(concurring in part and dissenting in part).
I concur in the reversal of summary judgment in favor of defendant Pharmaseal. I dissent in the affirmance of summary judgment in favor of Dr. Burress and Presbyterian Hospital.
The purpose of this dissent is not to declare defendants liable. That is not the function of this Court in an appeal from summary judgment. Our function is to determine whether a genuine issue of material fact exists. If it does exist, the jury shall then decide by verdict whether plaintiff is entitled to recover damages. The medical malpractice explosion should not deter this Court in scrutinizing the facts and the law.
A. Summary judgment did not hasten the administration of justice.
The claimed act of malpractice occurred August 30, 1971. The complaint was filed May 23, 1973. On October 21, 1974, seventeen months later, the trial setting of November 26, 1974 was vacated because considerable discovery was yet to be had. On February 27, 1975, defendant Pharmaseal moved to vacate the trial setting of April 29, 1975 because plaintiff’s deposition was not taken until February 11, 1975. On April 21, 1975, almost two years after the complaint was filed, the trial setting was vacated a second time. On September 15, 1975, notice was issued of a pretrial conference to be held September 24,1975. It was not held. It was reset in December. On November 26, 1975, plaintiff submitted interrogatories to defendant Pharmaseal. On December 1, 1975, the trial setting was vacated a third time and the court ordered that there shall be no continuance or vacating of the February, 1976 trial date. The trial date was set at Monday, February 2, 1976.
On January 16, 1976, almost three years after the complaint was filed, defendants moved for summary judgment. It was set for hearing on January 26, 1976. It was not heard on that date.
On January 26, 1976, the deposition of plaintiff’s wife was taken by defendants. On January 29, 1976, the defendants took the depositions of plaintiff’s witnesses, Doctors John W. Ormsby and Bernard S. Goffe in Seattle, Washington. Plaintiff took the deposition of Doctor G. Gordon Hale on January 30, 1976. On January 30, 31, 1976, plaintiff took the depositions of Doctors J. E. Goss and A. G. Simms, II, in Albuquerque.
On the morning of February 2, 1976, before the selection of the jury, defendants’ motion for summary judgment was heard. After 94 pages of rambling argument, which took approximately two hours, the trial court granted all defendants a summary judgment without consideration of plaintiff’s medical testimony. Two and two-thirds years had passed since the complaint was filed and four years and five months after the claimed act of malpractice. The trial court chose the summary judgment route rather than the trial by jury route.
More than five years have now elapsed since the claimed act of malpractice. Summary judgment, under the circumstances of this case, on the morning of trial, was an act of injustice to plaintiff.
In a specially concurring opinion, I said: Summary judgment is a dangerous instrument in the administration of justice when it denies a party the right to trial based upon factual issues. The obvious purpose of the rule from its origin in New Mexico in 1949, was to hasten the administration of justice and to expedite litigation by avoiding needless trials. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775 (1949). This has not proven true in actual experience.
The history of Rule 56(c) in New Mexico indicates that summary judgment does not hasten the administration of justice; that trial courts decide issues and grant summary judgments which, they believe, avoids a large trial docket. In the vast majority of summary judgments appealed, reversals occurred, and trial denied was trial delayed. It is the policy of courts of review to grant the right of trial whenever justice demands it. Trial courts must find a legal rather than a factual issue upon which to grant summary judgment.
Tapia v. McKenzie, 83 N.M. 116, 120, 489 P.2d 181, 185 (Ct.App. 1971).
In medical malpractice actions, summary judgment should not be a substitute for trial on the merits because, generally, the ultimate decision will be based on opinions of opposing medical experts or on the judicial determination of subjective facts. Expert opinion testimony is often based on facts or data made known to the expert, even though the facts or data are not admissible in evidence. Rules 702, 703 and 704 of the New Mexico Rules of Evidence [§§ 20-4-702, 703, 704, N.M.S.A.1953 (Repl. Vol. 4, 1975 Supp.)].
