*1 Plaintiff-Appellant, GOFFE, William LABORATORIES, INC., a
PHARMASEAL Corporation, Dr. J. Hunt Bur- California Center, Presbyterian ress Corporation, Inc., Defend- a New Mexico ants-Appellees. 2480.
No. Appeals of New Mexico. 7, 1976. Dec. *2 Toulouse,
James R. Krehbiel, Phil Tou- louse, Krehbiel DeLayo, P.A., & Albuquer- que, for plaintiff-appellant. Dines, Shaffer,
James M. Butt, Jones & Thornton, Albuquerque, for defendant-ap- Laboratories, pellee Pharmaseal Inc. Civerolo, Civerolo, Richard Hansen & Wolf, Albuquerque, for defendant-appellee Dr. J. Hunt Burress. Paulantis, Johnson,
J. T. Paulantis & Lanphere, Albuquerque, defendant-ap- Presbyterian Center, pellee Inc.
OPINION
HERNANDEZ, Judge. appeals granting of a sum- mary judgment in favor of the defendants. 26, 1971, August On entered the Presbyterian Hospital (Hospital) defendant from an suffering intestinal obstruction. J. He was treated defendant Dr. Hunt Burress. treatment consisted insert- tube, ing a K-2R Kaslow intestinal manu- by defendant factured Pharmaseal Labora- tories, (Laboratory), through nose, Inc. his through and thence the stomach into the help inserting intestine. To the tube into intestine, it was weighted small rubber balloon tied the end of the tube containing mercury, metallic also called tube, quicksil- quicksilver. The balloon and purchased Hospital. ver were mercury into put the balloon onto the end and tied it tube. On the morning August the intestinal removed, having obstruction been Dr. Bur- to withdraw the ress started tube. While process tube, was in the removing he containing mercury the balloon broke as bag to enter the passage. started nasal consequence, As a inhaled mercury into his lungs. some Burress, help with the hospi- some of the staff, turned the plaintiff tal upside down him on pounded the back to cause him up the cough mercury. How much he THAT A stayed how much THERE TRIABLE known and EXISTS IS- inhaled FACT, is noth- There system is known. OF in his PRECLUDING SUE SUM- the mercu- to indicate that the record ing in MARY JUDGMENT. system had adverse being
ry IV “POINT were tube and balloon effects. *3 IF “EVEN THE STRICT LOCALITY opportunity had the of and no one disposed SATISFIED, RULE HAS NOT BEEN following day the them. On to examine A STANDARD TO BE USED THE IS a plaintiff myo- the suffered events these ONE, NOT LOCAL.” NATIONAL infarction. cardial 21-l-l(56)(c), N.M.S.A. 1953 Section complaint alleged that in his 4) provides in pertinent part Vol. (Repl. degree the not exercise Burress “did [summary] judgment sought “The that: by others of his ordinarily exercised or skill forthwith if pleadings, be rendered the shall he similar treatment that profession in interrogatories, answers to depositions, hasty, negligent, and said tube in a removed file, with the together on affida- admissions manner, resulting rupture in the unskilled vits, any, genuine if show that there is no He . . .” fur- bag mercury a as to material fact and that the Burress directed oth- alleged that Dr. ther moving party is to a judgment entitled as a the back to remove him the pound ers to Supreme matter law.” Our in a this resulted mercury “pounding Brock, Goodman 498 P.2d subsequent with a coronary thrombosis (1972) adopted following language As to the Labora- infarction.” myocardial Holtzoff, from 3 Barron & Federal Practice the “tube alleged that tory, Procedure, (rev’d 1234 at § 124-126 unreasonably a condition was in defective 1958) as the Wright applied rule to be patient in that a user or dangerous determining whether a summary attached to the tube in motion for mercury bag of designed and un- should be improperly judgment or not: treatment “ treatment undergoing persons safe party opposing . . motion Also, “was the tube . .” given be benefit all is to reasonable it quality nor was fit for a merchantable determining genuine doubts whether a was intended.” for purpose If there are issue exists. such reasonable im- Laboratory had “breached an That doubts, summary judgment should be de- merchantibility and fit- warranty of plied A a dispute nied. substantial as to mate- regard Hospital, . .” ness fact summary judgment.” rial forecloses Burress was alleged that Dr. Supreme say Court went on to doing agent employee and that its or moving prima has a party