Stundon v. Stadnik

• Citation: 469 P.2d 16
• Decision Date: 15 May 1970
• Docket Number: No. 3730,3730
• Parties: Robert STUDON, Appellant (Plaintiff below), v. L. J. STADNIK, Appellee (Defendant below).
• Court: United States State Supreme Court of Wyoming

Page 16

469 P.2d 16

Robert STUDON, Appellant (Plaintiff below), v. L. J. STADNIK, Appellee (Defendant below).

No. 3730.

Supreme Court of Wyoming.

May 15, 1970.

Lynn Rees, Laramie, for appellant.

Peter J. Mulvaney of Guy, Williams, White & Mulvaney, Cheyenne, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

Plaintiff was operated upon twice by the defendant for the removal of cataractous lenses from his eyes. During the second operation on January 8, 1962, which concerned the left eye, some fluid vitreous was lost from the eye. Some months following the second operation, plaintiff suffered a detached retina and subsequently lost vision in the left eye. ¹ The left eye was removed January 16, 1967. ² Plaintiff filed suit September 16, 1966, and the cause was tried before a jury on May 6, 1968. At the close of plaintiff's case, defendant's motion for a directed verdict was granted, and plaintiff appeals.

The plaintiff's pleadings and arguments are rather difficult to follow and will, therefore, be set out in full so that those interested in the opinion may have some idea of the task of the court in analyzing the points raised by the appellant in this appeal.

In his original complaint, plaintiff, in utter disregard of Rule 10(b), W.R.C.P., but which was not attacked by the defendant, sets out what is called three causes of action ³ against defendant and prays for judgment against the defendant for the sum of $154,000. The first cause of action alleged different counts of malpractice as follows:

1. Negligence in the cataract extraction operation on his left eye which resulted in the loss of the sight in plaintiff's left eye;

2. Fraudulent concealment of the negligence in the operation, and also in the postoperative treatment of the left eye, including the advice and treatment that were given later when the retina became detached from the left eye; and

3. Negligence in the postoperative treatment after the retinal detachment occurred concerning the failure to advise regarding the removal of the eye which resulted in a great deal of unnecessary pain and suffering by the plaintiff until the time it was discovered.

The second cause of action alleged malpractice in defendant's failure to fully inform plaintiff of his negligence in the operation and his fraudulent concealment of this negligence resulting in the loss of sight of the left eye, with the further allegation that if plaintiff had been informed of the dangers and risks inherent in such an operation he would not have consented to it.

The third cause of action alleged a contract guaranteeing the successful performance of the operation and the breach of the same. This third cause of action was dismissed by the court on a motion for summary judgment by defendant but the point has not been argued and hence will be considered as having been waived.

The answer of defendant admitted performance of the operation but denied any and all allegations of negligence, malpractice and fraudulent concealment.

Plaintiff's pretrial memorandum elaborated on what is claimed to be the several acts of negligence charged to the defendant.

Defendant in general denied all of these allegations of plaintiff and alleged that the operation was performed in the medically approved manner; that plaintiff had been sufficiently informed; that plaintiff was well aware of the risks involved, prior to the operation, because of the previous cataract extraction on his right eye, and denied that there was any guaranty made to plaintiff concerning the results of the operation; and defendant also moved to amend his answer to include the defense of contributory negligence, to which plaintiff filed a denial of any contributory negligence.

At the close of plaintiff's case, the trial court granted defendant's motion for a directed verdict.

Rulings, Orders and Judgment Sought to be Reviewed

Plaintiff makes the following contentions concerning errors committed at the trial of the case which he feels warrant the reversal of the judgment of trial court and in ordering a new trial thereof:

1. That the trial court erred in sustaining the objection when the plaintiff was asked if he had known that the doctor had difficulty in extracting the lens in plaintiff's first operation, would such knowledge have made any difference as to plaintiff's consenting to the second operation;

2. The trial court should not have sustained defendant's objection to plaintiff's testimony concerning what plaintiff heard spoken in the operating room during the operation;

3. That the trial court erred when it stated that the evidence of duty to warn a patient 'depends upon the circumstances of the case and upon the general practice followed by the medical practititioners (sic) in the locality and the custom of the medical practice must be established by expert medical testimony. * * *'; ⁴ and

4. That the trial court erred in granting defendant's motion for a directed verdict for the following reasons:

'a. The motion did not meet the requirements of either Rule 41(b)(1) or Rule 50(a) of the Wyoming Rules of Civil Procedure.