Summary judgment procedure involves a determination of whether there is a “genuine issue as to any material fact.” Rule 56(c). This “material fact” relates to the events, or happenings or circumstances which give rise to a medical malpractice claim. In the instant case, the “material facts” relate to a mechanical, non-technical procedure undertaken by Dr. Burress and the proximate cause of the injury suffered by the plaintiff.
The “conspiracy of silence” in the medical field places a heavy burden on patients, and expert medical testimony of opposing doctors should be accepted with caution in making the determination of a “genuine issue as to any material fact.”
Where defendants seek summary judgment, plaintiff is entitled to the benefit of all reasonable doubts in determining whether a genuine issue exists as to any material fact in the case. Skarda v. Skarda, 87 N.M. 497, 536 P.2d 257 (1975). This means that the trial court and this Court are required to resolve all doubts in connection therewith against the defendants. Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964). Where depositions and affidavits are filed, it is the function of the trial court to gather all of the facts presented to determine whether a genuine issue of fact exists with reference to whether defendants failed to exercise that degree of care which an ordinarily prudent person would have exercised in the fulfillment of the duty to protect plaintiff from injury. On appeal, we will review the testimony in the most favorable aspect it will bear in support of plaintiff’s claim of the right to present the merits to the jury. Coca v. Arceo, 71 N.M. 186, 376 P.2d 970 (1962).
Under the circumstances of this case, the continued procedural delay, the late taking of medical depositions, the decision on summary judgment immediately after medical depositions were taken with a jury being present, and the large expense involved, mean to me that “we cannot countenance procedures in which the rights of parties are prejudiced or their substantive rights invaded, or in which trials are had on the issue of whether trials should be had.” Summers v. American Reliable Insurance Company, 85 N.M. 224, 226, 511 P.2d 550, 552 (1973).
My review of this case indicates to me that the primary reason for the summary judgment was the application of the “strict locality” rule, to deprive plaintiff of the right to use medical depositions taken in the State of Washington.
To grant summary judgment after the claimed act of malpractice, without consideration of plaintiff’s testimony and medical evidence based thereon, does not hasten the administration of justice.
B. The “strict locality rule” was not involved.
The only claim of malpractice in this case arises out of the withdrawal of an intestinal tube through plaintiff’s nose by Dr. Burress, the manner of which resulted in the collapsing of a mercury-weighted bag. The manner of withdrawal was a mechanical, non-technical procedure. The withdrawal was not the unfortunate result of an operation, nor care involved in the treatment or diagnosis of a patient. Neither did withdrawal involve the care and skill of a specialist. We are not confronted with a standard of medical care. The “strict locality rule” was not involved.
We must distinguish the difference between the concept of a standard of medical practice and the concept of ordinary negligence. In medical malpractice actions, the standard of care is that degree of skill and learning which is ordinarily possessed and exercised by members of the medical profession in good standing. A physician or surgeon who has conformed to the standard of the profession in medical practice cannot be found negligent. In negligence actions, the standard of care is that degree of care which a reasonably prudent person would exercise under the same or similar circumstances.
We must not confuse these terms. Expert testimony is necessary to establish a standard of care and departure therefrom when the condition is such that knowledge about it is peculiarly within the knowledge of medical men. “However, where negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge, expert testimony is not required.” Mascarenas v. Gonzales, 83 N.M. 749, 751, 497 P.2d 751, 753 (Ct.App. 1972). Cited as authority is Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944). In that case, the court held that expert testimony was not required when the asserted negligence lay within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. Pry v. Jones, 253 Ark. 534, 487 S.W.2d 606 (1972). For additional samples, see authorities cited in Lanier, supra; Annot., 141 A.L.R. 5 at 12 (1942), supplemented in Annot., 81 A.L.R.2d 597 at 608 (1962), and Later Case Service (1968 and 1976).
Expert testimóny is not required in medical malpractice if the jury is capable of appreciating and evaluating the significance of the events that occurred. These events include those which are of a mechanical, non-technical nature which a layman might well comprehend and understand. A jury does not need guidance and enlightenment. The concept of ordinary negligence comes into play. This rule is applicable to a mechanical, non-technical procedure such as the withdrawal of an intestinal tube through a patient’s nose. Under this event, a standard of care in medical practice disappears.