made once acting he was within things he did various showing he is entitled to summa- facie scope employment. his the burden ry judgment, op- shifts to the points of alleges four error. to show posing party a there is together points 3 and will discuss We “By prima showing issue. a facie factual are as follows: such evidence as is meant sufficient in law “POINT a presumption of fact to raise or establish WAS IM- JUDGMENT “SUMMARY question fact in unless rebutted. . FOR THE OF FACT PROPER-ISSUES inferences, party which the opposing EXISTED. DECIDE JURY TO motion for enti- ****** have drawn from all the matters tled to the trial properly before considered III “POINT court, be reasonable inferences.” must ESTAB- DEFENDANTS “EVEN IF governing The rules con- [Emphasis ours.] MATERIAL LACK OF THE LISHED malpractice cases are of medical ISSUES, sideration MET HIS BUR- PLAINTIFF Forbis, forth in Cervantes WITH TAN- set OF FORTH DEN COMING (1964): DEMONSTRATING EVIDENCE GIBLE can physician surgeon “4. Actual damage “Before loss or resulting to malpractice in the treat- liable for held Prosser, the interests of another.” W. depart- he must have patient, of his ment Torts, 30, p. (4th Law of 1971) § ed. recognized standards of ed from Speaking question to the of stan community, practice departure therefrom, and a dard Dr. Bur something re- neglected to do have must upon relies ress the deposition testimony standards. by those quired [Citations and affidavit of II, Dr. A. Simms a surgeon poor The fact that result omitted.] residing practicing in Albuquerque. an unintended incident or that achieved deposition Simms testimony de exceptional circum- transpired, unless scribed present, does not establish inserting stances are and re showing moving without a that the result liability tube. His affidavit recited in physi- or incident occurred because of the part: *4 cian’s failure to meet the standard either Mr. “8. That Goffe again seen by acts, or by neglect, his inattention. Such April Dr. Simms at which generally by must be established facts he related the above episode time of in- expert testimony. [Citations omitted.] testinal obstruction and told of the use of Likewise, expert testimony generally mercury-weighted the tube. He also told required to establish causal connection.” mishap in removing the tube. Furthermore, expert the medical or “9. That Simms has reviewed the qualified
experts
express
must be
to
an
deposition of Dr. Burress in detail.
concerning
opinion
recognized
the
standard
“10. That in Dr. Simms’ opinion, the
community
practice
the
and
of medical
application and handling of the mercury-
opinion
departed
that
the defendant
intestinal
weighted
tube by Dr. Burress
neglected
standard or
to do some
that
from
acceptable
fell within the
standards of
thing required by the standards. Gandara
surgical care in this community.”
Wilson,
(Ct.
“1. A
or
law,
the actor to con-
requiring
practice
“That
of medicine in the
conduct,
standard of
form to a certain
Washington
State
is of the same stan-
against
of others
unreason-
protection
practiced by physicians
dard of care as
able risks.
City
Albuquerque,
State
New
part
failure on his
to conform to
“2. A
Mexico.
required. These two ele-
standard
“Mr.
related to me a description
Goffe
go
up
to make
what
the courts
ments
I
the incident and
have reviewed the
negligence;
have called
but the
usually
medical records furnished to me
Pres-
applied to the
quite frequently is
term
Hospital;
attending physi-
if the
byterian
may
Thus it
be said that
second alone.
pulled against
vigorously
cian
the ob-
negligent,
but is not
the defendant
degree
to such a
as
cause the
struction
duty
he was under no
liable because
rupture,
my opinion
it is
that
balloon
not to be.
acceptable
was not
such action
medical
causal con-
“3. A reasonable
close
[sic]
practice.
between the conduct and the re-
nection
opinion
further
if the
my
“It
sulting injury.
commonly
This is what is
cause,’
attending physician
vigorously
did
‘legal
‘proximate
known as
obstruction to such a
against
pull
cause.’
to N.M.
Dr. Ormsby’s
cause the balloon
as to
decree [sic]
deposition
naso-gastric
testimony
tube would
affidavit
is all
then
rupture,
contains of plaintiff’s
the record
evi-
been defective.”
have
The record
deposition
tions
among others:
“Q.
“A.
