Wheatley v. Heideman

Decision Date05 April 1960
Docket NumberNo. 49888,49888
Citation102 N.W.2d 343,251 Iowa 695
PartiesBenjamin W. WHEATLEY, as next friend of Brenda Wheatley, a minor, Appellant, v. H. F. HEIDEMAN, Appellee.
CourtIowa Supreme Court

Fisher & Pickens, and Harry Wilmarth, Cedar Rapids, for appellant.

Alex M. Miller, Des Moines, and D. M. Elderkin, Cedar Rapids, for appellee.

GARFIELD, Justice.

This is a law action for damages against H. F. Heideman, an osteopathic physician at Coggon (1950 population 604), for alleged negligence in treating an injured eye of two-year-old Brenda Wheatley, herein referred to as plaintiff. The action was brought in her behalf by her father as next friend. Trial resulted in a jury verdict for defendant. From judgment thereon plaintiff appealed.

Monday, November 15, 1954, plaintiff's right eye was injured while playing in her parents' farmyard. The child came toward her mother crying 'chickie, chickie.' The eyelid was cut about one-fourth inch in length and fat tissue about the size of a pea protruded from it. The mother assumed the cut was caused by a chicken or rooster. She immediately took the child to defendant, closest doctor to their farm. He had previously treated others in the family.

Defendant pushed the protruding tissue back into the wound in the lid, cleansed and sterilized it, applied a local anaesthetic, took three stitches in the incision, bandaged it, prescribed some ointment for the mother to put in the eye and told her to return the child on Wednesday. After the tissue was pushed back into the incision plaintiff was placed on a treatment table, her arms under her sides, a towel wrapped around her to restrain her and defendant, his wife who served as a nurse, and plaintiff's mother, at defendant's request, held the child. Defendant then attempted with the aid of a 100-watt light to examine the eyeball to see if it was injured. He testified that because of plaintiff's struggling he was able to see the eye by fleeting instances only. He admitted, however, that in sewing up the wounded lid he inserted a needle in it six times.

At defendant's direction the child was returned to defendant for treatment on Wednesday, Monday, November 22, and Wednesday the 24th. Defendant removed the stitches from the lid on the 22d. Mr. and Mrs. Wheatley testified they also returned to defendant with Brenda on Wednesday, December 1. Defendant and his wife denied this. The parents took plaintiff to Dr. Foster, an eye specialist in Cedar Rapids, December 3. He found a cut in the eye itself directly beneath the cut in the lid. Sight could not be restored to the eye, Dr. Foster removed it April 20, 1955, and a glass eye was inserted.

Plaintiff contends defendant should have discovered the injury to the eye itself and should not have done what he did to the lid without first examining the eyeball. There is substantial evidence the eye could probably have been saved by prompt treatment within two or three days from the time of the injury but this was impossible after a delay of more than two weeks. This and other testimony will be referred to later in considering the assigned errors.

I. Plaintiff first assigns as error the trial court's refusal to require defendant to reveal the names of those in his office when plaintiff was there for treatment. Plaintiff attempted to obtain these names by written interrogatories under rules 121 et seq., Rules of Civil Procedure, 58 I.C.A., and by deposition of defendant pursuant to rules 140 et seq. When the deposition was taken defendant refused to give such names on the ground he was not privileged to answer, presumably because of section 622.10, Codes, 1954, 1958, I.C.A., forbidding disclosure of any confidential communication between physician and patient and those in some other relationships. Further ground of the refusal was that defendant could not be required under rule 143 to list the witnesses he expected to call at the trial. Defendant admitted he knew the names plaintiff sought to obtain and their addresses.

Upon plaintiff's application under rule 134 to compel answers the court did not sustain either of the above grounds of defendant's refusal but denied the application on the ground, not advanced by defendant, the information was irrelevant. Plaintiff later sought to obtain this information by other written interrogatories but the trial court again ruled, this time on defendant's objection, it was irrelevant.

Subject to certain restrictions not here applicable rule 143 provides a 'deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * * provided that a party shall not be required to list the witnesses he expects to call at the trial. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

Importance to plaintiff of the names of those in defendant's office when she was there is clear from what transpired at the trial. Defendant contended and offered evidence that on plaintiff's first visit to his office he advised Mrs. Wheatley to take the child to the specialists, Drs. Foster and Noe in Cedar Rapids, and the parents did not follow the advice. Plaintiff contended, however, and offered testimony that no such advice was given until December 1 which was much too late for effective treatment of the cut eyeball. Witnesses for defendant, present in his office outside the room in which Brenda was being treated, testified to hearing statements by defendant to Mrs. Wheatley. The court instructed the jury that if on the first occasion defendant was consulted he advised the parents to take Brenda to a specialist and they did not follow the advice the verdict should be for defendant.

