Opinion
No. 9456.
December 24, 1965.
APPEAL FROM DISTRICT COURT, NINTH JUDICIAL DISTRICT, BONNEVILLE COUNTY, BOYD R. THOMAS, J.
Roberts Poole, Boise, for appellant.
Albaugh, Bloem, Smith Pike, Idaho Falls, Merrill Merrill, Pocatello, for respondents.
The policy of the law is toward liberality in the allowance of amendments and to regard them favorably in order that the real controversies between the parties may be presented, their rights determined and the cause decided on the merits. Petty v. Petty, 66 Idaho 717, 168 P.2d 818, 164 A.L.R. 520; Hill v. Bice, 65 Idaho 167, 139 P.2d 1010; Merritt v. Sims, 78 Idaho 292, 301 P.2d 1108; Grant v. Clark, 78 Idaho 412, 305 P.2d 752; Markstaller v. Markstaller, 80 Idaho 129, 326 P.2d 994; Brett v. Dooley, 80 Idaho 237, 327 P.2d 355.
The most important factor in determining whether leave of Court to amend shall be granted is whether any prejudice will result to the opposing party in granting such a motion. Budd Co. v. United States, D.C., 19 F.R.D. 346.
Generally leave to amend is freely granted at any stage of the case where justice so requires, and the adverse party will not be prejudiced thereby, especially where the amendment is directed to clarification of issues and dispatch of litigation. E.I. Dupont deNemours Co. v. United States Camio Corp., D.C., 19 F.R.D. 495.
The rule is to be liberally construed on the side of allowance of amendments, particularly where the opposing party is to be put to no disadvantage. Green v. Walsh, D.C., 21 F.R.D. 15.
A change of legal theory of the action cannot be accepted as a test of the propriety of a proposed amendment. Bowles v. Tanker Gas, D.C., 5 F.R.D. 230; Green v. Walsh, D.C., 21 F.R.D. 15; Heay v. Phillips, 14 Alaska 132, 201 F.2d 220; International Ladies Garment Workers Union v. Donnelly Gas Co., 8 Cir., 121 F.2d 561.
If the facts alleged show substantially the same wrong, with respect to the same transaction, or if it is the same matter more fully or differently said, or if the gist of the action or the subject of the controversy remains the same, the amendment should be permitted. Green v. Walsh, supra, citing: Matz v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745; Porter v. Theo J. Ely Mfg. Co., D.C., 5 F.R.D. 317.
Nor should a technical rule be applied in stating whether the cause of action in the original and amended pleading is identical, since in the strict sense, almost any amendment may be said to change the original cause of action. Porter v. Theo J. Ely Mfg. Co., supra.
The specified conduct of the Defendant on which the Plaintiff tries to enforce his claim is to be examined rather than the theory of law on which the action is brought. Moore Fed.Practice, Vol. 3, Sec. 15.15, pp. 851-853; White v. Holland Furnace Co., D.C., 31 F. Supp. 32.
Rule 15(c), I.R.C.P. provides: "Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading."
Appellant may amend his complaint to state a new cause of action arising out of the same transaction. Kuhn v. Pacific Mutual Life Ins. Co., D.C., 37 F. Supp. 102.
Amendments did not state a new cause of action barred by the statute of limitations for filing accident claims under contracts of carriage, where they only define with greater particularity the alleged negligence of the defendant and claim additional damages. Borup v. National Airlines, Inc., D.C., 117 F. Supp. 475.
An amendment can relate back to the original complaint where the claim set forth in the amended complaint arose out of the same acts alleged in the original pleading, even though plaintiff sought recovery on different legal theory than that upon which it had originally proceeded. C. Corkin Sons, Inc., v. Tide Water Assoc. Oil Co., D.C., 20 F.R.D. 402; Barron Holtzoff Fed.Practice Procedure, Vol. 1, Sec. 448, p. 903.
The doctrine of res ipsa loquitur is applicable in malpractice cases where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; Yborra v. Spangard (1944) 25 Cal.2d 486, 154 P.2d 687; Covero v. Franklin General Benevolent Soc. (1950) 36 Cal.2d 301, 223 P.2d 471; Armstrong v. Wallace, 8 Cal.2d 429, 47 P.2d 740; Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695; Woronka v. Sewall, 320 Mass. 362, 69 N.E.2d 796; Moore v. Ivey, Tex.Civ.App., 264 S.W. 283; Shoemaker v. Mountain States Telephone Telegraph Co., D.C., 17 F. Supp. 591.
There is a legal duty on the part of a physician to inform his patient of the risks incident to surgery. Salgo v. Leland Starford, Jr., University Board of Trustees, (1957) 154 Cal.App.2d 560, 317 P.2d 170.