[******]
******
on that.
spillage
ress?
probability [that]
by any
Can
No,
reveals
I
you
gave
can’t
asked
say
I
really
put
as a matter
mercury
acts of Doctor Bur-
a term
following answers
don’t know.
following ques-
Ormsby
breakage
‘probability’
was caused
of medical
sidered
dence
these
tor
evidence
testify
answers
wife
lack of the
requisite
vantes,
departed from that
community and showing
requisite
standard.
and his own deposition testimony
matters.
as medical
supra, proof of
because
as to
care.
interrogatories
requisite knowledge
standard and
skill
As was
they are
However,
or failure to
experts
recognized
affidavit of
standard due to the
pointed
failure to
as to either of
cannot
competent
that the doc-
exercise the
standard
out
requires
in Cer-
lack
meet
con-
specialized
matter,
what,
subject
technical
ex-
tell
“Q.
specifically
me
if
you
Can
pert
usually
wrong?
Doctor Burress did
anything,
evidentiary
establish both of these
steps.
sir,
No,
you anything
tell
can’t
“A.
*5
not
does
contend
that
this is a
I
he did
specifically that
know
laymen
where
competent
are
to
situation
wrong.
testify.
know,
nothing
you
as
he did
“Q. As far
Assuming,
deciding,
met the
without
everything
stan-
that
wrong and
in the State of Washington
standard
you are
is the
with which
of care
dard
as in the Albuquerque community;
same
familiar?
assuming,
further
without deciding,
and
know,
I
he did noth-
Yes,
far as
as
“A.
Ormsby possessed
Dr.
the requisite
that
wrong.”
ing
expertise
give
opinion
to
an
this
whether it was the
asked
Ormsby, when
Dr.
matter; his statements are
help
of no
to
or a
pulling
Dr. Burress
defect
vigorous
plaintiff.
break,
it to
an-
which caused
the tube
Ormsby’s
swered:
Dr.
affidavit and deposi
testimony
really
I
contains
say
nothing
I
because
tion
as
No.
can’t
to
“A.
standard;
as
know,
and
to the departure
I am not even sure
don’t
and
I had been there.
standard
most
know if
that
that can be said
would
the testimony is
presents
about
that
it
“Q.
“A.
******
[******]
defective.”
a matter
it
Well,
No,
I have no
can
even defective?
of medical
you really even tell
knowledge that it
probability,
us,
equal
prove
Cir.
following
sistent with
Supreme Court
and Son
1934): “Where evidence is equally con
choice of two
neither.” That
Co.
two
v.
approval
Hartfeil,
Stambaugh
hypotheses,
mere
is
from P. F. Collier
(1940) quoted
possibilities.
to
F.2d 625
say
v.
Hayes, 44
the mere
tends to
(8th
Our
summary judgment pro-
does
possibilities
of a
not constitute
purpose
choice
litigation by
expedite
competent
“Competent
deter-
evidence.
ceeding
to
evidence
possesses compe-
very
that which the
mining
party
whether
means
nature of the
support
pleadings
things
proved requires
to
his
so as
to be
as the
evidence
fit and
tent
genuine
proof
particular
and
appropriate
issues of material fact
case.”
to raise
Jernigan,
matters at that state
46 N.M.
dispose
if not to
Chiordi
Agnew
Libby,
(1942).
having
to
proceeding.
failed
genuine
there were
is And as the Supreme
show
Court also said in this
of fact as to two of
essential ele
sues
case, more than the happening of an acci-
against
of his cause of action
Dr.
ments
to
dent
set the doctrine in opera-
the trial
Hospital,
court
tion.
the motion for
properly
First as to Dr. Burress and the
Granting summary
as to them.
judgment
Hospital, we believe that the plaintiff failed
requires grant
as to Dr. Burress
prima
make a
facie showing as to the
Hospital
plain
also as to the
ing it
element,
first
negligence. The only evi
against
cause of action
tiff’s
presented
dence
which would
being
on Dr. Burress
either its
premised
to this element
go
was the deposition testi
Klebanoff,
employee.
its
agent or
Smith
mony affidavit
Dr. Ormsby. We
1972);
P.2d 368
previously
have
discussed the
denied,
shortcomings
cert.
P.2d 355
evidence as to the requisite medical
Laboratory
failed
make an
and failure to
standard
observe the stan
showing that
there were no
affirmative
dard;
it is equally deficient as to this first
issues of material
fact as to it.
Dr.
did
Ormsby
say
element.
not
that this
did not
Consequently, the burden
shift
the kind
of incident which ordinarily
Although
to show otherwise.
does
occur in the absence of someone’s
Ormsby’s
depo
Dr.
Dr.
