Schrib v. Seidenberg
Decision Date | 22 August 1969 |
Docket Number | No. 330,330 |
Citation | 1969 NMCA 78,458 P.2d 825,80 N.M. 573 |
Parties | Irene SCHRIB and Alvin N. Schrib, Plaintiffs-Appellees, v. Leonard SEIDENBERG, M.D., Defendant-Appellant, Wyeth Laboratories and American Home Products, Inc., Defendants-Appellees. |
Court | Court of Appeals of New Mexico |
This case involves medical malpractice by Seidenberg (Leonard Seidenberg, M.D.) in injecting Sparine into plaintiff Irene Schrib. Dry gangrene resulted from the injection. The issues concern: (1) evidence of malpractice; (2) the damage award (excessiveness and inadequacy); (3) strict liability of the manufacturer of the drug; and, (4) denial of requested admissions.
Evidence of malpractice.
Malpractice is a form of negligence. See Buchanan v. Downing, 74 N.M. 423, 394 P.2d 269 (1964); N.M.U.J.I.8.1. Before a physician may be held liable for malpractice, there must be a showing that he departed from recognized standards of medical practice. Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964). In addition, that departure must be the proximate cause of the incident or occurrence which is the subject of the litigation. Buchanan v. Downing, supra.
Sparine is a major tranquilizer. The evidence shows there are three ways of administering the drug--orally, intramuscularly or intravenously. The evidence also shows that under no circumstances should Sparine be injected into an artery.
Seidenberg testified he injected the drug into a vein. However, the trial court found that in injecting the drug, Seidenberg failed to follow generally accepted standards to prevent an inadvertent arterial injection; after inserting the needle, failed to make adequate observations to determine whether the needle had been inadvertently introduced into an artery, and actually injected the drug into an artery.
Seidenberg claims there is no evidence to support these findings. He relies on testimony that (a) the drug could be properly injected into the vein and then leak into the artery and (b) in giving intravenous injections on can get into an artery even while exercising the best of precautions and the best medical practice. This testimony expresses no more than 'possibilities'. See Buchanan v. Downing, supra.
Opposed to this testimony is the testimony of at least two of the expert medical witnesses. Their testimony directly supports the findings made by the trial court. If the 'possibilities' relied on by Seidenberg can be considered as raising a conflict in the evidence, they do not aid Seidenberg on appeal. Conflicts are resolved in favor of the successful party and in support of the judgment. Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175, 50 A.L.R.2d 1033 (1954).
Seidenberg also relies on testimony to the effect that '* * * there is no way in the world to know in this particular case * * *' exactly what happened. Thus, he attacks the finding that the injection was the proximate cause of the gangrene. In addition to testifying that in injecting the Sparine, Seidenberg departed from recognized medical standards, the expert medical witnesses gave their opinion, as a reasonable medical probability, that this improper injection was the proximate cause of the gangrene and resultant consequences. See Buchanan v. Downing, supra.
The evidence of the expert medical witnesses substantially supports the findings as to Seidenberg's malpractice in injecting the Sparine.
Damage award.
The trial court awarded damages of $51,200.00. Seidenberg claims this amount is excessive, that he is entitled to a remittitur. Plaintiffs, by cross-appeal, claim this amount is inadequate, that they are entitled to an additur.
Excessiveness is determined by: (1) whether the evidence, viewed in the light most favorable to plaintiffs, substantially supports the award and (2) whether there is an indication of passion, prejudice, partiality, sympathy, undue influence or a mistaken measure of damages on the part of the fact finder. Sweitzer v. Sanchez, (Ct.App.), 80 N.M. 408, 456 P.2d 882, decided June 20, 1969 and cases therein cited.
Seidenberg claims the award resulted from passion and prejudice. He presents no basis for his conclusion. We have reviewed the record and find nothing indicating passion or prejudice on the part of the trial court. Compare Sweitzer v. Sanchez, supra.
Seidenberg also claims the award is not supported by substantial evidence. His view of the evidence as to damages and our comments thereon follow:
(1) Medical bills of $3,497.27. This is correct.
(2) All she lost was a part of her left thumb and left index finger. This is incorrect. The trial court found, and there is supporting evidence, that Mrs. Schrib had a 20% loss of function of her left arm and a 50% loss of function of the left hand.
