Smith v. Klebanoff
| Decision Date | 02 June 1972 |
| Docket Number | No. 775,775 |
| Citation | 499 P.2d 368,84 N.M. 50,1972 NMCA 75 |
| Parties | Shirlee SMITH and Ron Smith, Plaintiffs-Appellants, v. Robert M. KLEBANOFF et al., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
The trial court entered summary judgment in favor of the defendants in this medical malpractice case. Plaintiffs' appeal raises issues: (1) as to the material before the trial court at the summary judgment hearing; (2) whether there were factual issue preventing summary judgment; (3) res ipsa loquitur; and (4) warning as to the dangers of surgery.
Material before the trial court.
Numerous depositions were taken. Plaintiffs assert that the depositions of four named doctors had not been transcribed or filed at the time of the summary judgment hearing. Plaintiffs, however, have stipulated that these four depositions had been transcribed and counsel were under the impression that the originals of the depositions had been filed.
Plaintiffs claim that since the originals of the depositions had not been filed at the time of the hearing they were not available to the court. However, they have stipulated that copies of the depositions were available to counsel at the time of the hearing. The record of the summary judgment hearing shows that counsel for Klebanoff expressly referred to three of the depositions in his argument and that plaintiffs' counsel referred to at least one of the depositions in his argument.
The record shows that copies of the depositions were in fact available. There is no merit to the contention that the summary judgments were erroneous because the originals of the four depositions were not on file at the time of the hearing.
Whether there were factual issues preventing summary judgment.
Klebanoff, a board certified neurosurgeon, performed surgery for the removal of a herniated disc between the fourth and fifth lumbar vertebra of Shirlee Smith. Coffey assisted at the operation. During the operation a pituitary rongeur, used by Klebanoff, penetrated the anterior wall of the annulus fibrosis, punctured the right iliac artery and almost severed the right iliac vein. As a result, there was communication between the artery and vein. This communication was discovered when an aortogram was conducted on the second post-operative day. Repair surgery was then performed.
Three claims of malpractice were asserted against Klebanoff and Coffey. They are: (1) acts during the surgery; (2) the failure to diagnose the condition resulting from use of the rongeur during the surgery; and (3) the length of time which occurred after the operation before the condition was diagnosed and the lack of care during this time period. The claims against the Lovelace Clinic and Bataan Hospital were that they were responsible for the alleged malpractice of Klebanoff and Coffey. In addition, it is asserted that Lovelace Clinic doctors were responsible for the alleged lack of post-operative care.
Each of the defendants made an affirmative showing that there were no factual issues and were entitled to summary judgment. With this showing, the burden was on the plaintiffs to show a factual issue existed. Sanchez v. Shop Rite Foods, 82 N.M. 369, 482 P.2d 72 (Ct.App.1971); Rekart v. Safeway Stores, Inc., 81 N.M. 491, 468 P.2d 892, 38 A.L.R.3d 354 (Ct.App.1970). Since the issue is whether plaintiffs met their burden, we refer to the showing made by the various defendants only to the extent necessary to answer plaintiffs' contentions.
In determining whether plaintiffs met their burden we construe all reasonable inferences in favor of plaintiffs. Binns v. Schoenbrun, 81 N.M. 489, 468 P.2d 890 (Ct.App.1970).
Acts during the surgery.
The affidavit of Dr. Davis refers to the penetration of the rongeur and the resultant injury. Davis states 'this act' amounted to less than the usual caution, care and medical skill required to meet the standards of medical practice. On the basis of 'this act,' plaintiffs assert there is a factual issue as to malpractice in the use of the rongeur.
The showing made by defendants is that such penetration and resultant injury is an inherent danger of the surgical procedure; that this danger exists because of the anatomy of individuals (the proximity of the right iliac vein and right iliac artery to the annulus surrounding the disc). The showing is that the penetration and resultant injury occurs in a small but statistically determinable number of cases even though the surgeon is aware of the danger and is careful to avoid such an occurrence. Examples of such a mishap are given; the examples are based on the personal experience of the affiants.
