Goffe v. Pharmaseal Laboratories, Inc. , 90 N.M. 764 ( 1976 )

OPINION

HERNANDEZ, Judge.

Plaintiff appeals the granting of a summary judgment in favor of the defendants.

On August 26, 1971, plaintiff entered the defendant Presbyterian Hospital (Hospital) suffering from an intestinal obstruction. He was treated by defendant Dr. J. Hunt Burress. The treatment consisted of inserting a K-2R Kaslow intestinal tube, manufactured by defendant Pharmaseal Laboratories, Inc. (Laboratory), through his nose, and thence through the stomach into the intestine. To help in inserting the tube into the intestine, it was weighted with a small rubber balloon tied to the end of the tube and containing metallic mercury, also called quicksilver. The tube, balloon and quicksilver were purchased from the Hospital. Dr. Burress put the mercury into the balloon and tied it onto the end of the tube. On the morning of August 30, 1971, the intestinal obstruction having been removed, Dr. Burress started to withdraw the tube. While he was in the process of removing the tube, the balloon containing the mercury broke as the bag started to enter the nasal passage. As a consequence, the plaintiff inhaled some of the mercury into his lungs. Dr. Burress, with the help of some of the hospital staff, turned the plaintiff upside down and pounded him on the back to cause him to cough up the mercury. How much he inhaled is not known and how much stayed in his system is not known. There is nothing in the record to indicate that the mercury being in his system had any adverse effects. The tube and the balloon were disposed of and no one had the opportunity to examine them. On the day following these events the plaintiff suffered a myocardial infarction.

Plaintiff in his complaint alleged that Dr. Burress “did not exercise the degree of care or skill ordinarily exercised by others of his profession in similar treatment in that he removed said tube in a hasty, negligent, and unskilled manner, resulting in the rupture of a bag of mercury . . .” He further alleged that Dr. Burress directed others to pound him on the back to remove the mercury and this “pounding resulted in a coronary thrombosis with a subsequent myocardial infarction.” As to the Laboratory, the plaintiff alleged that the “tube was in a defective condition unreasonably dangerous to a user or patient in that the bag of mercury attached to the tube in the treatment is improperly designed and unsafe to persons undergoing treatment . .” Also, that the tube “was not of a merchantable quality nor was it fit for the purpose for which it was intended.” That the Laboratory had “breached an implied warranty of merchantibility and fitness . .” In regard to the Hospital, the plaintiff alleged that Dr. Burress was its agent or employee and that in doing the various things he did he was acting within the scope of his employment.

The plaintiff alleges four points of error. We will discuss together points 1, 3 and 4, which are as follows:

“POINT I

“SUMMARY JUDGMENT WAS IMPROPER-ISSUES OF FACT FOR THE JURY TO DECIDE EXISTED. ******

“POINT III

“EVEN IF DEFENDANTS ESTABLISHED THE LACK OF MATERIAL ISSUES, PLAINTIFF MET HIS BURDEN OF COMING FORTH WITH TANGIBLE EVIDENCE DEMONSTRATING THAT THERE EXISTS A TRIABLE ISSUE OF FACT, PRECLUDING SUMMARY JUDGMENT.

“POINT IV

“EVEN IF THE STRICT LOCALITY RULE HAS NOT BEEN SATISFIED, THE STANDARD TO BE USED IS A NATIONAL ONE, NOT LOCAL.”

Section 21-l-l(56)(c), N.M.S.A. 1953 (Repl. Vol. 4) provides in pertinent part that: “The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Our Supreme Court in Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972) adopted the following language from 3 Barron & Holtzoff, Federal Practice and Procedure, § 1234 at 124-126 (rev’d Wright 1958) as the rule to be applied in determining whether a motion for summary judgment should be granted or not:

“ . . the party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists. If there are such reasonable doubts, summary judgment should be denied. A substantial dispute as to a material fact forecloses summary judgment.”

The Supreme Court went on to say that once the moving party has made a prima facie showing that he is entitled to summary judgment, the burden shifts to the opposing party to show that there is a genuine factual issue. “By a prima facie showing is meant such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. . The inferences, which the party opposing the motion for summary judgment is entitled to have drawn from all the matters properly before and considered by the trial court, must be reasonable inferences.” [Emphasis ours.] The rules governing consideration of medical malpractice cases are set forth in Cervantes v. Forbis, 73 N.M. 445, 389 P.2d 210 (1964):

“Before a physician or surgeon can be held liable for malpractice in the treatment of his patient, he must have departed from the recognized standards of medical practice in the community, or must have neglected to do something required by those standards. [Citations omitted.] The fact that a poor result is achieved or that an unintended incident transpired, unless exceptional circumstances are present, does not establish liability without a showing that the result or incident occurred because of the physician’s failure to meet the standard either by his acts, neglect, or inattention. Such facts must generally be established by expert testimony. [Citations omitted.] Likewise, expert testimony is generally required to establish causal connection.”

