Sagmiller v. Carlsen, 8905

• Citation: 219 N.W.2d 885
• Decision Date: 28 June 1974
• Docket Number: No. 8905,8905
• Parties: Jeanette SAGMILLER, Plaintiff/Appellant, v. D. A. CARLSEN, M.D., Defendant/Appellee. Civ.
• Court: North Dakota Supreme Court

Page 885

219 N.W.2d 885

Jeanette SAGMILLER, Plaintiff/Appellant, v. D. A. CARLSEN, M.D., Defendant/Appellee.

Civ. No. 8905.

Supreme Court of North Dakota.

June 28, 1974.

Syllabus by the Court

1. The court will rarely grant a motion for summary judgment in negligence cases.

2. Where a party reasonably expects to rely in large part on cross-examination of an adverse party to establish his claim or defense summary judgment will rarely be appropriate.

3. In summary judgment proceedings, general assertions of negligence or nonnegligence by experts or persons with special knowledge are not conclusive.

4. The doctrine of Res ipsa loquitur in a medical malpractice action is inapplicable to create an inference of negligence on the part of the doctor from the mere existence of an uncommon complication, except in the light of past experience or where, considering the cause of the complication, it is a matter of common knowledge even to a layman that the injury complained of could not have ordinarily happened in the absence of negligence.

5. Where affidavits and proofs of movant for summary judgment do not negative existence of questions of fact, summary judgment in his favor must be denied.

6. To make workable both the pretrial deposition-discovery mechanisms established by Rules 26--37, N.D.R.Civ.P., and Section 31--01--06, N.D.C.C., the statute embodying the doctor-patient privilege, where a plaintiff in a medical malpractice action puts his physical condition directly in issue, he may not thereafter cloak communications to doctors and nurses, which are occasioned by the injury complained of, with the claim of privilege.

Frederick E. Saefke, Jr., Bismarck, for plaintiff/appellant.

William C. Kelsch, Mandan, for defendant/appellee.

VOGEL, Justice.

This is an appeal from a judgment of the Morton County District Court, Sixth Judicial District, entered on March 8, 1973, which granted a motion for summary judgment pursuant to Rule 56, N.D.R.Civ.P., and dismissed a medical malpractice action because of plaintiff's failure to show by affidavit or otherwise that she had expert medical testimony to establish the standard of medical care in the area and the failure of the defendant doctor to meet that standard, and that such failure was the proximate cause of her alleged injury.

Our statement of the facts is based upon the record on appeal, including the depositions of Dr. James Moses and the plaintiff, Mrs. Jeanette Sagmiller, answers to interrogatories, and documents submitted in support of the defendant Dr. D. A. Carlsen's motion for summary judgment, including Dr. Carlsen's affidavit supporting the motion, Mrs. Sagmiller's affidavit opposing the motion, and two affidavits of Dr. P. M. Riisager.

On April 14, 1970, Dr. D. A. Carlsen surgically performed an anterior posterior repair of Mrs. Sagmiller's vagina, commonly known in the medical profession as an A and P repair. The surgery was necessary to correct a condition known as 'cystocele', which is a hernial protrusion of part of the female bladder into the opening of the vagina, resulting in inability to control the passage of urine. The operation involves the suturing together of the muscle layers surrounding the bladder in an effort to hold the bladder in its normal position. Following surgery, urine is drained by use of a catheter. The catheter is passed through the urethra into the bladder and is called a urethral catheter.

The urethral catheter initially inserted on April 14, 1970, in Mrs. Sagmiller's bladder remained in place for approximately three days, after which time it was removed for a period of twenty-four hours. When Mrs. Sagmiller was unable to void the contents of her bladder, the urethral catheter was reinserted. This second catheter remained inserted overnight and was removed again the next morning. A third catheter was inserted at approximately noon of the same day. Mrs. Sagmiller testified at her deposition that during her nine-day stay in the hospital the urethral catheter was inserted and removed approximately four times because she was unable to void the contents of her bladder. She left the hospital with a catheter in place, complaining that the catheter did not feel right and that the area where the catheter was inserted was tender from one catheter being removed and another inserted.

Mrs. Sagmiller was released from the hospital on April 22, 1970, with instructions to leave the catheter in place until April 30, 1970. On April 27, 1970, due to the increasing discomfort, she called Dr. Carlsen to complain of pain in the bladder area. Dr. Carlsen requested she come to his office. When she arrived, she was taken to an examination room by a nurse, given a gown, and asked to remove her clothing.