The strict locality rule was not applicable because a standard of medical practice was not present.
C. If a standard of care was involved, a national standard controlled.
Dr. Albert G. Simms, II, an Albuquerque physician and surgeon, stated that the use of gastrointestinal tubes is standardized nationwide. He testified as follows:
The training of surgical residents in the United States in the last 30 years has pretty well standardized things like insertions of tubes and the use of tubes and so on, although any one hospital or any one physician might have certain little gimmicks that he uses with success. But, by and large, the use of a mercury-weighted long tube has been commonplace in the United States since the introduction of the Miller-Abbott Tube in about 1934.
Doctors Ormsby and Goff of Seattle, Washington, declared that the standard of care in Albuquerque is the same standard of care in Seattle. The testimony of doctors from Seattle, Washington, is competent testimony on the procedures used by Dr. Burress in Albuquerque.
Los Alamos Medical Center v. Coe, 58 N.M. 686, 275 P.2d 175 (1954) preceded Cervantes v. Forbis, supra. In Coe, the Supreme Court held that a Los Angeles surgeon was allowed to testify that defendant’s patient in New Mexico was addicted to a drug. “Thus, it might be successfully argued from Coe that, in New Mexico, the question of a physician’s negligence in common medical matters may be determined by testimony of doctors from throughout the country who are knowledgeable in the particular field.” Roehl, The Law of Medical Malpractice in New Mexico, 3 N.M.L.Rev. 294 at 298 (1973). I agree.
In 1964, the strict locality rule was adopted in New Mexico. Cervantes v. Forbis, supra. In 1973, this Court reluctantly declined to modernize the rule. We did suggest that the Supreme Court review Cervantes in the light of U.J.I. 8.1. Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct.App. 1973). This instruction was approved in Williams v. Vandenhoven, 82 N.M. 352, 482 P.2d 55 (1971). All that is necessary to adopt a national standard is to eliminate the words “in the community” from the rule stated in Cervantes.
It should be noted under U.J.I. 8.2 that the duty of a specialist in medical practice is not limited to any locality.
I believe that U.J.I. 8.1 and 8.2, approved by the Supreme Court, modified the strict locality rule in Cervantes.
U.J.I. 8.1 provides that “due consideration” should be given “to the locality involved.” “The ‘locality rule’ has no present-day vitality except that it may be considered as one of the elements to determine the degree of care and skill which is to be expected of the average practitioner of the class to which he belongs. ... In other words, local practice within geographic proximity is one, but not the only factor to be considered.” Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 978, 31 A.L.R.3d 1100 (1967); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166 (1973); Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968).
There appears to be a vast conglomeration of casqs on the modernization of the “strict locality rule”. Malpractice Testimony: Competency of physician or surgeon from one locality to testify, in malpractice cases, as to standard of care required of defendant practicing in another locality, 37 A.L.R.3d 420 (1971); King: In Search of a Standard of Care for the Medical Profession: The “Accepted Practice” Formula, 28 Vanderbilt L.Rev. 1213 (1975); Edwards v. United States, 519 F.2d 1137 (5th Cir. 1975), dissenting opinion.
A review of the history of the “strict locality rule” and the reasons for modernization have led to the adoption of a nationwide standard of care. Shilkret v. Annapolis Emergency Hospital Ass’n, 276 Md. 187, 349 A.2d 245 (1975); Blair v. Eblen, 461 S.W.2d 370 (Ky. 1970); Pederson v. Dumouchel, supra. In Shilkret, supra, Judge Levine stated the rule as follows:
We align ourselves with the Kentucky court and hold that a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account. [349 A.2d at 253].
