Toppino v. Herhahn , 100 N.M. 585 ( 1983 )

OPINION

HENDLEY, Judge.

Plaintiff filed suit against defendant for damages arising from plastic surgery to reconstruct her right breast. Damages were claimed under three theories: 1) medical malpractice; 2) breach of express or implied warranties; and 3) lack of informed consent. Plaintiff abandoned the theory of lack of informed consent. The trial court directed a verdict in favor of defendant on the negligence issue. The jury returned a $27,500 verdict for plaintiff on the warranties issue. Defendant appeals the jury verdict. Plaintiff appeals the directed verdict on the negligence issue.

Following a modified radical mastectomy, plaintiff underwent reconstructive surgery. Defendant is a board certified specialist in plastic and reconstructive surgery. He performed five operations on plaintiff in an attempt to achieve the objective of giving her a reconstructed breast which would be reasonably symmetrical to the natural breast when she was dressed.

The first operation resulted in an implant which was located higher and smaller in size than the natural breast. Defendant admitted that this was a poor result.

The second operation resulted in a lower and larger implant. This subpectoral implant had an appearance of being “smashed.” Defendant told plaintiff that he could improve on the result. They decided to use a different type prosthesis, a “teardrop,” which more closely resembles the shape of a natural breast.

In the third operation the prosthesis was placed subcutaneously. Both plaintiff and defendant were satisfied with the result. Shortly thereafter, plaintiff began to have problems with the reconstructed breast. Defendant diagnosed her problems as a “rapid capsular contracture,” a build up of scar tissue.

A fourth operation was undertaken to alleviate this problem. Defendant removed the prosthesis and cut through the scar tissue to relieve the compression it had caused. During reinsertion the prosthesis “ruptured spontaneously.” Defendant replaced the teardrop prosthesis with a round one from his stock. Plaintiff understood this to be temporary until defendant could get another teardrop prosthesis. Defendant testified that he intended it to be permanent if it did the job. This implant drifted, resulting in an undesired effect.

In the fifth surgery a teardrop prosthesis was implanted. While still in the operating room, plaintiff examined the breast and was very dissatisfied. The implant was located too low and too far to the side. It did not resemble a breast in size, shape, or consistency. Plaintiff expressed her dissatisfaction. She was told the room was needed for another surgery.

Prior to each surgical procedure plaintiff signed a Permission for Operation and Surgical Permit. The Permission for Operation contained the following language: “I am advised that though good results are expected, they cannot be and are not guaranteed, nor can there be any guarantee against untoward results.” Plaintiff testified that she read and understood the permission and the permit before signing.

The Appeal — Express Warranty

Defendant argues that the express warranty issue was improperly before the jury. He contends that: 1) in light of the surgical consent form, which he claims was conclusive evidence as to any express warranty, the extrinsic evidence considered by the trial court was incompetent; and 2) there was insufficient evidence of express warranty for a particular surgical result to go to the jury.

The first contention was not raised before the trial court. Defendant did not raise a defense to the warranty claim based on the conelusiveness of the consent form in his answer. He did not object to the extrinsic evidence when it was elicited from plaintiff at trial. The theory was not relied on in arguing the motions for a directed verdict. Matters not brought to the trial court's attention cannot be raised for the first time on appeal. Albuquerque Prod. Credit Ass’n v. Martinez, 91 N.M. 317, 573 P.2d 672 (1978).

Defendant’s second contention is based on the theory that his words “we’ll get this right” and “this will be right” were merely words of reassurance and did not form a basis of the bargain. Defendant also contends that plaintiff failed to show reliance on the warranty. He relies on Stang v. Hertz Corporation, 83 N.M. 217, 490 P.2d 475 (Ct.App.1971), rev'd in part on other grounds, 83 N.M. 730, 497 P.2d 732 (1972), for the proposition that the words did not form a basis of the bargain. In Stang, supra, after a contract for a rental car had been signed the agent for Hertz stated “you have got good tires.” The Court of Appeals found the statement to be outside the basis of the agreement and not sufficient evidence of express warranty to go to the jury.

In the present case, the statements arose in a context different from that in Stang, supra. Here, the statements were made after and before each of the several operations. There was evidence that these statements became part of the basis of the bargain. Plaintiff testified that as time went on she was beginning to lose faith in defendant but allowed him to continue based on his statements.

