Williams Ex Rel. Williams v. Vandenhoven

482 P.2d 55, 82 N.M. 352
CourtNew Mexico Supreme Court
DecidedMarch 8, 1971
Docket9097
StatusPublished
Cited by23 cases

This text of 482 P.2d 55 (Williams Ex Rel. Williams v. Vandenhoven) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams Ex Rel. Williams v. Vandenhoven, 482 P.2d 55, 82 N.M. 352 (N.M. 1971).

Opinion

OPINION ’

TACKETT, Justice.

This action was commenced in the District Court of San Juan County, New Mexico, to recover damages arising out of alleged medical malpractice. Trial was to a jury, which returned a verdict in favor of defendant. Plaintiffs appeal.

In October 196S, plaintiffs filed a complaint against defendant, a practicing physician in Farmington, New Mexico, alleging malpractice in treating the minor plaintiff for a fracture of his right forearm in October 1962, when the boy was seven years of age.

Plaintiffs allege several grounds of negligence on the part of defendant and further allege that, as a proximate result of one or more of the alleged acts of negligence, the boy’s arm became afflicted with a loss of circulation and gas gangrene, necessitating amputation of the right arm below the elbow. The fracture involved both the radius and the ulna of the right forearm. There was a small laceration adjacent to the fracture site on the underside of the right forearm. The boy was taken to the hospital, where he came under the care of defendant.

After examination and x-raying, defendant performed a closed reduction of the fracture and the alignment of the bones was good. A full arm circular plaster cast was applied by defendant, which extended down to the lower part of the hand. During the short period of hospitalization, the boy suffered pain and the fingers and hand appeared to be swollen. He received medication therefor. The defendant saw the boy again on Wednesday evening, October 24, 1962, at about 7:00 p. m. at the defendant’s office, approximately thirty-four hours after his discharge from the hospital. The defendant split or loosened the cast, cut a window therein and drained the lacerated wound. The arm had a noticeable odor. Some color was restored to the hand and the boy went home with his mother. At this time the hand again became dark. As the result of a call to defendant by the boy’s mother, he was readmitted to the hospital under the care of Dr. Smith, an orthopedic surgeon. The arm was discovered to be gangrenous and an operation was performed in an effort to restore circulation, followed by additional treatments until November 14, 1962, when the boy was transferred to a hospital in Salt Lake City, Utah, where further attempts to treat the gangrene were unsuccessful. On November 20, 1962, the right arm was amputated just below the elbow.

Plaintiffs rely on two points for reversal. Under point 1(A) and (B), they contend that the jury should not have been bound by medical testimony alone; and under point II, that defendant’s testimony, stating that the boy’s mother had made no complaints relative to defendant’s treatment, was inadmissible and prejudicial to plaintiffs.

Plaintiffs submitted two requested instructions, Nos. 18 and 19, which were refused by the trial court, and in each of those instructions, among other things, plaintiffs requested the jury to be instructed that:

“ * * * [Y]ou are not bound by expert medical testimony only, but may consider all the surrounding facts and circumstances, while giving due consideration to expert medical opinion.”

The court did, however, give instruction No. 3, which is U.J.I. 8.1, as follows:

“In treating and/or diagnosing the plaintiff, John Patrick Williams, the doctor was under the duty to possess and apply the knowledge and use the skill and care that was ordinarily used by reasonably well qualified doctors of the same field of medicine as that of the Defendant practicing under similar circumstances, giving due consideration to the locality involved. A failure to do so would be a form of negligence that is called malpractice.
“The only way in which you may decide whether the Defendant possessed and applied the knowledge and used the skill and care which the law required of him is from evidence presented in this trial by physicians testifying as expert witnesses. In deciding this question you must not use any personal knowledge of any of the jurors.”

It was admitted by counsel for plaintiffs in oral argument that requested instructions Nos. 18 and 19 are in conflict with the court’s instruction No. 3 to which no objection was made.

Considering the instructions as a whole, and in the absence of proper objection, and reading each in the light of all of the others, we cannot say that the trial court erred in instructing the jury, as the instructions given adequately cover the law applicable in the instant case.

“ * * * [A] 11 instructions must be read and considered together, * * * and if, when so considered together, they fairly present the issues and the law applicable thereto, they are sufficient. * * * )f

Tapia v. Panhandle Steel Erectors Company, 78 N.M. 86, 428 P.2d 625 (1967). Instruction No. 3 given by the court correctly states the general rule that ordinarily the standard,-of care of a doctor, and whether he exercised such care, can be established only by expert testimony; however, we do not intend to infer that, in a proper case, the jury is prohibited from considering non-expert testimony and. surrounding circumstances in conjunction with expert testimony in determining the question of negligence'of the doctor. We are aware that some jurisdictions, notably California and Washington, allow the jury to consider non-expert testimony. Friedman v. Dresel, 139 Cal.App.2d 333, 293 P,2d 488 (1956); Norden v. Hartman, 134 Cal.App.2d 333, 285 P.2d 977 (1955); Olson v. Weitz, 37 Wash.2d 70, 221 P.2d 537 (1950).

To preserve error in instructions for review:

“* * * (1) it is sufficient if a correct instruction has been tendered, if the court has not instructed on the subj ect matter ; (2) if, however, the court has instructed erroneously on a subject, even where a correct instruction has been tendered, it must be clear in the record that the error has been called to the court’s attention. Where the court has instructed erroneously, it is not a prerequisite to a right to complain of an instruction that a correct instruction be offered — rather the important question concerns the clarity with which the errors in the instruction given have been called to the attention of the trial court. * * * ”

Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798 (1961); Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337 (1960); State v. Compton, 57 N.M. 227, 257 P.2d 915 (1953). See also, Pfleiderer v. City of Albuquerque, 75 N.M. 154, 402 P.2d 44 (1965). Plaintiffs failed in this important aspect.

Plaintiffs submitted to the court their requested instructions Nos.

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482 P.2d 55, 82 N.M. 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-ex-rel-williams-v-vandenhoven-nm-1971.