With regard to the rule applicable to hospitals, the following was adopted:
We hold, therefore, that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances. As in cases brought against physicians, advances in the profession, availability of special facilities and specialists, together with all other relevant considerations, are to be taken into account. [349 A.2d at 254],
This trend in the modernization of the “strict locality rule” has reached its summit. With the adoption of this rule, we will avoid the “conspiracy of silence.” In Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), the Court said:
It is quite evident that if the members of the medical profession, the legal profession, or any similar occupation, can prevent a malpractice case from even coming to trial simply by agreeing not to testify against one another, very few such cases will be heard in the future. Such a “conspiracy of silence,” as it is usually called, would allow the most grossly negligent practitioner to avoid even the simple duty of making his own explanation, under oath, of how the plaintiff happened to be injured. With the issues now before us by no means free from doubt, we are wholly unwilling to sanction a procedure fraught with such serious possibilities of injustice to future litigants. [449 S.W.2d at 951].
In Faulkner v. Pezeshki, 44 Ohio App.2d 186, 337 N.E.2d 158, 164 (1975), the Court said:
Locating an expert to testify for the plaintiff in a malpractice action is known to be a very difficult task, mainly because in most cases, one doctor is reluctant and unwilling to testify against another doctor. Although doctors may complain privately to each other about the incompetence of other doctors, they are extremely reluctant to air the matter publicly. [337 N.E.2d at 164].
Where compelling reasons exist in medical malpractice actions, the Supreme Court will accept jurisdiction to establish a standard of care required of physicians and surgeons. Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972).
D. There are genuine issues of material fact.
(1) The proximate cause of plaintiff’s heart attack.
The trial court also granted summary judgment because plaintiff failed to prove any causal relationship between the withdrawal of the tube, the collapse of the mercury-weighted bag, and the resulting heart attack.
Defendants presented evidence by Dr. Burress and local physicians that no causal relationship existed.
Plaintiff presented the following evidence.
Plaintiff was 61 years of age at the time of the event in Presbyterian Hospital. On the insertion of the tube, Dr. Burress estimated he put four or five cc’s of mercury in the bag, but he did not measure the amount. On the removal of the intestinal tube, Dr. Burress pulled the tube fast, jerked it three times, vigorously or forcefully or heavily pulled on the tube as though it had been stuck, and then yanked it out. The amount of mercury put in the bag may have contributed to this problem. After the collapse of the mercury-weighted bag and spillage of mercury, plaintiff was taken to the x-ray room, then returned to his own room where he was put on a tilt table with his head down lower than his feet. Dr. Burress asked the physiotherapy department to assist in postural drainage of the mercury. Physiotherapy employees pounded on plaintiff’s back many times for several hours to help remove the mercury. Plaintiff’s head hit the foot of the bed. He had chest pain. The next morning plaintiff suffered a myocardial infraction, a coronary heart attack.
Dr. John W. Ormsby, 45 years of age, a licensed physician in the State of Washington, specialized in internal medicine, endocrinology, and metabolism. He had training in cardiology for three years commensurate with his program in internal medicine. He had used an intestinal tube in his practice, absent the mercury-weighted tube. He examined plaintiff six times during the years 1969, 1970 and 1972. He had performed electrocardiograms and considered plaintiff to be within normal limits for his age. He reviewed plaintiff’s medical records of the incident that occurred on August 30, 1971, had conversations with plaintiff and others and had correspondence with physicians in Albuquerque. Based upon these and additional facts, and with a medical explanation, Dr. Ormsby concluded that there was a causal relationship between the withdrawal of the tube, the collapse of the mercury bag, the procedure used to extract the mercury and plaintiff’s heart attack.
Dr. C. Gordon Hale, who specializes in internal medicine with a subspecialty in cardiology, testified that a causal relationship existed.
There was a genuine issue of material fact on the proximate cause of plaintiff’s heart attack.
(2) The Negligence of Dr. Burress.
Dr. Burress testified that care was exercised during the withdrawal of the tube, and the procedure used to extract the mercury. Plaintiff’s evidence is to the contrary. A genuine issue of material fact exists on the negligence of Dr. Burress.
(3) The doctrine of res ipsa loquitur is applicable.
The trial court also granted summary judgment because the doctrine of res ipsa loquitur was not applicable.