A physician violates his duty to his patient and subjects himself to liability if he withholds any facts, which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment. Natanson v. Kline, (1960) 187 Kan. 186, 354 P.2d 670; Mitchell v. Robinson, Mo. (1960) 334 S.W.2d 11; Wall v. Brim, 5 Cir., 138 F.2d 478; Hunter v. Burroughs, 123 Va. 113, 96 S.E. 360.
A physician or surgeon is required to exercise the same degree of care, skill and diligence exercised by physicians and surgeons in good standing engaged in the same general line of practice in the same or similar locality. 70 C.J.S. Physicians Surgeons, § 43; Davis v. Potter, 51 Idaho 81, 2 P.2d 318; Flock v. J.C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707.
The doctrine of res ipsa loquitur is not available to the plaintiff if the causative factors producing the alleged injury are not ordinarily within the knowledge or experience of laymen composing the jury. This rule has particular application to malpractice cases where the causative factors must be established by expert medical testimony. Hale v. Heninger, 87 Idaho 414, 393 P.2d 718; Walker v. Distler, 78 Idaho 38, 296 P.2d 452.
Before the plaintiff can recover, he must show by affirmative evidence — first, that defendant was unskillful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in plaintiff's proof, he has presented no case for the consideration of the jury. Hale v. Heninger, 87 Idaho 414, 393 P.2d 718; Hall v. Bannock County, 81 Idaho 256, 340 P.2d 855; Swanson v. Wasson, 45 Idaho 309, 262 P. 147; Ruble v. Busby, 27 Idaho 486, 149 P. 722; 13 A.L.R.2d 21, and cases annotated therein.
When the causes of the injuries involved in a malpractice action are determinable only in the light of scientific knowledge, expert testimony is necessary to support the conclusion as to causation. Walker v. Distler, 78 Idaho 38, 296 P.2d 452; Moore v. Tremelling, C.A.9th Idaho, 78 F.2d 821; O'Connor v. Boulder Colo. Sanitarium Ass'n, 107 Colo. 290, 111 P.2d 633, 13 A.L.R.2d 21, at Page 31, and cases annotated therein.
A doctor's liability for malpractice turns upon whether he has exercised that degree of skill and care ordinarily exercised by competent doctors of the same specialty, in the same or similar locality. Hale v. Heninger, 87 Idaho 414, 393 P.2d 718; Moore v. Tremelling, 9 Cir., 78 F.2d 821; Willis v. Western Hospital Association, 67 Idaho 435, 182 P.2d 950; Flock v. J.C. Palumbo Fruit Co., 63 Idaho 220, 118 P.2d 707; Davis v. Potter, 51 Idaho 81, 2 P.2d 318; Swanson v. Wasson, 45 Idaho 309, 262 P. 147.
Plaintiff must prove that the results would have been better if different or other treatment was given. Anderson v. Nixon, 104 Utah 262, 139 P.2d 216; Barns v. Bovenmyer, 255 Iowa 220, 122 N.W.2d 312; Smith v. Beard, 56 Wyo. 375, 110 P.2d 260; Moore v. Tremelling, 9 Cir., 78 F.2d 821; Cyr v. Giesen, 150 Me. 248, 108 A.2d 316; Bowles v. Bourbon, 148 Tex. 1, 219 S.W.2d 779; Silvers v. Wesson, 122 Cal.App.2d 902, 266 P.2d 169; Michael v. Roberts, 91 N.H. 499, 23 A.2d 361; Modrzynsky v. Lust, Ohio App., 88 N.E.2d 76; McKeever v. Phoenix Jewish Community Center, 92 Ariz. 121, 374 P.2d 875, 1 A.L.R.3d 957.
Plaintiff must show that failures of defendant were proximate of the damages, which said proof must rest upon medical evidence. Hale v. Heninger, 87 Idaho 414, 393 P.2d 718; McKeever v. Phoenix Jewish Community Center, 92 Ariz. 121, 374 P.2d 875, 1 A.L.R.3d 957; Moore v. Tremelling, 9 Cir., 78 F.2d 821; Anderson v. Nixon, 104 Utah 262, 139 P.2d 216; Swanson v. Wasson, 45 Idaho 309, 262 P. 147; Willis v. Western Hospital Association, 67 Idaho 435, 182 P.2d 950; Johnson v. Taylor, 169 Neb. 280, 99 N.W.2d 254.