The trial court properly refused to direct a verdict on the issue of express warranty. Defendant’s argument that these statements must be closely scrutinized, relying on cases that say statements of opinion and reassurance by physicians do not constitute express warranties, is without merit. The jury could have properly found an express warranty existed.

The Appeal—Implied Warranty

Defendant argues that it was error to instruct on an implied warranty. We agree.

Generally, when entering into a professional services contract a physician impliedly warrants only that he possesses and will employ that degree of skill, care, and learning possessed and exercised by others in the profession. An express warranty of particular result would be required in order to find that more than the above was warranted. See State, Etc. v. Gathman-Matotan, Etc., 98 N.M. 790, 653 P.2d 166 (Ct.App.1982); Gault v. Sideman, 42 Ill.App.2d 96, 191 N.E.2d 436 (1963).

Plaintiff argues, however, that this case should not be controlled by those cases finding that there can be no implied warranties in cases involving professional services contracts. She contends that this is a question of first impression in New Mexico in that it involves an implied-in-fact warranty brought into effect by the course of conduct of the parties; i.e., that the context here is somehow different in that there was a series of operations and the statements were of a continuing nature, building in importance with time.

We disagree. By definition an implied contract is an agreement in which the parties by a course of conduct have shown an intention to be bound by the agreement. See NMSA 1978, UJI Civ. 8.3 (RepLPamph. 1980). This is what plaintiff tried to prove. However, we will not recognize a cause of action based on implied warranty for particular result in the professional services contract area. See Gathman-Matotan, supra.

The Cross-Appeal

Plaintiff argues that the trial court erred in directing a verdict for defendant on the negligence issue. At trial, the expert did not testify that defendant had been negligent. In fact, he testified that defendant’s actions were within the acceptable realm of their profession.

Generally, expert testimony of medical malpractice is required to make a prima facie case. See Gerety v. Demers, 92 N.M. 396, 589 P.2d 180 (1978). There is, however, a “common knowledge” exception to this expert witness rule. See Pharmaseal Laboratories, Inc. v. Goffe, 90 N.M. 753, 568 P.2d 589 (1977).

It is not mandatory in every case that negligence of the doctor be proved by expert testimony which shows a departure from reasonable standards of care. Negligence of a doctor in a procedure which is peculiarly within the knowledge of doctors, and in which a layman would be presumed to be uninformed, would demand medical testimony as to the standard of care. However, if negligence can be determined by resort to common knowledge ordinarily possessed by an average person, expert testimony as to standards of care is not essential. (Citations omitted.) Such evidence includes lay testimony regarding non-technical mechanical acts by the physician * * *.

Such is not the case here. The acts involved here are not non-technical mechanical acts by the physician. The questions of subpectoral v. subcutaneous placement, the shape and volume of the prosthesis, saline v. gel, the effect on the prosthesis caused by various muscle and skin elasticities is “peculiarly within the knowledge of doctors” and not “common knowledge ordinarily possessed by an average person.” The fact that a lay person can recognize an undesired result may be evidence of breach of warranty for a particular result, but it is not, in a case of this nature, evidence of medical malpractice.

Plaintiff also claims the trial court committed error by refusing to allow her to question the expert on his involvement in the New Mexico Physician’s Mutual Liability Company in order to show his statements on negligence were not conclusive because of his bias. The directed verdict was not error. Assuming, but not deciding that this evidence would have made his statements on negligence inconclusive, it does not follow that a directed verdict would be error. Plaintiff failed to produce expert testimony of medical malpractice. The common knowledge exception does not apply. Under these facts, without expert testimony of negligence, the directed verdict was correct.

Since the jury was instructed on an express or implied warranty theory, we cannot determine upon which warranty relief was granted. Accordingly, the judgment in favor of plaintiff is reversed. The cause is remanded for a new trial. The theory of implied warranty will be excluded, as will the negligence theory. Perfetti v. McGhan Medical, 662 P.2d 646, 22 SBB 435 (N.M.Ct.App.1983). Plaintiff is assessed costs. NMSA 1978, Civ.App.R. 27(a).

IT IS SO ORDERED.

NEAL, J., concurs. WALTERS, C.J., concurs in part, dissents in part.