Furthermore, the medical expert or experts must be qualified to express an opinion concerning the recognized standard of medical practice in the community and an opinion that the defendant departed from that standard or neglected to do something required by the standards. Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (Ct. App. 1973).

At the outset of our discussion, it is well to remind ourselves that a medical malpractice suit is a negligence action. The elements necessary to such a cause of action are:

“1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

“2. A failure on his part to conform to the standard required. These two elements go to make up what the courts usually have called negligence; but the term quite frequently is applied to the second alone. Thus it may be said that the defendant was negligent, but is not liable because he was under no duty to the plaintiff not to be.

“3. A reasonable [sic] close causal connection between the conduct and the resulting injury. This is what is commonly known as ‘legal cause,’ or ‘proximate cause.’

“4. Actual loss or damage resulting to the interests of another.” W. Prosser, Law of Torts, § 30, p. 143 (4th ed. 1971)

Speaking to the question of standard and a departure therefrom, Dr. Burress relies upon the deposition testimony and affidavit of Dr. A. Simms II, a surgeon residing and practicing in Albuquerque. Dr. Simms in his deposition testimony described the procedure for inserting and removing the tube. His affidavit recited in part:

“8. That Mr. Goffe was again seen by Dr. Simms on April 28, 1972, at which time he related the above episode of intestinal obstruction and told of the use of the mercury-weighted tube. He also told of the mishap in removing the tube.

“9. That Dr. Simms has reviewed the deposition of Dr. Burress in detail.

“10. That in Dr. Simms’ opinion, the application and handling of the mercury-weighted intestinal tube by Dr. Burress fell within the acceptable standards of surgical care in this community.”

The plaintiff for his part relies upon the affidavit and deposition of Dr. John W. Ormsby, an internist who graduated from Columbia Medical School and practices in the State of Washington. The pertinent parts of the doctor’s affidavit are the following:

“That the practice of medicine in the State of Washington is of the same standard of care as practiced by physicians in the City of Albuquerque, State of New Mexico.

“Mr. Goffe related to me a description of the incident and I have reviewed the medical records furnished to me by Presbyterian Hospital; if the attending physician vigorously pulled against the obstruction to such a degree as to cause the balloon to rupture, it is my opinion that such action was not acceptable medical practice.

“It is my further opinion that if the attending physician did not vigorously pull against the obstruction to such a decree [sic] as to cause the balloon to rupture, then the naso-gastric tube would have been defective.”

The record reveals that Dr. Ormsby at his deposition was asked the following questions and gave the following answers among others:

“Q. Can you say as a matter of medical probability [that] the breakage and spillage of the mercury was caused by any of the acts of Doctor Burress?

******

“A. No, I can’t put a term ‘probability’ on that. I really don’t know. ******

“Q. Can you tell me specifically what, if anything, Doctor Burress did wrong?

“A. No, sir, I can’t tell you anything specifically that I know he did wrong.

“Q. As far as you know, he did nothing wrong and everything met the standard of care with which you are familiar?

“A. Yes, as far as I know, he did nothing wrong.”

Dr. Ormsby, when asked whether it was the vigorous pulling by Dr. Burress or a defect in the tube which caused it to break, answered:

“A. No. I can’t say because I really don’t know, and I am not even sure I would know if I had been there.

******

“Q. Well, can you really even tell us, as a matter of medical probability, that it was even defective? ******

“A. No, I have no knowledge that it was defective.”

The purpose of a summary judgment proceeding is to expedite litigation by determining whether a party possesses competent evidence to support his pleadings so as to raise genuine issues of material fact and if not to dispose of the matters at that state of the proceeding. Agnew v. Libby, 53 N.M. 56, 201 P.2d 775 (1949). Dr. Ormsby’s affidavit and deposition testimony is all that the record contains of plaintiff’s evidence as to standard and failure to meet that standard. The affidavit of plaintiff’s wife and his own deposition testimony and answers to interrogatories cannot be considered because they are not competent to testify as medical experts as to either of these matters. As was pointed out in Cervantes, supra, proof of malpractice requires evidence as to the recognized standard in the community and a showing that the doctor departed from that standard due to the lack of the requisite knowledge or lack of the requisite skill or failure to exercise the requisite care. However, because of the technical and specialized subject matter, expert medical testimony is usually required to establish both of these evidentiary steps. Plaintiff does not contend that this is a situation where laymen are competent to testify.