The court was correct in not sustaining the grounds on which defendant refused to divulge the information sought. It was not privileged under Code, section 622.10, I.C.A. Cross v. Equitable Life Assur. Society, 228 Iowa 800, 806, 293 N.W. 464, and citations; Kaplan v. Manhattan Life Ins. Co. of New York, 71 App.D.C. 250, 109 F.2d 463, 465; Willig v. Prudential Ins. Co of America, 71 Ohio App. 255, 49 N.E.2d 421, 422, and citations; 58 Am.Jur., Witnesses, section 421; 97 C.J.S. Witnesses § 295c, pp. 835-836.

Nor did the written or oral interrogatories require defendant to list the witnesses he expected to call at the trial. Hitchcock v. Ginsberg, 240 Iowa 678, 37 N.W.2d 302, and citations; Article by Prof. Allan D. Vestal, 43 Iowa Law Review 8, 31.

We think the court was in error in ruling the desired names were irrelevant. Rule 143 as amended in 1957 is basically rule 26(b), Federal Rules of Civil Procedure, 28 U.S.C.A., with the added proviso 'that a party shall not be required to list the witnesses he expects to call at the trial.' Article by Professor Vestal, supra, at page 34.

In Iowa and elsewhere provisions for discovery are interpreted broadly and liberally to effect their purpose. Hardenbergh v. Both, 247 Iowa 153, 160-161, 73 N.W.2d 103, 107-108, and citations; 17 Am.Jur., Discovery and Inspection (1957), section 6; Annotation 8 A.L.R.2d 1134, 1136-1137.

27 C.J.S. Discovery § 20 (1959) states: 'The modern policy * * * is that the utmost liberality should prevail in the matter of discovery, the trend being to broaden the scope of discovery so as to give litigants access to all material facts * * *.' To like effect are Id., § 21; Hitchcock v. Ginsberg, supra, 240 Iowa 678, 679, 37 N.W.2d 302, 303; Nehring v. Smith, 243 Iowa 225, 228, 49 N.W.2d 831, 833; Hardenbergh v. Both supra.

The test of relevancy under our present rule 143 and federal rule 26(b) is relevancy 'to the subject matter involved in the pending action.' The federal courts have frequently held the term relevant is not here used in the narrow sense of determining admissibility of evidence upon a trial. This is implicit from the last sentence of the rule, heretofore quoted, which provides the information sought is not objectionable if it appears reasonably calculated to lead to the discovery of admissible evidence. See Mackerer v. New York Cent. R. Co., D.C.N.Y., 1 F.R.D. 408, 409; Kaiser-Frazier Corp. v. Otis & Co., D.C.N.Y., 11 F.R.D. 50, 53; Foremost Promotions, Inc. v. Pabst Brewing Co., D.C.Ill., 15 F.R.D. 128, 129; Vilastor Kent Theatre Corp. v. Brandt, D.C.N.Y., 18 F.R.D. 199; Lewis v. United Air Lines, D.C.Conn., 27 F.Supp. 946, 948.

The federal courts have also held several times that 'relevant to the subject matter involved in the pending action,' as used in this connection, is not confined to relevancy to the precise issues in the pleadings. Kaiser-Frazier Corp. v. Otis & Co. supra; Lewis v. United Air Lines, supra; Rose v. Bourne, Inc., D.C.N.Y., 15 F.R.D. 362, 363; Enger-Kress Co. v. Amity Leather Products Co., D.C.Wis., 18 F.R.D. 347. See also 17 Am.Jur., Discovery and Inspection, section 12.

Interrogatories should not be disallowed as irrelevant unless clearly outside the scope of the case. United States v. Jerrold Electronics Co., D.C.Pa., 168 F.Supp. 146, 148. See also Mackerer v. New York Cent. R. Co., supra, D.C., 1 F.R.D. 408, 409.

Further discussion of plaintiff's first assigned error is deemed unnecessary.

II. Plaintiff next assigns error in the withdrawal, on defendant's motion, of all but two of her pleaded specifications of negligence. These two were alleged failure to advise plaintiff's parents (1) of the ineffectiveness and inadequacy of the treatment defendant administered and (2) that plaintiff ought to receive treatment by those qualified to administer proper and effective treatment. As previously stated, the jury was instructed that if defendant advised the parents, on the first occasion he treated Brenda, to take her to a specialist and they did not follow the advice the verdict should be for defendant.

Thus the charges of negligence submitted were confined to the...

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