“New Mexico decisions discussing res ipsa loquitur in malpractice cases have not applied the doctrine. These decisions have not held the doctrine could not be applied in an appropriate case.” Smith v. Klenbanoff, 84 N.M. 50, 55, 499 P.2d 368, 373 (Ct.App. 1972).
Two essential elements are necessary to allow the use of the doctrine: (1) that the injury to plaintiff was proximately caused by the collapse of the mercury-weighted bag in the withdrawal of the intestinal tube, which was under the exclusive control and management of the defendant, and (2) that the event causing the injury to the plaintiff was of a kind which ordinarily does not occur in the absence of negligence, on the part of the doctor who was in control of the instrumentality. U.J.I. 12.14. Waterman v. Ciesielski, 87 N.M. 25, 528 P.2d 884 (1974).
Res ipsa loquitur is in a quagmire of judicial discussion in medical malpractice cases. Annot., 162 A.L.R. 1265 (1946), supplemented in Annot., 82 A.L.R.2d 1262 (1962) and Later Case Service (1968 and 1976); Walker, Parker, Williamson, The Application of Res Ipsa Loquitur in Texas Medical Professional Liability Actions, 12 Houston L.Rev. 1026 (1975); 70 C.J.S. Physicians and Surgeons § 62 at 991 (1951); 61 Am.Jur.2d Physicians, Surgeons, Etc., §§ 191-197 (1972); Bardessono v. Michels, 3 Cal.3d 780, 91 Cal.Rptr. 760, 478 P.2d 480 (1970), 45 A.L.R.3d 717 (1972).
Each case must be decided on its own facts. As heretofore pointed out, the negligence of Dr. Burress involves a mechanical, non-technical procedure in which expert testimony is not required.
Plaintiff’s complaint did not allege the doctrine of res ipsa loquitur. It alleged that “during the removal of said intestinal tube, Defendant, Dr. Burress . .removed said tube in a hasty, negligent, and unskilled manner, resulting in the rupture of a bag of mercury at the end of the tube in the nasal passage of Plaintiff”. These are general allegations of negligence and the doctrine of res ipsa loquitur is applicable, though not pleaded. Mares v. New Mexico Public Service Co., 42 N.M. 473, 82 P.2d 257 (1938).
“The doctrine of res ipsa loquitur is a rule of evidence peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence.” 65A C.J.S. Negligence § 220.4 (1966). “There must be some showing that the cause of the accident is directly or naturally the result of some act or condition with which the defendant is connected and which ordinarily does not happen if those who have control or management exercise proper care.” Renfro v. J. D. Coggins Company, 71 N.M. 310, 316, 378 P.2d 130, 135 (1963).
In the instant case, the evidence most favorable to plaintiff shows that (1) Dr. Burress had exclusive control and management of the withdrawal of the intestinal tube, and the injury to the plaintiff was proximately caused by the manner in which Dr. Burress withdrew the intestinal tube and caused the mercury-weighted bag to collapse; (2) at the time the bag collapsed, Dr. Burress said, “My God, this has never happened before.” The result of the act, the collapse of the tube, does not ordinarily happen if proper care is exercised.
With this evidence, the doctrine of res ipsa loquitur is applicable, and plaintiff is entitled to an inference of defendants’ negligence.
The introduction of evidence by plaintiff to prove specific acts of negligence does not deny its application. Plaintiff is entitled to rely on the doctrine. He should not be penalized by the loss of the inference because he has been willing to go forward and do the best he can to prove specific acts of negligence. Tuso v. Markey, 61 N.M. 77, 294 P.2d 1102 (1956); Harless v. Ewing, 81 N.M. 541, 469 P.2d 520 (Ct.App. 1970); Terry v. Dunlap, 84 N.M. 86, 499 P.2d 1008 (Ct.App. 1972) (Sutin, J., dissenting).
Other issues raised by plaintiff were not answered in the majority opinion. I decline to extend this dissent.
The summary judgment in favor of Dr. Burress and Presbyterian Hospital should be reversed.