Swang v. Hauser, 42036

• Decision Date: 18 September 1970
• Docket Number: No. 42036,42036
• Citation: 288 Minn. 306,180 N.W.2d 187
• Parties: Tina SWANG, Appellant, v. Dr. Victor P. HAUSER, Respondent, Dr. Carl C. Chatterton, Respondent.
• Court: Minnesota Supreme Court

Page 187

180 N.W.2d 187

288 Minn. 306

Tina SWANG, Appellant, v. Dr. Victor P. HAUSER, Respondent Dr. Carl C. Chatterton, Respondent.

No. 42036.

Supreme Court of Minnesota.

Sept. 18, 1970.

Syllabus by the Court

Verdicts against plaintiff in medical malpractice actions against two physicians were properly directed where (a) the claim for alleged negligence was wholly without requisite medical testimony to support it, and (b) the claim for technical assault and battery because of alleged unconsented surgery was barred by the statute of limitations, Minn.St. 541.07.

Thomas F. Burns, Minneapolis, for appellant.

Meagher, Geer, Markham & Anderson, and Robert M. Frisbee and O. C. Adamson, II, Minneapolis, for Dr. Victor P. Hauser.

Altman, Geraghty, Leonard & Mulally, St. Paul, for Dr. Carl C. Chatterton.

Heard before KNUTSON, C.J., and NELSON, SHERAN, PETERSON, and JAMES F. MURPHY, JJ.

OPINION

PETERSON, Justice.

Plaintiff, Tina Swang, instituted medical malpractice actions against two physicians, Dr. Victor P. Hauser and Dr. Carl C. Chatterton, alleging negligence by each of them and, additionally, alleging technical assault and battery by Dr. Hauser. The trial court granted the defendants' motions for a directed verdict. Plaintiff moved for a new trial and appeals from the order denying that motion.

Plaintiff, then 73 years of age, sustained a fall at the home of her niece in St. Paul on February 13, 1964. She immediately experienced pain in her right hip. Defendant Hauser, the family physician of the niece, was called to the home and, after preliminary examination, ordered the plaintiff taken to St. Luke's Hospital. The initial X-ray examination at the hospital did not reveal a fracture. Because he was apprehensive of the stiffening effects of arthritis manifested in her right hip were plaintiff to remain stationary, Dr. Hauser ordered her to move about. The pain did not diminish, so Dr. Hauser had the hip X-rayed again on March 6. This time a fracture was revealed.

Defendant Hauser advised plaintiff that she would have to undergo pin-installation surgery. He told her at the same time that he was scheduled to go on vacation and that he was turning her over to a Dr. Pedersen, who would perform the pinning operation within the week. Plaintiff, however informed Dr. Pedersen the next day that she wanted to consult defendant Chatterton, an orthopedic surgeon, so Dr. Pedersen turned the patient over to defendant Chatterton. Exactly what he told plaintiff is disputed, but according to plaintiff's testimony she was advised that she should have prosthetic surgery, a procedure involving actual replacement of part of the hip. Dr. Chatterton performed no surgery upon plaintiff and, instead, upon defendant Hauser's return from vacation on March 31, entered 'Patient returned to her Dr. Hauser' on the hospital chart.

Defendant Hauser installed a pin in plaintiff's hip on April 7, 1964. Plaintiff was discharged from the hospital on December 5, 1964. The surgery, though performed properly, did not provide the hoped-for relief. According to Dr. Daniel Nelson, a Minneapolis orthopedist to whom plaintiff was referred by her Montevideo physician, the femur had degenerated and made prosthesis necessary, which he did in November of 1965. Since that time plaintiff has experienced little pain and has been able to walk better.

Plaintiff's action is based upon her claims that she had never been informed by either defendant of the transfer back from Dr. Chatterton's to Dr. Hauser's care and that she had been led to understand that Dr. Chatterton would perform a prosthesis. She maintains that even after the April 7 surgery by Dr. Hauser she thought that it was Dr. Chatterton who had performed the surgery. There is evidence, however, that plaintiff was aware even prior to the surgery of who was to operate on her and of what the operation consisted. In any event, plaintiff conceded in a deposition used at trial that she was aware 6 weeks thereafter, thus about the middle of May 1964, that a pin had been inserted by Dr. Hauser.

Summons and complaint were served on defendant Chatterton on August 5, 1966, and on defendant Hauser August 11, 1966. Though less than clearly stated, these complaints (somewhat more precisely articulated at trial and upon...