Karriman a detailed, lengthy instruction for standard of care was given which did not contain language referring to the quality of practice in same or similar locality. The Oklahoma Supreme Court approved the instruction which read in part:
However, the instruction also provided that a doctor was still required to use that degree of care required of doctors in similar circumstances:
"It is his duty to possess and use the care ordinarily exercised in like cases by reputable members of his profession practicing in and under similar circumstances." (Emphasis supplied.)
(Id.)
Finally, the court instructed that an orthopedic surgeon was held to a standard of care of a careful orthopedic surgeon, without concern for locality:
An orthopedic specialist is required to exercise reasonable skill and care in treating a patient, which is that skill and care ordinarily used by careful and skillful orthopedic specialists.
(Id.)
Based on this instruction and other language contained in Karriman, Reeg urges us to hold that the Supreme Court of Oklahoma has discarded the "locality rule." In order to ascertain whether Reeg's interpretation is correct, we must discuss several factors.
In Karriman, the court relied in part on Kernodle v. Elder, 23 Okl. 743, 102 P. 138 (1909) and Champion v. Kieth, 17 Okl. 204, 87 P. 845 (1906), which do not refer to the "locality rule." We observe, however, that both of these decisions, as well as Karriman, are concerned, in part, with a medical malpractice action brought on a contractual theory. We also note that in Karriman there is no mention of either Runyon or Eckels in which the "locality rule" standard was so clearly articulated.
Karriman is not controlling here. Dr. Shaughnessy, unlike the...
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