Revels v. Pohle, 7511

• Decision Date: 28 September 1966
• Docket Number: No. 7511,7511
• Citation: 101 Ariz. 208,418 P.2d 364
• Parties: Betty Jo REVELS and Millard Revels, her husband, Appellants, v. Dr. Ernest E. POHLE, Appellee.
• Court: Arizona Supreme Court

Page 364

418 P.2d 364

101 Ariz. 208

Betty Jo REVELS and Millard Revels, her husband, Appellants, v. Dr. Ernest E. POHLE, Appellee.

No. 7511.

Supreme Court of Arizona, In Division.

Sept. 28, 1966.

Hash & Bernstein, by V. L. Hash, Phoenix, for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Robert W. Browder, Phoenix, for appellee.

UDALL, Justice.

Millard and Betty Jo Revels, the plaintiffs, brought suit against the defendant, Ernest E. Pohle, to recover damages for alleged malpractice by defendant upon the person of Betty Jo Revels. The alleged malpractice is based upon the postoperative care of plaintiff after a hysterectomy operation. The case was tried before a jury and at the close of the evidence for plaintiffs, the court granted a motion for a directed verdict in favor of defendant, on the ground that plaintiffs had failed to sustain their burden of proof and had not as a matter of law made out a prima facie case against the defendant. Judgment was rendered on the verdict, and, after the usual motion for new trial was overruled, this appeal was taken.

There are five assignments of error presented to us on this appeal. Assignment No. 1 is that the trial court erred in directing a verdict for the defendant at the close of plaintiffs' case for the reason that plaintiffs' proof established acts of negligence on the part of defendant of the grossest kind and created a question of fact for the determination of the jury. This assignment raises the question whether, taking the evidence as a whole and treating it in the light most favorable to plaintiffs, as we must do when the court instructs a verdict in favor of defendant, there was sufficient evidence to have the case submitted to the jury for a verdict on the merits.

About May 14, 1958, the defendant performed a hysterectomy on Betty Jo Revels. There is no serious contention in the record that defendant did not follow the approved medical standard in performing said operation. Dr. Pohle used three different types of suturing material, one of which was steel, in sewing up the plaintiff. Mrs. Revels was released from the Tempe Hospital two weeks later on a Thursday, and told by defendant to return for an examination on the following Sunday, which she did. On that Sunday, Dr. Pohle cleaned the wound and put on a fresh bandage. Thereafter, for a period of one month, Mrs. Revels saw defendant once a week. During the months of July and August she called at his office twice a month and from September through January of 1959, she visited Dr. Pohle once a month. Plaintiff paid the usual charge for an office visit on each such occasion and according to her testimony she complained on each visit of 'sticking pains' in the incision of her abdomen.

Mrs. Revels further testified that during the months after her operation while she was under defendant's care, her condition was such that she lost weight, could not eat or sleep, was very nervous and that she could not stretch out at full length because of the pain in her incision, all of which facts she conveyed to Dr. Pohle. Despite such repeated complaints, defendant did not on any occasion examine Mrs. Revels by palpation and inspection nor did he give her an x-ray examination, but merely gave her some pills and told her to 'get a little meat on her bones and it would go away.' Mr. Revels gave testimony that his wife continually complained to him of the 'sticking pain' and that he had on occasion examined her abdomen and had felt some foreign substance in the incision. There was also evidence that while Dr. Pohle was on vacation in August of 1958, plaintiff was seen by Dr. Clark, an associate of defendant, who after hearing her complaint concerning the sticking sensation, gave her two shots in the abdomen, opened the incision and removed one steel suture before sewing her back up.

In February of 1959, a discontented Mrs. Revels discontinued her visits to defendant and went instead to Dr. Price, who treated her until the following August, at which time she conferred with Dr. DePinto, who in turn referred her to a surgeon, Dr. Stannard. Dr. Stannard examined plaintiff by palpation and inspection and found some nodulation beneath her healed hysterectomy scar. He had an x-ray ordered and it disclosed that the nodules were opague material, whereupon he informed Mrs. Revels of the necessity for an operation. Dr. Stannard operated on September 4, 1959, and removed the small lumps, which were determined to be steel suture material, after which plaintiff made a complete recovery and no longer suffers any pain or nervousness or other discomfort because of her incision.

Plaintiffs do not contend on this appeal that defendant was negligent in the manner in which he performed the hysterectomy on Mrs. Revels, but rather that a condition subsequently developed which could, if defendant had not been negligent in his postoperative care and had properly examined Mrs. Revels, have been discovered and been corrected sooner, thus circumscribing the prolonged period of suffering she was forced to endure. Dr. Pohle, in seeking to uphold the validity of the directed verdict given him by the trial court, argues that plaintiffs not only did not show by affirmative evidence the standard of medical practice in the Tempe area in 1958 to which he was required to conform, but further did not show by expert medical testimony that the postoperative care given by him departed from the established standard for cases like that of Mrs. Revels.

Since our decisions in Butler v. Rule, 29 Ariz. 405, ...