Swan v. Lamb
| Decision Date | 16 August 1978 |
| Docket Number | No. 14823,14823 |
| Citation | 584 P.2d 814 |
| Parties | Jeannette U. SWAN, Plaintiff and Appellant, v. Dr. Robert H. LAMB and Dr. Dennis D. Thoen, Defendants and Respondents. |
| Court | Utah Supreme Court |
W. Eugene Hansen and Ralph L. Dewsnup of Hansen & Orton, Salt Lake City, for plaintiff and appellant.
Rex J. Hanson, Ray R. Christensen, Salt Lake City, for defendants and respondents.
The respondents are doctors and were sued by appellant for injuries due to alleged malpractice. The jury found in favor of the doctors and the appellant has appealed, relying solely on one claim of error, viz: The refusal of the court to permit her expert medical witness to testify as to the standard of care required of the doctors who operated upon her. That witness had been permitted to testify in the courts of Utah on prior occasions. He was a neurosurgeon from Los Angeles, California, and had the following qualifications:
(He) received his M.D. degree from St. Louis University School of Medicine in 1942, after which he interned at Huntington Memorial Hospital in Pasadena, California. For three years, from 1943-1946, he was a general surgeon in the U.S. Army in the European theatre. Following his military service he fulfilled his residency requirements in neurosurgery at White Memorial Hospital which was associated with the Loma Linda Medical College. In 1948-1949 he served as instructor of resident neurological surgery at Albany Medical College in New York. In that assignment, he was charged with instructing and training in the fields of neurology and neurosurgery. In 1949, the doctor returned to California and started private practice where he has continued to the present. For 25 years (he) has headed a neurological and neurosurgical clinic at the Orthopedic Hospital of Los Angeles. The Orthopedic Hospital affiliates with the University of Southern California Medical School and is involved in teaching and training resident physicians from all over the United States. (He) was also the head of the Department of Neurosurgery at the Queen of Angels Hospital in Los Angeles for 12 years and served for a time on the faculty school of nursing. During such time, said hospital had a complete training program for interns and residents as well as a medical school affiliation. (He) is a member of numerous medical societies, both national and regional, including the American Medical College, Western States Federation of Neurological Sciences, California Medical Association, Southern California Neurosurgical Society, and Los Angeles County Medical Association.
In addition to the above mentioned credentials, the witness testified that, over the course of his professional career he personally had performed over a thousand lumbar decompression laminectomies and over a thousand myelograms of the types that were performed upon Mrs. Swan. He was asked whether he was acquainted with standards of skill and care for neurosurgeons practicing in any states outside of California. His affirmative response was followed by the following explanation:
From my education background, from the individual education background, from being a graduate of a grade A medical school, from being trained in various parts of the country at different times, from being accepted into the Army and with other men, other doctors from all over the states of the union and all on the same equal level in the Army, from my practice in well, in the large communities where you have medical schools and where you have hospitals, where you have training programs, and you have communications and you have books, you have publications, you have the competition of one area against the other. This establishes the practice throughout the whole country and it's on the same level.
When the witness was asked if he had an opinion as to whether or not there was a different standard of care for various types of doctors who operate to enter the spinal canal, objections by respondents were sustained for lack of proper foundation. Appellant offered to prove that the standard of care for all doctors entering the spinal canal area was the same. Appellant further offered to prove that myelogram and decompression laminectomy procedures of the types to which she had been subjected were routinely performed by persons in respondents' fields and, as such, were standardized in much the same way as the treatment of a broken arm.
After considering the issue of what standard of medical care to apply, the court rejected appellant's arguments for application of a similar community standard, as well as a standard of the entire medical profession; and ruled that Utah law required a doctor to exercise only that degree of skill and care required of the average competent medical practitioner in the defendant's same locality; and that in order for the witness to testify in the case, he had to demonstrate "personal contact or experience within the State of Utah." The judge ruled that since the witness had not practiced his profession in Utah, he could not testify as to the standard of care required of a doctor practicing here.
The respondents performed a myelogram on the appellant and, thereafter, a lumbar decompression laminectomy. The condition of the appellant worsened considerably, and she claims that it was due to improper and negligent procedures in connection with the operation. She was not permitted to have her expert testify to that effect; and, therefore, claims she should have a new trial with directions to the trial court as to the guidelines for admitting testimony of expert witnesses in connection with malpractice cases.
Despite the court's preclusion of his opinion concerning the standard of care, appellant's expert was deemed qualified to express an opinion with probable medical certainty as to what caused the injuries. He stated that Mrs. Swan's paraplegia was due to trauma which occurred principally at the time of surgery. As described by this witness, the irritation to the nerve roots caused by nonremoval of the pantopaque caused them to be inflamed or injured. Said injury was compounded when the nerve roots were traumatized upon surgical removal of the posterior arch, thus producing immediate paralysis.
Appellant's evidence of causation, stripped of the benefit of her expert's testimony as to the standard of care, was deemed insufficient to survive respondents' motion to dismiss as to the negligence count of her complaint; and the complaint as to that matter was dismissed.
