L. B. STALLCUP, Appellant,
Paul J. COSCARART, Appellee.
Rehearing Denied June 1, 1955.
[79 Ariz. 44] Shimmel, Hill & Hill, Phoenix, for appellant.
Fennemore, Craig, Allen & Bledsoe, Phoenix, by Philip E. von Ammon, Phoenix, for appellee.
Paul Coscarart, hereinafter called plaintiff, brought suit against L. B. Stallcup, oral surgeon, hereinafter called defendant, to recover damages for alleged malpractice by the defendant upon the person of plaintiff. The alleged malpractice is based upon the postoperative care of plaintiff after the extraction of four wisdom teeth. The case was tried to a jury which returned a verdict in favor of plaintiff in the sum of $25,500. Judgment was rendered on the verdict and after the usual motions were overruled, this appeal was taken.
The plaintiff was placed under an anesthetic known as sodium pentathol and was operated upon at 10 o'clock in the morning of February 5, 1951. The operation was performed in about 18 minutes. Plaintiff was then conveyed to a retiring or recovery room where he remained until between 4:30 and 5 o'clock in the afternoon at which time he was removed to the home of his mother-in-law in Phoenix. From there, because of his apparent critical condition, his wife telephoned Doctor Leslie Smith who came at once, arriving between 6:30 and 7:00 p. m.
Doctor Smith examined the patient and found that he was running a temperature of about 104 degrees with acute pneumonia, had blood in the corners of his mouth, was coughing and had a rattle in his chest. His impression was that the patient was suffering from some infection in the lungs. It was Doctor Smith's opinion that plaintiff's condition was in no way related to his diabetes.
The plaintiff was immediately taken to Good Samaritan Hospital and his condition was diagnosed as aspiration pneumonia as the result of having inhaled blood. This diagnosis was corroborated by the fact that the patient during each of the following two days, expectorated old clots of blood.
On February 10 the plaintiff developed an abscess or cavity in the lungs which was filled with pus. This condition persisted after he left the hospital on February 17. He was sent to the home of his mother-in-law to rest in bed. After five or six weeks, he returned to his farm in Gilbert where he was bedriden until early July except for trips to the doctor.
In July some incubation tests of plaintiff's sputum revealed positive evidence of the development of tuberculosis and he was placed in St. Luke's Hospital on July 12, 1951. He remained there under constant treatment until the following October 15.
In April of 1952, he was permitted by Doctor Smith to do some light overseeing work but was still required to rest in bed [79 Ariz. 45] for a prescribed period during each day. In February of 1953 an x-ray examination indicated that the lung abscess was developing again, and the plaintiff was required to remain in bed all the time. The post-operative care given plaintiff while in defendant's office will be hereinafter given by detailing the pertinent portions of the testimony of the witnesses both for plaintiff and defendant.
There are eight assignments of error presented to us on this appeal. Assignment No. 1 charges that the court erred in denying defendant's motion made at the close of plaintiff's case and renewed by post-judgment motion for an order directing the jury to return a verdict for defendant for the reason that plaintiff adduced no evidence proving or tending to prove the standard of postoperative practice customarily exercised by oral surgeons in the community of Phoenix, or the degree of skill and care ordinarily and customarily exercised by such surgeons, and that plaintiff produced no evidence tending to prove a departure by defendant from any standard of practice or of care and skill to which defendant was required to adhere.
Assignments 2, 3, 4, 5, 6 and 7 were all directed at the giving, modifying and refusing instructions requested by plaintiff and defendant.
Assignment No. 8 is based upon the court's denial of defendant's alternative motion for a new trial upon the ground that the verdict was so excessive as to appear to have been given under the influence of passion and prejudice. This assignment was not argued in the brief and will therefore be considered as having been abandoned.
Assignment No. 1 goes to the sufficiency of the evidence to support the judgment. Under well-established rules where the sufficiency of the evidence to sustain the judgment is questioned we must, in considering whether the judgment entered was proper, resolve every conflict in the evidence and every inference which can reasonably be drawn therefrom in favor of plaintiff. In other words, we must view the evidence in a light most favorable to sustaining the verdict and if there is any substantial evidence from which reasonable men could have found ultimate facts to be such as will sustain the verdict, the judgment will be affirmed. Curlee v. Morris, 72 Ariz. 125, 231 P.2d 752.
Before entering upon a discussion of the evidence in this case we believe it would be profitable to refer to some of our previous decisions bearing upon the character of evidence necessary to support a judgment in this kind of an action. We said in Boyce v. Brown, 51 Ariz. 416, 77 P.2d 455, 457:
'* * * One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices,[79 Ariz. 46] and to apply that skill and learning, with ordinary and reasonable care, to cases which come to him for treatment. If he does not possess the requisite skill and learning, or if he does not apply it, he is guilty of malpractice. * * *' (Emphasis supplied.)
We also said in that case:
'* * * The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical
testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. * * *'
The court cited as authority for this Herzog, Medical Jurisprudence, Sec. 192; Butler v. Rule, 33 Ariz. 460, 265 P. 757, and 48 C.J. 1150; 70 C.J.S., Physicians and Surgeons, § 62.
It was said in the case of Lashley v. Koerber, M.D., 26 Cal.2d 83, 156 P.2d 441, 444, in quoting from Engelking v. Carlson, 1939, 13 Cal.2d 216, 220, 221, 88 P.2d 695, 697, that:
'* * * 'The law has never held a physician or surgeon liable for every untoward result which may occur in medical practice. It requires only that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the same locality and that he shall use ordinary care and diligence in applying that learning and skill to the treatment of the patients. (Citation). Whether he had done so in a ...