Riedisser v. Nelson, No. 11733

CourtSupreme Court of Arizona
Writing for the CourtHAYS; STRUCKMEYER, V.C.J., and HOLOHAN
Citation534 P.2d 1052,111 Ariz. 542
PartiesJudith A. RIEDISSER and Joseph E. Riedisser, her husband, Appellants, v. Robert L. NELSON, M.D., and Virginia Nelson, his wife, Appellees.
Docket NumberNo. 11733
Decision Date25 April 1975

Page 1052

534 P.2d 1052
111 Ariz. 542
Judith A. RIEDISSER and Joseph E. Riedisser, her husband, Appellants,
v.
Robert L. NELSON, M.D., and Virginia Nelson, his wife, Appellees.
No. 11733.
Supreme Court of Arizona, In Division.
April 25, 1975.
Rehearing Denied May 28, 1975.

[111 Ariz. 543]

Page 1053

Divelbiss & Gage, by G. David Gage, Phoenix, for appellants.

Renaud, Cook, Miller & Cordova, P.A. by John H. Seidel, Phoenix, for appellees.

HAYS, Justice.

On June 9, 1970, Robert L. Nelson, M.D., performed a vaginal hysterectomy and anterior and posterior repair on Judith Riedisser. Subsequently, she developed a ureterovaginal fistula and was obliged to have surgery performed to correct this condition. This second surgery was performed by Wilfred M. Potter, M.D. Robert W. Brazie, M.D., assisted at both operations.

The Riedissers filed a medical malpractice action against Doctors Nelson and Brazie and Baptist Hospital of Scottsdale. Upon stipulation, the case against the hospital was dismissed. Dr. Brazie's motion for summary judgment was granted and has become final. Dr. Nelson's motion for summary judgment was also granted and is the subject of this appeal by the Riedissers. This court has taken jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S. Pleadings, affidavits, memoranda, and extensive deposition testimony are before us. The judgment of the trial court is affirmed.

The appellants first argue the applicability of the doctrine of res ipsa loquitur, the elements of which are well set forth in Capps v. American Airlines, Inc., 81 Ariz. 232, 303 P.2d 717 (1956):

'(1) the accident must be of a kind which ordinarily does not occur in the absence of some one's negligence;

'(2) it must be caused by an agency or instrumentality within the exclusive control of defendant;

'(3) it must not have been due to any voluntary action on the part of the plaintiff;

'(4) plaintiff must not be in a position to show the particular circumstances which caused the offending agency or instrumentality to operate to his injury.' 81 Ariz. at 234, 303 P.2d at 718.

The plaintiffs have failed to meet the first requirement set forth above; the negligence of Dr. Nelson has not been established.[111 Ariz. 544]

Page 1054

The question of a physician's skill or failure to use his skill is a material question of fact, and on a motion for summary judgment, the party opposing the motion must show that at trial, he would be able to show evidence that the physician lacked or did not apply the proper skills. Abernethy v. Smith, 17 Ariz.App. 363, 498 P.2d 175 (1972).

Negligence on the part of a physician must be established by expert medical testimony unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Revels v. Pohle, 101 Ariz. 208, 418 P.2d 364 (1966); Tiller v. Von Pohle, 72 Ariz. 11, 230 P.2d 213 (1951) (rag left in abdomen of patient for two years). Ordinarily, negligence of a doctor cannot be presumed in hindsight to be so gross that a layman can recognize it solely because an injury did occur. Tessitore v. McGilvra, 105 Ariz. 91, 459 P.2d 716 (1969). Negligence on the part of the doctor must be affirmatively proven. Boyce v. Brown, 51 Ariz. 416, 77...

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49 practice notes
  • Hook v. Rothstein, No. 0154
    • United States
    • Court of Appeals of South Carolina
    • April 16, 1984
    ...jurisdictions in this country follow the professional standard. See Annot., 88 A.L.R.3d 1008, 1012 (1978); see, also Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975); Fuller v. Starnes, supra; Coleman v. Garrison, 327 A.2d 757 (Del.Super.1974), aff'd, 349 A.2d 8 (1975); Brown v. Woo......
  • Sard v. Hardy, No. 11
    • United States
    • Court of Appeals of Maryland
    • November 9, 1977
    ...expert medical testimony the existence of a duty to disclose and a departure from the standard of care. See, e. g., Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052, 1055 (1975); Casey v. Penn, 45 Ill.App.3d 573, 4 Ill.Dec. 346, 360 N.E.2d 93, 101 (1977); Llera v. Wisner, Mont., 557 P.2d 8......
  • Buck v. Alton Memorial Hospital, No. 79-116
    • United States
    • United States Appellate Court of Illinois
    • July 9, 1980
    ...will demonstrate that the defendant doctors were negligent. Pendleton v. Cilley, 118 Ariz. 84, 574 P.2d 1303 (1978); Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975); Morrell v. St. Luke's Medical Center, 27 Ariz.App. 486, 556 P.2d 334 (Ct.App.1976); Abernethy v. Smith, 17 Ariz.App.......
  • Ketchup v. Howard, No. A00A0987.
    • United States
    • United States Court of Appeals (Georgia)
    • November 29, 2000
    ...to warn must be established by expert medical testimony. Potter v. Wisner, 170 Ariz. 331, 823 P.2d 1339 (App.1991); Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052, 1054-1055 (1975); see also ARS § 12-563. The patient must show that he would not have gone through with the procedure if the......
  • Request a trial to view additional results
49 cases
  • Hook v. Rothstein, No. 0154
    • United States
    • Court of Appeals of South Carolina
    • April 16, 1984
    ...jurisdictions in this country follow the professional standard. See Annot., 88 A.L.R.3d 1008, 1012 (1978); see, also Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975); Fuller v. Starnes, supra; Coleman v. Garrison, 327 A.2d 757 (Del.Super.1974), aff'd, 349 A.2d 8 (1975); Brown v. Woo......
  • Sard v. Hardy, No. 11
    • United States
    • Court of Appeals of Maryland
    • November 9, 1977
    ...expert medical testimony the existence of a duty to disclose and a departure from the standard of care. See, e. g., Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052, 1055 (1975); Casey v. Penn, 45 Ill.App.3d 573, 4 Ill.Dec. 346, 360 N.E.2d 93, 101 (1977); Llera v. Wisner, Mont., 557 P.2d 8......
  • Buck v. Alton Memorial Hospital, No. 79-116
    • United States
    • United States Appellate Court of Illinois
    • July 9, 1980
    ...will demonstrate that the defendant doctors were negligent. Pendleton v. Cilley, 118 Ariz. 84, 574 P.2d 1303 (1978); Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975); Morrell v. St. Luke's Medical Center, 27 Ariz.App. 486, 556 P.2d 334 (Ct.App.1976); Abernethy v. Smith, 17 Ariz.App.......
  • Ketchup v. Howard, No. A00A0987.
    • United States
    • United States Court of Appeals (Georgia)
    • November 29, 2000
    ...to warn must be established by expert medical testimony. Potter v. Wisner, 170 Ariz. 331, 823 P.2d 1339 (App.1991); Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052, 1054-1055 (1975); see also ARS § 12-563. The patient must show that he would not have gone through with the procedure if the......
  • Request a trial to view additional results

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