'b. There was sufficient evidence to make out a showing of negligkence (sic) in the operation on Plaintiff's left eye to make out a case of inference of negligence whereby the doctrine of Res Ipsa Loquitur should have been used to submit the case to the jury, including proximate cause.

'c. There was sufficient evidence of malpractice in the treatment of Plaintiff by Defendant at the time of the retinal detachment of Plaintiff's left eye and after, including proximate cause.

'd. There was sufficient evidence of malpractice in Defendant's treatment of Plaintiff after the loss of sight in Plaintiff's left eye concerning the failure to advise and recommend the removal of the eye, including proximate cause.

'e. There was sufficient evidence of fraudulent concealment by Defendant amounting to malpractice.

'f. There was sufficient evidence of failure to disclose risks and facts amounting to malpractice as violation of Defendant's duty to warn and disclose everything to Plaintiff, his patient.'

Appellee argues:

1. It is necessary for plaintiff to prove by the evidence of competent experts that the injury complained of was caused by defendant's negligence;

2. The custom of the medical profession to warn a patient of the possible risks which may result from a proposed treatment must be established by expert medical testimony;

3. The theory of res ipsa loquitur is not applicable in a case such as was before the court on the trial of this matter; and,

4. Plaintiff failed to carry his burden of proof that some conduct of defendant proximately caused the injury of which plaintiff complained.

We believe that the trial court was correct in granting defendant's motion for a directed verdict. Plaintiff failed to show any causal connection between defendant's alleged negligent acts and the plaintiff's injury. Proof of proximate causation is upon the plaintiff. Lemos v. Madden, 28 Wyo. 1, 200 P. 791, 794; Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74, 83; Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520, 522.

Plaintiff's witnesses were the plaintiff, his wife, and Robert Jessen, a physician licensed to practice in Wyoming, specializing in opthalmology.

Arguments (1), (3) and (4)f

These three plaintiff's assigned errors are similar and will be considered together.

Plaintiff contends that he did not give an informed consent to the operation on his left eye because the defendant failed to properly inform and advise him about the risks of the operation, and failed to advise the plaintiff that he had difficulty in extracting the lens in the first operation.

Questions asked of the plaintiff on direct examination and his answers, and the objection of the defendant were as follows:

'Q. At the time you went to the hospital for the second operation, the one on your left eye, had Dr. Stadnik said anything at all concerning any difficulty in the operation on the right eye? A. No. Absolutely not, because he was so pleased, everybody was so pleased. He never mentioned that there was no difficulty in the operation.

'Q. Did he ever say anything up to this time concerning having a difficult time extracting the lens? A. No, absolutely not. In fact, we never discussed the operation. It was never mentioned. It was a success, so I just-we never mentioned it. He never said it was a hard time taking it off or nothing.

'Q. Now, had you known that he had had difficulty extracting the lens in your first operation would this have made any difference as to your consenting to the second operation?

'MR. MULVANEY (attorney for defendant): Objection on the grounds the witness testified that he had no such knowledge.

'THE COURT: I will sustain the objection.'

Appellant has cited no authority in support of his position that this ruling of the trial court was erroneous. It is obvious that the plaintiff would have answered the objectionable question in the affirmative. There is nothing in the record to indicate that the defendant had in fact had a difficult time extracting the lens during the first operation, so the question assumes facts which are not in evidence and the objection to it was properly sustained. Plaintiff argues that certain hospital records show that the defendant had a difficult time extracting the lens during the first operation. While this is true, the records were not offered or received into evidence until after the plaintiff completed his testimony. No attempt was made to again ask the question of the plaintiff after the exhibit was received.

As to how plaintiff's knowledge that defendant had difficulty in extracting the lens in the first operation would have had an effect upon plaintiff's decision whether to have the second operation we are not advised. As to the first operation, the plaintiff testified that he had 'just a little' pain...