(3) Mrs. Schrib lost wages for only a short period of time. She lost practically all of her wages in the year of her injury, (the incident occurring in January); had a substantial reduction in wages for the following year; for the next eighteen months (up to trial) she had been working at the same job she held prior to the injury. We do not attempt to state the amount of lost wages for the time off work because the wages prior to injury are stated as gross income and the other wages are stated in terms of net income.
(4) Mrs. Schrib's ability to work has not been impaired to any great extent. Seidenberg relies on testimony that Mrs. Schrib would have difficulty in obtaining future employment because of her age (49). Seidenberg ignores testimony to the effect that Mrs. Schrib obtained her old job back because she had been one of the 'better' waitresses, had been very loyal and her employer felt sorry for her. It ignores testimony that she would have difficulty in obtaining a job other than with her old employer because of her handicap. It ignores testimony that Mrs. Schrib has a 70% wage-earning disability.
Seidenberg's claim as to excessiveness of the damage award omits any reference to the following: (1) Mrs. Schrib was hospitalized and underwent at least three surgical procedures in the treatment of the condition resulting from the gangrene; (2) the operative sites healed slowly and required frequent debridement; (3) a wide scar extends the length of her forearm; (4) this scar and the amputation of portions of her left thumb and forefinger are permanent conditions; and, (5) the finding, supported by uncontradicted testimony, of her pain and suffering.
The trial court found that Mrs. Schrib suffered the injuries described above, has permanent loss of functions to her hand and arm and a loss of wage-earning ability. She underwent hospital and surgical treatments, had pain and suffering, incurred medical expenses and lost wages. These findings and the award of $51,200.00 are supported by substantial evidence.
Plaintiffs contend the damage award is inadequate. Before the trial court, the only reference to inadequacy of damages is in the argument of plaintiffs' attorney in opposition to Seindenberg's motion for a remittitur. The attorney remarked: '* * * She had lots of suffering, your Honor, and I think the Court's amount was low.' Plaintiffs did not, however, ask the trial court to either increase the amount awarded or grant a new trial. See Hammond v. Blackwell, 77 N.M. 209, 421 P.2d 124 (1966). They did not invoke any ruling of the trial court on the asserted inadequacy of damages. Not having invoked a ruling of the trial court as to this issue, they may not raise it here for the first time. Dahl v. Turner (Ct.App.), 458 P.2d 816, decided August 15, 1969.
Further, Hammond v. Blackwell, supra, states that on appeal, a damage award will not be held to be inadequate:
'* * * unless it appears to have resulted from passion, prejudice, partiality, undue influence or some corrupt cause or motive, where there has been palpable error or the measure of damage has been mistaken. * * *'
See Powers v. Campbell, 79 N.M. 302, 442 P.2d 792 (1968).
The measure of damages may be mistaken if the award does not include proven elements of damage. See Hammond v. Blackwell, supra; Jones v. Pollock, 72 N.M. 315, 383 P.2d 271 (1963). Plaintiffs contend the trial court mistook the measure of damages. They reach this contention by taking 70% (the loss of earning capacity) of Mrs. Schrib's gross income for the year to the injury and multiplying this figure by the number of years remaining before she reaches age 65. Disregarding the lack of proof as to net wages (prior to injury) and assuming unproven years of work expectancy, plaintiffs use the resulting sum as a portion of the damages awarded. They subtract this sum and the amount of the medical expenses from the damage award and assert the balance of approximately $6,000.00 is all that is awarded for Mrs. Schrib's disfigurement and pain and suffering. The claim of mistaken measure of damages is based on plaintiffs' computation of the amount awarded for disfigurement and pain and suffering.
In substance, plaintiffs' claim of inadequacy is based not only on items for which there is no proof, but on their own speculation as to how the trial court arrived at the amount of the damage award. The trial court, after finding the items of damage discussed above, under 'excessiveness', made its award for all of the items of damage. It did not allocate its award to specific items of damage.
The record does not support plaintiffs' claim that the trial court's award was inadequate because of a mistaken measure of damages. Accordingly, we do not reach the question of what relief is available on appeal when there is a determination that the damages awarded were inadequate.
Both claims--excessiveness and inadequacy--have been...
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