The experience of the expert witness was such as to make him eminently qualified to testify as to whether or not the respondents acted negligently and used improper procedures in operating on the appellant. The question of whether or not the local doctors know better and, therefore, do not have to be as good as doctors in other areas of the country has been treated by the courts of other states. Our own Court has considered the problem on several occasions.
In the case of Baxter v. Snow 1 this Court said:
. . . To recover, the plaintiff was required affirmatively to show that the defendant in the treatment did not exercise such reasonable care, skill, and diligence as ordinarily is exercised by skilled otologists in the same vicinity . . .
The same holding was made in 1938 in the case of Edwards v. Clark, et al., 2 where physicians in general practice were involved. In Anderson v. Nixon 3 our Court, in addressing the requirement of a physician's competence, stated:
In malpractice cases, whether a physician or surgeon is negligent . . . depends upon whether he has used or failed to use the ordinary care and skill required of doctors in the community which he serves . . .
There are many other Utah cases holding that the physician is held to the standard of care of physicians doing the same type of work in the vicinity. 4
In the case of Baird v. National Health Foundation 5 it was stated that it was negligence for physicians to fail to apprise themselves of symptoms that are present and to diagnose and correctly treat the patient on the basis of those symptoms. This statement was cited in the Utah case of Anderson v. Nixon, supra.
It thus appears that in the past, this Court has stated that the doctor in treating a patient cannot be held to be negligent unless it is shown that he did not comply with the standards used and approved by other doctors in the same vicinity. Those holdings were proper at the times when they were made; however, there is no reason to hold that doctors in Salt Lake City who profess to be experts in a field of surgery or medicine should not be held to the standard of care exercised by experts in the same field in cities of comparable size and throughout the medical profession.
Our quality of medical care in Utah rates with the best in the nation. Our hospitals are among the finest with the most recent technology, and the medical college at the University of Utah enjoys an outstanding reputation. In addition, doctors practicing their profession here come from various medical colleges throughout the nation. Medical journals are available nationally as are seminars and workshops. There is no need for doctors here to have a lower standard of care than that of other doctors who are practicing in similar localities. Indeed, it is doubtful that any physician in the State of Utah would be willing to admit that his skill and knowledge is not equal to any other physician trained in his field, or that his ability is less than that of doctors trained and practicing in other cities.
True it may be that doctors practicing in small rural communities cannot be expected to have the facilities or the equipment to perform equally as well as can physicians in Salt Lake City; however, they have the same quality of training and should know enough to refuse to undertake operations or to treat patients if they are not in a position to successfully administer the needed treatment save perhaps in...
To continue reading
Request your trial
-
Morrison v. MacNamara
...Runyon v. Reid, 510 P.2d 943, 950 (Okl.1973); Incollingo v. Ewing, 444 Pa. 263, 274, 282 A.2d 206, 214 n. 5 (1971); Swan v. Lamb, 584 P.2d 814, 818 (Utah 1978); Hundley v. Martinez, 151 W.Va. 977, 995, 158 S.E.2d 159, 169 This approach has been criticized because of the difficulty in determ......
-
Birkner v. Salt Lake County
...See, e.g., Paull v. Zions First National Bank, 18 Utah 2d 183, 417 P.2d 759 (Utah 1966), overruled on other grounds, Swan v. Lamb, 584 P.2d 814 (Utah 1978). Accord Brazil v. United States, 484 F.Supp. 986 (N.D.Ala.1979); Grippe v. Momtazee, 705 S.W.2d 551 (Mo.Ct.App.1986); Coyne v. Cirilli,......
-
Jenkins v. Parrish
..."same locality" standard. The facts of the instant case clearly call for the application of the similar locality rule. Swan v. Lamb, Utah, 584 P.2d 814 (1978). See also Farrow v. Health Services Corp., Utah, 604 P.2d 474 (1979). The defendant, practicing in a field as specialized as cardiac......
-
Dalley v. Utah Valley Regional Medical Center
...Bank & Trust Co., 770 P.2d 113, 114 (Utah 1988).3 Farrow v. Health Services Corp., 604 P.2d 474, 476-77 (Utah 1979); Swan v. Lamb, 584 P.2d 814, 817 (Utah 1978).4 See generally Huggins v. Hicken, 6 Utah 2d 233, 310 P.2d 523 (1957).5 See, e.g., Burton v. Youngblood, 711 P.2d 245 (Utah 1985);......
-
A Plaintiff's Lawyer Picks the 10 Best and 10 Worst Changes in Utah Tort Law
...et seq., Utah Code Annotated. [3] See 78-27-38, Utah Code Annotated. [4] 601 P.2d 152 (Utah 1979). [5] 693 P.2d 661 (Utah 1984). [6] 584 P.2d 814 (Utah 1978). [7] Elkington v. Foust, 618 P.2d 37 (Utah 1980). [8] Stoker v. Stoker, 616 P.2d 590 (Utah 1980); Noble v. Noble, 761 P.2d 1369 (Utah......