Rodriguez v. Jackson, 2
| Decision Date | 14 November 1977 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 118 Ariz. 13,574 P.2d 481 |
| Parties | Emiliano RODRIGUEZ, Appellant, v. Ralph A. JACKSON, M. D., Thomas-Davis Clinic, John H. Penners, M. D., PimaCounty, Clarence Robbins, M. D., and William E. Brownlee, M. D., Appellees. 2621. |
| Court | Arizona Court of Appeals |
Stuart Herzog, Tucson, for appellant.
Lesher, Kimble & Rucker, P. C. by Robert O. Lesher, Tucson, for appellees Jackson, Thomas-Davis Clinic and Penners.
Everett, Bury & Moeller, P. C. by Leonard Everett and David C. Bury, Tucson, for appellees Pima County and Robbins.
Fish, Briney, Duffield & Miller, P. C. by Richard Briney, Tucson, for appellee Brownlee.
When the alleged malpractice against a doctor requires expert testimony, can expert witnesses other than medical doctors testify as to the standard of care required of the doctor? That is the issue to be decided here.
Appellant filed a complaint in the superior court alleging that appellees were guilty of medical malpractice. After extensive depositions were taken, appellees moved for summary judgment. Appellant opposed the motion, relying on the affidavits of Professor Ivan M. Lytle, Dean Louis J. Kettel, Dean Gladys E. Sorensen, Diana Sims, a registered nurse, as well as the depositions of Dr. Martha Panitch, Ph.D. and appellant. All of the defendant doctors are medical specialists. Drs. Jackson and Robbins specialize in internal medicine, Dr. Brownlee is a thoracic surgeon and Dr. Penners is a radiologist. The facts shall be viewed by us in the light most favorable to appellant. Livingston v. Citizen's Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971).
Appellant was first seen by Dr. Jackson on February 15, 1967. He was brought in by his daughter-in-law because he had been experiencing insomnia and chronic nervous tension. He was given a physical examination including a blood count, a thyroid test and a chest x-ray. The radiologist, Dr. Penners, reported density and consolidations in the lungs, suspected lymph node enlargement and suspected "occupational disease". This x-ray report was sent to Dr. Jackson who contacted the daughter-in-law, advised her of the abnormality and recommended that she bring her father-in-law for follow-up. Dr. Jackson also asked the family about occupational exposure and the most he could learn was that appellant had worked as a zinc miner some ten years before; that he had not had an x-ray for twenty years and that they thought there had been one taken at the Carl Hayden Hospital. No previous chest x-rays were provided to Dr. Jackson, and the family did not bring Mr. Rodriguez back per the advice of Dr. Jackson.
The next time Dr. Jackson had occasion to see Mr. Rodriguez was on January 5, 1971. He was examined again because of the same complaint, namely insomnia. His weight was the same as it was in 1967. His lungs were clear and his heart was normal. Dr. Jackson felt that his main problem was anxiety and insomnia. He prescribed Valium.
On March 7, 1972, Mr. Rodriguez went to see Dr. Jackson, complaining of an upper respiratory infection of one month's duration. He was examined by the doctor who diagnosed the problem as bronchitis, and he was treated with oral penicillin and cough medicine.
On March 14, 1972, Mr. Rodriguez was again seen by Dr. Jackson. His respiratory symptoms had continued. A chest x-ray and skin tests were done and a sputum specimen taken. Dr. Jackson noted that the chest x-ray looked very bad and that Mr. Rodriguez appeared to have a hole in the right lung. Dr. Jackson arranged for Mr. Rodriguez to be admitted to Tucson Medical Center the next day. The admission diagnosis was "probably tuberculosis". Further tests were taken, and after consultation with Dr. Brownlee and Dr. Robbins, the Pima County tuberculosis control officer in 1972, drug therapy was commenced. Three drugs were used, among which was Streptomycin. The dosage of the Streptomycin was one gram intramuscularly twice daily. After six days of this chemotherapy, Mr. Rodriguez displayed symptoms of vestibular nerve injury and the dosage of Streptomycin was reduced to one gram per day.