Development of an infection does not raise an inference of negligence. Flanagan v. Smith, 197 Iowa 273, 197 N.W. 49; Stacy v. Williams, 253 Ky. 353, 69 S.W.2d 697; Meador v. Arnold, 264 Ky. 378, 94 S.W.2d 626; Steinmetz v. Humphrey, 289 Ky. 709, 160 S.W.2d 6; King v. Belmore, 248 Mass. 108, 142 N.E. 911; Boston v. Fountain, 267 Mass. 196, 166 N.E. 736; Tallon v. Spellman, 302 Mass. 179, 19 N.E.2d 33; Grubbs v. McShane, 144 Fla. 585, 198 So. 208; Kootsey v. Lewis, Tex.Civ.App., 126 S.W.2d 512; Moore v. Smith, 215 Ala. 592, 111 So. 918; Woodlawn Infirmary v. Byers, 216 Ala. 210, 112 So. 831; Thomson v. Virginia Mason Hospital, 152 Wn. 297, 277 P. 691; Pink v. Slater, 131 Cal.App.2d 816, 281 P.2d 272; Thomson v. Methodist Hospital, 211 Tenn. 650, 367 S.W.2d 134, 162 A.L.R. 1284; 82 A.L.R.2d 1299.
Res Ipsa Loquitur doctrine is not applicable. Hale v. Heninger, 87 Idaho 414, 393 P.2d 718; Silverson v. Weber, 22 Cal.Rptr. 337, 372 P.2d 97; Gerheart v. Fresno Medical Group, 217 Cal.App.2d 353, 31 Cal.Rptr. 633; Davis v. Memorial Hospital, 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561; Lagerpusch v. Lindley, 253 Iowa 1033, 115 N.W.2d 207; McKeever v. Phoenix Jewish Community Center, 92 Ariz. 121, 374 P.2d 875, 1 A.L.R.3d 957; Joseph v. W.H. Groves L.D.S. Hospital, 10 Utah 2d 94, 348 P.2d 935; Demchuk v. Bralow, 404 Pa. 100, 170 A.2d 868; Wolfsmith v. Marsh, 51 Cal.2d 832, 337 P.2d 70, 82 A.L.R.2d 1262.
It is not error to refuse an amendment where the facts under the amendment were admissible under the original pleadings. Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Stephens v. Reed, 3 Cir., 121 F.2d 696; Cuomo v. Cities Service Oil Co., D.C., 21 F.R.D. 129; Messelt v. Security Storage, D.C., 11 F.R.D. 342; Wilson v. Lamberton, 3 Cir., 102 F.2d 506; Wilson v. Byrd, 79 Ariz. 302, 288 P.2d 1079; United Exhibitors Inc. v. Twentieth Century Fox, D.C., 18 F.R.D. 469.
Failure to advise patient of possibility of infection is not malpractice. Yeates v. Harms, 193 Kan. 320, 393 P.2d 982; Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627, 89 A.L.R.2d 1330; Natanson v. Kline, 187 Kan. 186, 350 P.2d 1093; Williams v. Menehan, 191 Kan. 6, 379 P.2d 292; Govin v. Hunter, Wyo., 374 P.2d 421.
In 1956 Tad Schofield, plaintiff-appellant herein, sustained an injury to his left eye which caused his vision to become cloudy. He was referred to Dr. Wallber, a defendant-respondent herein, a physician and surgeon specializing in ophthalmology. Dr. Wallber, after examining the eye and having X-rays taken, determined that a traumatic cataract was forming on Schofield's left eye. Dr. Wallber advised that the cataract be allowed to mature to permit corrective surgery.
Schofield visited Dr. Wallber on January 8, 1959, in regard to the proposed operation and was informed he would be in the hospital for one week and would be unable to do heavy work for six weeks thereafter. He also was told that the eye appeared firm and in good condition and a good chance existed for successful surgery.
Two weeks later Schofield again visited Dr. Wallber, who made a physical examination of Schofield. That afternoon he entered Idaho Falls Latter Day Saints Hospital. After blood samples and a specimen were taken, Schofield received medication to induce sleep. The record does not reveal whether preoperative medication to his eye was administered that night.
The operation was performed the following morning. A few days after the operation, clouding of the eye was noted on and around the pupil, indicating an infection. This infection caused a shrinking of the eyeball, necessitating its removal in January 1960.
Schofield instituted this action in October 1961, alleging negligence by the hospital and Dr. Wallber. He asked both general and special damages. At the close of Schofield's evidence, the respondents' motion for involuntary dismissal was granted and judgment was entered against appellant. Schofield appeals from that judgment.
Error is assigned to the trial court's refusal to permit appellant to add a second count to his second amended complaint. The "second count" alleged that Dr. Wallber did not fully advise appellant of the inherent risks of the operation.
During the course of the trial, appellant introduced evidence, without objection, of Dr. Wallber's conversations with appellant and his wife regarding details of the forthcoming operation. Therefore, to that extent, Dr. Wallber disclosed to appellant the risks of the operation; such evidence was material to that issue. Regardless of the sufficiency of the evidence introduced by the appellant, he cannot now complain that he was not permitted to raise the issue. I.R.C.P. 15(b) in part provides:
"When issues not raised by the pleading are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."
