Winkjer v. Herr

• Decision Date: 04 April 1979
• Docket Number: No. 9519,9519
• Citation: 277 N.W.2d 579
• Parties: Dean WINKJER, Plaintiff and Appellant, v. John HERR, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 579

277 N.W.2d 579

Dean WINKJER, Plaintiff and Appellant, v. John HERR, Defendant and Appellee.

Civ. No. 9519.

Supreme Court of North Dakota.

April 4, 1979.

Rehearing Denied April 24, 1979.

Dean Winkjer, Williston, plaintiff and appellant, pro se.

Zuger & Bucklin, Bismarck, for defendant and appellee; argued by Leonard H. Bucklin, Bismarck.

SAND, Justice.

Plaintiff, Dean Winkjer, appealed from a judgment dismissing with prejudice his medical malpractice action against the defendant, Dr. John Herr. Summary judgment was granted in favor of the defendant on the grounds the plaintiff failed to demonstrate he had expert medical testimony to establish defendant was negligent in the diagnosis and treatment of the plaintiff, and that plaintiff failed to demonstrate he had any evidence there was any known risk involved in a specific treatment as to give rise to a duty in the defendant to inform the plaintiff of that risk. We affirm.

According to the medical records and a sworn summary of the medical history of this case submitted by the defendant, plaintiff first contacted the defendant on 22 February 1974. Plaintiff desired to wear contact lenses and sought the opinion of the defendant, a certified ophthalmologist, on whether or not soft contact lenses would cause damage to his eyes. Although plaintiff was assured he could wear soft contacts, the defendant observed that the intraocular pressure of plaintiff's eyes was elevated. Intraocular pressure was also elevated during a subsequent examination conducted in May 1974. Plaintiff returned to the defendant in August 1974 and the pressure was still high. Defendant diagnosed plaintiff's condition as glaucoma and prescribed a 1.0% Solution of pilocarpine. Also on this date the record indicates defendant observed evidence of early posterior subcapsular changes in both eyes.

Because of blurred vision and other general discomforts caused by the pilocarpine, plaintiff's treatment was changed to a 0.03% Solution of phospholine iodide administered twice daily. In October 1974 plaintiff's prescription was changed to a 0.06% Solution of phospholine iodide administered once daily. A 0.03% Solution of phospholine iodide administered twice a day was tried from 15 November 1974 to 29 November 1974 when plaintiff was again returned to a 0.06% Solution of phospholine iodide.

Plaintiff was asked to return to the defendant's office in January 1975 because the defendant told him there was evidence that phospholine iodide could cause the formation of cataracts. The use of phospholine iodide in the treatment of the plaintiff was discontinued on 17 January 1975 and pilocarpine was again prescribed. On this date plaintiff was told he had developing cataracts. Plaintiff contended in an affidavit submitted to the district court that on the same date defendant also told him the phospholine iodide had caused the cataracts. In both his trial and appellate briefs, defendant denied making this latter statement. (As discussed later herein, even if we assume the statement was made it would not be dispositive of the issue of negligence.)

Through the mutual consent of the plaintiff and the defendant, plaintiff was examined by Dr. Richard Brubaker, a noted specialist in the field of glaucoma, at the Mayo Clinic in Rochester, Minnesota. After examining the plaintiff, Dr. Brubaker recommended to the defendant that plaintiff be removed from glaucoma control drugs. In September 1975 it was necessary for plaintiff to undergo cataract surgery to both eyes.

This action was commenced by summons and complaint in September 1976. The defendant served interrogatories on the plaintiff which requested, among other things, the names of any experts who had investigated the matter and the substance of their opinions. Request was also made that the interrogatories be supplemented in accordance with Rule 26(e), North Dakota Rules of Civil Procedure, if new information was obtained or the original answers were no longer correct. Plaintiff answered he had not consulted or arranged with any medical witnesses in connection with the action. That answer was not supplemented at the time of the summary judgment.

A motion for summary judgment was filed by the defendant on 13 September 1977. The motion was supported by the affidavits of the defendant and Dr. Thomas Ellingson, a Bismarck ophthalmologist specializing in the treatment of cataracts, and also by the depositions of Dr. Brubaker, and Dr. Donald Doughman, a certified ophthalmologist from the University of Minnesota Hospitals who examined Winkjer in October 1976. Plaintiff resisted the motion through affidavits of his own, a certificate from the Food and Drug Administration, and the plaintiff's medical records made by the defendant. The hearing on the motion was held on 12 October 1977, after which the district court announced withholding final decision until 14 November 1977, during which time plaintiff would be allowed to submit additional materials. On 10 November 1977 plaintiff filed a motion requesting the court to reopen the record and allow the submission of added materials. This motion was heard on 12 December 1977, at which time the court received the additional materials the plaintiff submitted and also granted him extended time to submit any supplemental briefs.