Mrs. Sagmiller asserts that Dr. Carlsen did not examine the operative site, nor did he take her temperature, pulse, or blood pressure. She says that Dr. Carlsen merely instructed her to go to the Mandan Hospital for a urinalysis, which she did.

Upon awakening the next morning, on April 28, 1970, Mrs. Sagmiller found evidence on her clothing of light internal bleeding. She called Dr. Carlsen and was told she had an infection. Dr. Carlsen telephoned a prescription to her drugstore to be used in combating the infection.

Mrs. Sagmiller called Dr. Carlsen the next day, April 29, 1970, to inquire if he still wanted her to remove the urethral catheter on April 30, 1970, as she had been instructed to do, even though there was continued bleeding. Dr. Carlsen answered in the affirmative. Mrs. Sagmiller removed the catheter at 8 o'clock, the morning of April 30, 1970, as instructed. The appointment with Dr. Carlsen was scheduled for one o'clock that afternoon. By 10:30 a.m. Mrs. Sagmiller was experiencing discomfort from her inability to void the contents of her bladder. At approximately 11 a.m. she called Dr. Carlsen to explain the problem. Dr. Carlsen told her to come to his office immediately. In his affidavit Dr. Carlsen states that in the process of inserting a catheter to drain the urine and relieve the pressure on Mrs. Sagmiller's bladder, he observed it pass through a fistula, or opening, in the distal portion of the urethra. Mrs. Sagmiller was rushed to the hospital, where a suprapubic drainage was carried out, relieving the pressure on her bladder. A urethral catheter was inserted the next day. Mrs. Sagmiller was hospitalized on this occasion for approximately five or six days. Upon her discharge, Dr. Carlsen informed Mrs. Sagmiller she would have to wear a catheter for from four to six more weeks.

It was after her second release from the hospital that Mrs. Sagmiller consulted Dr. James A. Moses, a urology specialist. Mrs. Sagmiller first saw Dr. Moses on May 8, 1970, and was instructed to return eight days later for another examination. Due to pains in the vaginal area, Mrs. Sagmiller was readmitted to the hospital on May 11, 1973, this time by Dr. Moses. Mrs. Sagmiller then spent two weeks in the hospital undergoing a series of operative procedures performed by Dr. Moses, such as a cystoscopic examination under general anesthesia and several attempts to dilate or extend the urethra which were performed under local anesthesia. Upon her third release from the hospital, Mrs. Sagmiller was able to void the contents of her bladder without the aid of a catheter; however, the fistula, or hole in the urethra, allowed urine to pass into and collect in the vaginal area during urination.

Mrs. Sagmiller wore a pad to absorb the urine, which required frequent changes. These pads were worn for approximately three months, through the month of August.

Dr. Moses operated to repair the fistula in November of 1970. Mrs. Sagmiller asserts that she continues to have a small opening between the urethra and the vaginal wall.

In her complaint Mrs. Sagmiller asserts, in essence, that Dr. Carlsen failed to exercise that degree of skill, learning, and care ordinarily exercised by other physicians and surgeons in his specialty, in the city of Mandan and similar localities, in his care of the plaintiff; that he negligently operated on and treated her so that she received an injury to her urethra; that he negligently and carelessly failed to post-operatively attend and treat the plaintiff; and that his negligence was the proximate cause of her injury.

Dr. Carlsen took the deposition of Mrs. Sagmiller and sought to take the depositions of Dr. Moses and Dr. Riisager, who Mrs. Sagmiller had stated would be the witnesses she would call at trial. Dr. Carlsen was unable to take the depositions of Dr. Moses and Dr. Riisager prior to trial because Mrs. Sagmiller refused to release the doctors from the doctor-patient privilege. A deposition was scheduled for Dr. Moses. He appeared, stated he had not been released from the doctor-patient privilege, and therefore it would be inappropriate for him to testify.

Dr. Carlsen then moved for summary judgment based upon discovery he had conducted and his own affidavit in which he stated that he had performed his services in accordance with the standards of practice in his specialty in the area, that the fistula was a complication of the surgery, that the fistula was not caused by any negligence on his part, and that no one can say with any medical certainty what caused the fistula.

Because this is a highly technical field of endeavor, we quote from his affidavit at length, as follows:

'The surgery I performed on Jeanette to repair her bladder was proper. It was successful and all the services I performed met or surpassed the standards of practice for this area. She did experience inability to void for a period following the operation. I regard this as a good symptom, for it indicates a successful reversal of the urinary incontinence. My experience dictates that with the use of a urethral catheter and the passage of time, the bladder sphincter will relax and normal voiding will follow. Unfortunately, Jeanette developed a...