The foregoing demonstrates that an unintended incident transpired. Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964), which involved an intramedullary pin, states that an unintended incident, in itself, does not establish liability; that unless exceptional circumstances are present, there must be a showing that the '* * * incident occurred because of the physician's failure to meet the standard * * *.' Here, the unintended incident does not raise a factual issue unless there is a showing that exceptional circumstances were present or that the incident occurred because of Klebanoff's failure to meet the required standard.
The showing in the depositions and affidavits relied on by defendants is that no exceptional circumstances were present. The Davis affidavit makes no reference to exceptional circumstances. Plaintiffs contended in oral argument that such circumstances were shown by the force necessary to make the penetration and to effect the damage to the anterior annulus, the right iliac artery and the right iliac vein. The answer is that there is nothing showing that the force used in effecting the penetration and resultant injury was in any way exceptional. There are no factual issues concerning exceptional circumstances.
The showing by defendants is there was no failure to meet the required standard. Specifically, defendants' showing explains why the penetration and resultant injury does not fall below the required standard. Davis concludes the penetration and resultant injury was below standard but does not explain why. '* * * An expert witness must, of course, be able to give a satisfactory explanation as to how he arrives at his opinion. * * *' Dahl v. Turner, 80 N.M. 564, 458 P.2d 816, 39 A.L.R.3d 207 (Ct.App.1969). Absent such an explanation, the opinion is not competent evidence. City of Albuquerque v. Chapman, 76 N.M. 162, 413 P.2d 204 (1966); Landers v. Atchison, Topeka & Santa Fe Railway Co., 68 N.M. 130, 359 P.2d 522 (1961). In summary judgment proceedings, affidavits '* * * shall set forth such facts as would be admissible in evidence * * *.' Section 21--1--1(56)(e), N.M.S.A.1953 (Repl. Vol. 4).
We agree with the trial court; the affidavit of Davis did not set forth facts admissible in evidence, shows no foundation for Davis' opinion and was insufficient to raise a factual issue.
Plaintiffs also rely on an article by Dr. Holscher which is attached to the doctor's affidavit. The article is concerned with the type of occurrence which gave rise to this lawsuit. In discussing preventive measures, the Holdscher article refers to adequate lighting in the depths of the wound and depth markings. Plaintiffs contend the absence of such lighting and markings raises a factual issue as to malpractice. We disagree.
Malpractice is the departure from the recognized standards of medical practice in the community. Cervantes v. Forbis, supra. N.M.U.J.I. 8.1 and 8.2. Here, there is nothing showing that lighting inside the wound or depth markings are standards of medical practice. Holscher's article refers to 'safer guidelines' to be followed in preventing incidents such as are involved in this case but goes no further than listing in-wound lighting and depth markings as 'desiderata' for prevention. That in-wound lighting and depth markings are preventive items to be desired is not disputed, but defendants' showing that these items are not standards of the practice is also not disputed. That showing is made by the factual matters in Dr. Mora's affidavit and Holscher's opinion, '* * * that the operative procedure followed by Dr. Klebanoff meets the usual and customary high operating standards used by the medical profession throughout the United States. * * *'
There being no factual issue as to malpractice by acts during the surgery, the summary judgment in favor of Klebanoff in connection with those alleged acts is affirmed. No independent act of malpractice is alleged against Coffey. The theory of liability against Coffey is that he was a part of a surgical team and, therefore, was liable for any act of malpractice by Klebanoff. Since there is no issue as to acts of malpractice by Klebanoff, summary judgment in favor of Coffey in connection with those alleged acts is also affirmed. With this result, we do not discuss the issue of 'surgical team' liability. See Sprinkle v. Lemley, 243 Or. 521, 414 P.2d 797 (1966); Annot., 85 A.L.R.2d 889 (1962).
Failure to diagnose the conditions during surgery.
It is undisputed that there was no sudden or dramatic change in the patient's condition during the surgery that would have alerted a surgeon to the penetration and resultant injuries. Plaintiffs' claim is that material removed from the disc space during the surgery contained fibrous tissue which should have been identified by the surgeon as coming from the anterior annulus. Plaintiffs assert there is a factual issue as to malpractice because no...
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