Several days after Dr. Jackson began the chemotherapy, he contacted Dr. Robbins and informed him of the drug dosages he had administered, including the dosage of one gram twice daily of Streptomycin. After Mr. Rodriguez left the hospital he was treated by Dr. Robbins who continued him on one gram per day of Streptomycin for three days. On the fourth day the drug was stopped because the patient displayed signs of a vestibular nerve injury. In May of 1972, Mr. Rodriguez was diagnosed as having vestibular dysfunction, which means that the equilibrium apparatus involving the eighth cranial nerve was damaged. This injury is irreversible. As a result of the injury Mr. Rodriguez does not have equilibrium and there are additional visual and auditory effects such as the room spinning and noises in the air. He is subject to falling and in one such fall received a six-inch gash on his face. Had not Mr. Rodriguez been given chemotherapy, he would have died from tuberculosis.
The drug manufacturer's insert for Streptomycin sulfate stated the dosage for treating tuberculosis to be one gram daily. It also stated that Streptomycin frequently affects the vestibular branch of the auditory nerve and that the incidence of such side effect is directly proportionate to the duration of therapy and the amount of the drug administered. Dr. Jackson was aware of this side effect, but believed the dose he administered was necessary to save Mr. Rodriguez' life.
Dr. Brownlee, with whom Dr. Jackson consulted, conducted a physical examination of Mr. Rodriguez on March 17, 1972. He considered the patient's condition very serious, especially since he also apparently had silicosis and there was a possibility that he had lung cancer. Dr. Brownlee recommended that Dr. Jackson contact the county tuberculosis control officer, Dr. Robbins, and that the patient be started on Isoniazid and Myambutol, both anti-tuberculosis drugs. He was not sure whether the drug Streptomycin was discussed, although he used that drug in conjunction with the other drugs in the treatment of tuberculosis.
Dr. Robbins received a call from Dr. Jackson regarding Mr. Rodriguez and suggested treatment with Streptomycin in conjunction with two other drugs. He did not discuss dosage of Streptomycin with Dr. Jackson. The effect of Streptomycin on the vestibular function of the eighth cranial nerve was known by Dr. Robbins in 1972; however, at that time the effect of age on the use of the drug was not known to him. Dr. Robbins could find no fault in Dr. Jackson's treatment of Mr. Rodriguez including the dosage of Streptomycin given to him.
We shall now discuss the affidavits used by appellant in opposition to the motions for summary judgment. The affidavit of Ivan M. Lytle, Ph.D., discloses that he is a professor of biological sciences and head of the department of general biology at the University of Arizona. He is a physiologist by profession. Physiology is the science involving the functions of the systems of the body and is taught in medical schools and in nursing colleges. He stated that he had reviewed the medical records of Mr. Rodriguez and had made substantial review of the relevant medical literature including the literature relevant to tuberculosis prevention and treatment, the effect of Streptomycin, vestibular dysfunction and silicosis. Regarding the standard of medical care Professor Lytle stated:
"The standards of medical care applicable to the diagnosis and treatment of Mr. Rodriguez involved fundamental scientific knowledge and procedures which the defendants, as MD's, knew or should have known.
The scientific knowledge and scientific procedures involved fundamental physiological and pharmacological principles.
The diagnosis, treatment and care given to Mr. Rodriguez by the Defendants indicates that the Defendants either did not have the required scientific knowledge or did not know the required scientific procedures, or if they did know they failed to apply them.
The Defendants, therefore, violated the applicable standards of medical care . . ."
Dr. Lytle then concluded that the defendant doctors were negligent in either their detection or treatment of the tuberculosis, and in the administration of the Streptomycin. He stated that there is rarely, if ever, any scientific justification for administering Streptomycin to an older person. Dr. Lytle also stated in his affidavit that a physician should inform the patient of the risk involved in chemotherapy. Diana Sims is a registered nurse in charge of medical outpatients at the Arizona Medical Center in Tucson, Arizona. She stated that she had education, training and experience with regard to the diagnosis and treatment of respiratory diseases such as tuberculosis and experience in the field of pharmacology and the administration of medications. She also stated that she was familiar with the standards of medical care applicable to Mr. Rodriguez, including the standards for respiratory specialist consultants. She reviewed the records and interviewed Mr. Rodriguez and came to the conclusion that the doctors were negligent in their diagnosis, treatment and administration of drugs.
Dr. Martha Panitch, Ph.D., is a pharmacologist. Pharmacology is the science that deals with drugs, their sources, appearance, chemistry, actions and...
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