Vigil v. Herman

• Decision Date: 23 February 1967
• Docket Number: No. 8165,8165
• Citation: 424 P.2d 159,102 Ariz. 31
• Parties: Aurora P. VIGIL, Appellant, v. Dr. Jack J. HERMAN, Appellee.
• Court: Arizona Supreme Court

Page 159

424 P.2d 159

102 Ariz. 31

Aurora P. VIGIL, Appellant, v. Dr. Jack J. HERMAN, Appellee.

No. 8165.

Supreme Court of Arizona, In Division.

Feb. 23, 1967.

O'Reilly, Pollock, Murphy & Pizzo, Phoenix, for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, for appellee.

UDALL, Justice.

Aurora P. Vigil, plaintiff below, brings this appeal from the trial court's granting of a directed verdict in favor of the defendant, Doctor Jack J. Herman.

Commencing in about September of 1957 and continuing through September of 1960 the plaintiff consulted with and was treated generally by the defendand in his capacity as a general medical practitioner.

In April, 1962, plaintiff commenced this suit, alleging that due to defendant's failure to properly examine, diagnose, treat, prescribe or advise plaintiff, a tubercular condition from which she suffered was permitted to reach an advanced stage.

At the close of all the evidence the defendant was granted a directed verdict. The trial judge indicated that the verdict was granted for the following three reasons, stated by the defendant in his motion:

(1) The plaintiff failed to sustain the burden of proof in proving the medical standard in the community. (2) The plaintiff failed to show proximate cause between the alleged malpractice and the injury allegedly resulting therefrom

(3) Plaintiff failed generally to prove the material allegations of her complaint.

On this appeal plaintiff presents nine assignments of error, supported by ten propositions of law. It is necessary for us to consider only the points raised by assignments number 6 and 7, and to some extent, by numbers 8 and 9. The gist of plaintiff's claim in these assignments is that the medical standard in the community was properly established, that proximate cause was shown, and that plaintiff had established her case sufficiently to withstand a motion for directed verdict and to have the case submitted to the jury.

In order to establish the standard of medical practice, and thus to show what defendant should have, but allegedly did not do, plaintiff offered the following testimony of Dr. Clifford E. Ernst.

(NOTE: The basic facts of this case are hypothetically recited in the quotation. In a later part of this opinion the facts will be indiccated in greater detail, as necessary):

'Q. Doctor, I want you to assume a set of facts concerning a patient, and based upon those facts I will ask you questions.

Assume a female Spanish-American patient 24 years of age. She has had in her family home as a child some 10 to 14 years earlier a sister who has had thoracoplasty because of tuberculosis, a niece who has had a pulmonary resection because of pulmonary tuberculosis, a brother-in-law who has died because of pulmonary tuberculosis, a personal history which shows an illness three months long or longer in which the patient believe to have been tuberculosis.

Your records show that on November 16th, 1957, recent chest x-ray, 'normal'.

On May 11th, 1959 patient reports fainting at work.

On May 13th, 1959 patient reports malaise, fatigue, poor appetite.

May 19th a tubercular skin test is taken, and you treat the patient with vitamin injection.

May 21st the tuberculin skin test is read to the patient as three plus positive.

June 13th, 1959 x-ray report by the radiologist, Dr. Kennedy, reads:

'This individual will have to be observed very carefully for these is a good possibility that this represents a smouldering minimal tuberculosis lesion which we did not detect on the wet films.'

June 16th, cocci test and complement fixation test are taken, that is, the blood for one and the test administered for the other.

June 18th and June 23rd sputum is sent to the State Laboratory.

Now, subsequently, you have received the report back that the Valley Fever Skin test was negative and the complement fixation test of Valley Fever is negative.

At this point, Doctor, would the standard of practice in the community of Phoenix have required a general practitioner to follow and to continue to follow the symptoms of the patient?

'A. Yes.

'Q. And, doctor, assume the further added fact:

That on July 10th, the patient submits to a gastric washing which washing is reported on the 24th and 31st of August, 1959 as negative by smear and negative by culture.

Would the standard of practice in the community have required a general practitioner to continue to follow the symptoms of the patient?

'A. Yes.

'Q. Would the standard of practice have required the general practitioner to do further work-up such as lab studies? By that I mean x-ray, sputum, gastric washing.

'A. Yes.

'Q. And by following the symptoms, Doctor, does that include following the symptoms of fatigue, malaise, loss of appetite, loss of weight, fever and fluctuation of temperature? Does it include those things?

'A. All these factors have to be taken into consideration.'

In addition to the adove testimony, on the issue of standard of practice much of the testimony of the defendant is pertinent, and in view of our decision in Stallcup v. Coscarart, 79 Ariz. 42, 282 P.2d 791, it is not open to question that the standard in the community may be established by defendant's testimony. In this respect, Dr. Herman testified (a) as to what the standard of practice required generally of a general practitioner, and (b) as to what he actually did or Would have done, if he had had an opportunity. We emphasize the words 'would have done' because it is defendant's contention that plaintiff's uncooperativeness prevented him from doing the general 'work-up' which he allegedly would have performed if the plaintiff had cooperated. Defendant's claim that the plaintiff did not cooperate has no bearing on the sufficiency of plaintiff's attempt to establish the standard of practice in the community, for regardless of her attitude in this respect, a matter which we will fully consider later in this opinion, the fact remains that both Dr. Ernst and the defendant testified as to what the standard of practice required, and the defendant testified in great detail concerning what he actually did or allegedly would have done. In view of the abundance of testimony on this issue, we find no merit in defendant's claim that the standard was not shown sufficiently so as to provide the jury with a standard by which to measure the defendant's conduct. It follows that the trial court erred when it found that the standard of medical practice in the community was not adequately established by the plaintiff.

We now turn our consideration to the remaining questions of whether the plaintiff sufficiently established proximate cause and the general allegations of her complaint. In answering these issues we are guided by the following often-stated principles: Figueroa v. Majors, 85 Ariz. 345, at 346, 338 P.2d 803, at 804:

'It is well settled in this jurisdiction that a motion for a directed verdict for the defendant admits the truth of whatever competent evidence the opposing party has introduced, including all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable able to the opposing party * * * It is further fundamental that a verdict will not be directed where the evidence on material facts is conflicting, or where on undisputed facts reasonable and fairminded men may differ as to the inferences and conclusions to be drawn, or where different conclusions might reasonably be reached by different minds, and thus the question of negligence and proximate cause is one of fact to be submitted to the jury and not a question of law for the court; if, upon all the facts and circumstances, there is a reasonable chance or likelihood of the conclusions of reasonable men differing, then the question is one for the jury * * *'

We have reviewed the evidence with the above principles in mind, and it is necessary for us to go into some detail in order to clarify our conclusion that a verdict should not have been directed for the defendant. The evidence is sharply conflicting and raised, among others, the following material issues:

(1) In the summer of 1959, after defendant had obtained a three-plus positive skin test, a negative gastric washing and a radiologist's report that the plaintiff...