An order granting defendant's motion for summary judgment was filed on 12 April 1978 and judgment was entered accordingly. The plaintiff appealed from the judgment and has raised the following issues:

(1) Must plaintiff have available expert testimony to submit to the trier of facts on the standard of care in the diagnosis and treatment of glaucoma;

(2) Did defendant, under the circumstances of this case, have a duty to warn plaintiff of a cataractous risk of treatment with phospholine iodide?

The party who moves for summary judgment has the burden of clearly showing there is no genuine issue of a material fact to be determined. A motion for summary judgment will be granted only if after construing the evidence in favor of the party (in the light most favorable to the party) against whom summary judgment is sought, it appears there is no genuine issue of fact and the movant is entitled to judgment as a matter of law. Rule 56, NDRCivP; Sagmiller v. Carlsen, 219 N.W.2d 885 (N.D.1974); Ray v. Northern Sugar Corporation, 184 N.W.2d 715 (N.D.1971); Temme v. Traxel, 102 N.W.2d 1 (N.D.1960).

Whenever a motion for summary judgment is made and supported by affidavits and documentary evidence establishing a prima facie showing that no genuine issue of fact exists and that the movant is entitled to summary judgment as a matter of law, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided by Rule 56, NDRCivP, must set forth specific facts showing there is a genuine issue for trial. The party moved against cannot defeat a showing of no genuine issue of fact by a mere assertion that an issue of fact exists, but must back it up with a reasonable showing that sufficient evidence is available to justify trial. Ray v. Northern Sugar Corporation, supra; Felt v. Ronson Art Metal Works, 107 F.Supp. 84 (D.C.Minn.1952).

The first question to be examined is whether or not the showing made by the movant, without regard to whether or not or how the opposing party has responded, demonstrates there is no genuine issue as to any material fact and as a result a party is entitled to a judgment as a matter of law. Sagmiller v. Carlsen, supra. The burden of proving the existence of a genuine issue of fact is not shifted to the opposing party until the movant has successfully met his burden of showing the nonexistence of such issues of fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Generally, a prima facie case of medical malpractice must consist of evidence establishing the applicable standard of care, violation of that standard, and a causal relationship between the violation and the harm complained of. Haven v. Randolph, 161 U.S.App.D.C. 150, 151, 494 F.2d 1069, 1070 (1974); Kosberg v. Washington Hospital Center, Inc., 129 U.S.App.D.C. 322, 394 F.2d 947 (1968).

Defendant in this case contended there was no genuine issue of fact as to the applicable standard of care or as to the violation of that standard.

A physician is required to exercise such reasonable care and skill as are exercised ordinarily by physicians practicing in similar localities ¹ in the same general line of practice. Benzmiller v. Swanson, 117 N.W.2d 281 (N.D.1962); Stokes v. Dailey, 97 N.W.2d 676 (N.D.1959); McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854 (1930); Whitson v. Hillis, 55 N.D. 797, 215 N.W. 480 (1927).

Defendant in this case diagnosed the plaintiff as having glaucoma and prescribed pilocarpine and phospholine iodide for the treatment of that disease. Defendant's evidence, in the form of depositions and affidavits offered in support of his motion for summary judgment, demonstrated that glaucoma is characterized by increased intraocular pressure sufficient to cause optic disc damage eventually resulting in blindness. This disc damage and resulting blindness in today's medical knowledge is thought to be irreversible. The depositions and affidavits disclosed that some persons can have elevated intraocular pressure with no resulting disc damage. These persons are termed as having ocular hypertension for which generally no treatment is prescribed as there is no resulting injury. Although there may in some cases be characteristics commonly associated with glaucoma that are not found in ocular hypertension, the only sure method of distinguishing if a person with elevated intraocular pressure has glaucoma or ocular hypertension is through a test of time to determine if there is subsequent ocular disc damage.

The depositions of Dr. Brubaker and Dr. Doughman point out the higher degrees of damage caused by glaucoma are usually preventable if the...