Morford v. Brown, 85 Idaho 480, 381 P.2d 45 (1963).
Appellant also assigns as error the trial court's granting respondents' motion to strike paragraph IX from appellant's second amended complaint.
Respondents argue that appellant has failed to cite authorities or to make argument in support thereof. Rule 41 of the Appellate Rules of the Supreme Court requires the parties to cite authorities and make argument in support of their contentions in the briefs. This court will not consider assignments of error if the party fails to include either argument or citation of authority in the brief. Weaver v. Sibbett, 87 Idaho 387, 393 P.2d 601 (1964).
Error is assigned to the trial court's granting respondents' motion to strike paragraph X from appellant's second amended complaint. That paragraph reads as follows:
"That the plaintiff Tad Schofield, from the time he entered the defendant hospital on January 19, 1959 until his release therefrom on or about the 1st day of February, 1959, was under the exclusive care, custody, control and management of the defendants."
Respondents contended by their motion to strike that appellant was attempting to invoke the doctrine of res ipsa loquitur and that such theory should be disallowed as a matter of law.
The applicability of the doctrine of res ipsa loquitur to malpractice actions has been discussed in numerous opinions.
In Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695, 698 (1939), the court stated:
"It is true that in a restricted class of cases the courts have applied the doctrine of res ipsa loquitur in malpractice cases. But it has only been invoked where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. For example, it has been applied where a sponge was left in the body of the patient after closing an operative incision [Cases cited]; where the patient was burned by the application of hot compresses or heating apparatus [Cases cited]; where the patient was burned through the operation of an X-ray machine [Cases cited]; and where the patient sustained an infection through the use of an unsterilized hypodermic needle. [Case cited] In each one of these situations the rule was applied because common knowledge and experience teaches that the result was one which would not have occurred if due care had been exercised."
See also Cavero v. Franklin General Benev. Soc., 36 Cal.2d 301, 223 P.2d 471 (1950).
The California case of Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 339, 372 P.2d 97, 99 (1962), states:
"The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation. * * *
"To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undersirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible."
See also Hale v. Heninger, 87 Idaho 414, 393 P.2d 718 (1964).
In Walker v. Distler, 78 Idaho 38, 47, 296 P.2d 452, 457 (1956), it was said:
"Generally speaking, negligence in malpractice cases must be established by expert medical testimony. This is so because the causative factors are not ordinarily within the knowledge or experience of laymen composing the jury.
* * * * * *
"There are exceptions to the general rule which permit the plaintiff in a malpractice case to invoke the doctrine of res ipsa loquitur. Among these are cases in which the surgeon has left a foreign object, such as a sponge or surgical instrument, within the body of the patient. In these cases the negligence involved is said to be within the experience and knowledge of laymen."
See also Hale v. Heninger, supra; and Siverson v. Weber, supra.
While res ipsa loquitur may at times be applied to actions for malpractice, the doctrine must be limited to those cases where the layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. Where such facts are absent, expert medical evidence is required to prove negligence. See Cavero v. Franklin General Benev. Soc., supra. The record in this case does not warrant application of the doctrine of res ipsa loquitur.
Appellant also assigns as error the granting of respondents' motion for dismissal, under Rule 41(b), I.R.C.P. Under previous rules dealing with motions for nonsuit, this court has said:
"Rule 41(b). Involuntary dismissal — Effect thereof. — For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for lack of an indispensable party, operates as an adjudication upon the merits."
"On a motion by defendant for nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence, and all the facts which the evidence tends to prove." Miller v. Gooding Highway Dist., 55 Idaho 258, 262, 41 P.2d 625, 627 (1935).
See also Hill v. Bice, 65 Idaho 167, 139 P.2d 1010 (1943); and 2B Barron Holtzoff, Federal Practice and Procedure, § 919 (1961).
Appellant contends he provided sufficient competent evidence on each material allegation to constitute a prima facie case. Upon reviewing the record, we concur with the conclusion of the trial judge that there was insufficient evidence as a matter of law to establish negligence on the part of the respondents which would sustain a verdict by the jury in favor of appellant.
Error is assigned to refusal of the trial court to admit three exhibits into evidence "for all purposes." These exhibits were related to the measure of appellant's damages. Since appellant failed to prove negligence by the respondents, this question is of no moment on appeal.
We have reviewed appellant's other assignments of error. We find no reversible error therein.
The order and judgment of the trial court are affirmed.
Costs to respondents.
McFADDEN, TAYLOR, SMITH and KNUDSON, JJ., concur.