Assuming, without deciding, that the standard in the State of Washington is the same as in the Albuquerque community; and further assuming, without deciding, that Dr. Ormsby possessed the requisite medical expertise to give an opinion on this matter; his statements are of no help to the plaintiff.

Dr. Ormsby’s affidavit and deposition testimony contains nothing as to the standard; and as to the departure from that standard the most that can be said about the testimony is that it presents an equal choice of two mere possibilities. Our Supreme Court in Stambaugh v. Hayes, 44 N.M. 443, 103 P.2d 640 (1940) quoted the following with approval from P. F. Collier and Son Co. v. Hartfeil, 72 F.2d 625 (8th Cir. 1934): “Where evidence is equally consistent with two hypotheses, it tends to prove neither.” That is to say the mere choice of possibilities does not constitute competent evidence. “Competent evidence means that which the very nature of the things to be proved requires as the fit and appropriate proof in the particular case.” Chiordi v. Jernigan, 46 N.M. 396, 129 P.2d 640 (1942). The plaintiff having failed to show that there were genuine material issues of fact as to two of the essential elements of his cause of action against Dr. Burress and the Hospital, the trial court properly granted the motion for summary judgment as to them. Granting summary judgment as to Dr. Burress requires granting it also as to the Hospital because plaintiff’s cause of action against the Hospital is premised on Dr. Burress being either its agent or its employee. Smith v. Klebanoff, 84 N.M. 50, 499 P.2d 368 (Ct.App. 1972); cert. denied, 84 N.M. 37, 499 P.2d 355 (1972).

The Laboratory failed to make an affirmative showing that there were no genuine issues of material fact as to it. Consequently, the burden did not shift to the plaintiff to show otherwise. Although parts of Dr. Ormsby’s and Dr. Simm’s deposition testimony are helpful to the Laboratory, these statements are not enough to make the affirmative showing necessary to shift the burden to plaintiff. Dr. Ormsby stated that he did not know whether the tube and bag were defective. Dr. Simms, speaking about these bags, said “occasionally, they will break. There is no way to keep from it.” The trial court erred in granting summary judgment as to the Laboratory. Kelly v. Board of Trustees of Hillcrest General Hospital, Inc., 87 N.M. 112, 529 P.2d 1233 (Ct.App. 1974); cert. denied, 87 N.M. 111, 529 P.2d 1232 (1974).

Plaintiff’s second point is that “summary judgment was improper since the doctrine of res ipsa loquitur defeats the motion for summary judgment.” He argues that “the only inference to be drawn is that the accident would not have occurred but for the negligence of the attending doctor or the defectiveness of the tube.” As was stated in Renfro v. J. D. Coggins Company, 71 N.M. 310, 378 P.2d 130 (1963), in order to make the doctrine of res ipsa loquitur applicable, two elements must be present:

“(1) that the accident be of the kind which ordinarily does not occur in the absence of someone’s negligence; (2) that it must be caused by an agency or instrumentality within the exclusive control and management of defendant.”

And as the Supreme Court also said in this case, more than the happening of an accident is required to set the doctrine in operation.

First as to Dr. Burress and the Hospital, we believe that the plaintiff failed to make a prima facie showing as to the first element, negligence. The only evidence that plaintiff presented which would go to this element was the deposition testimony and affidavit of Dr. Ormsby. We have previously discussed the shortcomings of that evidence as to the requisite medical standard and failure to observe the standard; it is equally deficient as to this first element. Dr. Ormsby did not say that this was the kind of incident which ordinarily does not occur in the absence of someone’s negligence. Dr. Simms in his deposition testimony had this to say after discussing the procedures used:

“A. Oh, no. You are undoubtedly referring to occasional accidents when you remove a tube, where the bag will break and suddenly dump the mercury wherever it’s at.

“Q. Well, is that a good thing to do that in the throat, so it gets into the throat?

“A. Oh, no, it’s not, but it’s very difficult to avoid. Impossible at times.

“Q. Why would you say that?

“A. Because I have removed hundreds of them and, occasionally, they will break. There’s no way to keep from it.”

The plaintiff failed to meet the burden of establishing that there was a question of material fact as to the first element of the doctrine. The doctrine is not applicable to the Laboratory because the instrumentality was in the exclusive control and management of Dr. Burress. The trial court properly ruled that the doctrine of res ipsa loquitur was not applicable.

The summary judgment is affirmed as to Dr. Burress and the Hospital. It is reversed as to the Laboratory. We would point out to the trial court that the counterclaim of the Hospital against the plaintiff remains unresolved, as does the cross claim of the Laboratory against the Hospital and Dr. Burress.

IT IS SO ORDERED.

LOPEZ, J., concurs. SUTIN, J., concurs in part and dissents in part.