Simm’s
parts
negligence. Dr.
deposition
Simms
to the
helpful
Labora
sition
testimony had
say
this to
after discussing
enough
these statements are
tory,
procedures used:
showing necessary
the affirmative
make
Ormsby
plaintiff.
the burden
shift
Oh, no.
“A.
You are undoubtedly refer-
that he did not know whether the
stated
ring to occasional accidents when
Simms,
were
bag
defective.
tube
tube,
you remove a
where the bag
bags,
about these
said “occasional
speaking
suddenly
will
dump
break
they will break.
way
There
no
ly,
mercury wherever it’s at.
from it.” The trial court erred in
keep
*6
“Q. Well,
good
is that
thing
to do that
summary judgment as to the
granting
Lab
throat,
gets
so it
into the
oratory. Kelly v. Board of Trustees of Hill
throat?
Inc.,
112,
Hospital,
General
87 N.M.
crest
no,
not,
Oh,
very
“A.
it’s
but it’s
diffi-
1974);
denied,
cert.
Impossible
cult to avoid.
at times.
111,
claim of unresolved, the cross claim 2, as does set Monday, trial date was February remains Hospital and Laboratory against the 1976. Dr. Burress. 16, 1976, January years almost On three ORDERED. IT IS SO filed, complaint after was defendants summary for judgment. moved It was set J.,
LOPEZ, concurs. hearing 26, for on January 1976. It was on that date. not heard J., SUTIN, part and dissents concurs part. 26, 1976, deposition January On wife was taken part defendants.
SUTIN, Judge (concurring in
1976,
January
On
the defendants took
dissenting
part).
plaintiff’s witnesses,
depositions of
Doc-
summary judg-
I
in the reversal
concur
Ormsby
John W.
tors
and Bernard Goffe
S.
of defendant Pharmaseal.
in favor
ment
Seattle, Washington.
took
summary judg-
in the affirmance
dissent
of Doctor
deposition
G. Gordon
Hale
Presbyte-
Burress and
favor of Dr.
ment in
30, 31, 1976,
January
1976. On January
Hospital.
rian
depositions
took the
of Doctors J.
this dissent is not to de-
purpose
Simms, II,
E.
and A. G.
in Albuquer-
Goss
is not
liable. That
clare defendants
que.
appeal
of this Court
function
morning
2, 1976,
February
judgment. Our function
to de-
On
be-
summary
the selection of
of materi-
fore
jury,
whether a
defendants’
termine
exist,
jury
it does
shall
judgment
exists.
If
motion
heard.
al fact
whether
pages
verdict
of rambling
then decide
After
argument,
damages. The medical
recover
hours,
took approximately
entitled
two
this
explosion should not deter
court
all
trial
defendants a summa-
scrutinizing the
and the law.
facts
ry
without
judgment
plain-
consideration of
testimony.
tiff’s
Two and two-
Summary judgment
not hasten
A.
did
passed
years had
since the complaint
thirds
justice.
administration of
years
filed and four
five months
act malpractice.
claimed
occurred
after
claimed act
the summary
chose
filed
trial court
August
complaint
1971. The
by jury
rather
than
trial
May
October
seven-
route
route.
1973. On
later,
setting
No-
trial
teen months
years
five
elapsed
More than
have now
*7
26, 1974 was vacated because con-
vember
act malpractice.
the claimed
of
since
Sum-
discovery
yet
was
be
had. On
siderable
judgment, under
mary
the circumstances of
27, 1975,
February
defendant Pharmaseal
case,
trial,
on the
of
morning
this
was
setting
April
to vacate the trial
of
moved
injustice
plaintiff.
of
act
29,
plaintiff’s deposition
1975
specially concurring opinion,
a
said:
11, 1975. On
February
not
taken until
judgment
Summary
is a
in-
1975,
dangerous
21,
after the
April
years
almost two
justice
the administration
in
of
filed,
strument
setting
the trial
complaint
party
right
a
the
to trial
it denies
15,
when
September
a
time. On
vacated
second
upon factual
issues. The obvious
based
1975,
of pretrial
notice was issued
a
confer-
origin
rule from its
purpose of the
24,1975.
September
be held
It was
ence to
1949,
was to hasten the
New Mexico
December. On
held.
It was reset in
justice
26, 1975,
expedite
of
and to
plaintiff submitted in-
administration
November
trials.
litigation by avoiding
Pharmaseal. On
needless
terrogatories
defendant
56,
1, 1975,
setting
Libby,
was va-
53
771 497, 56(c) Rule New Mexi- history (1975). of This means that summary judgment does co indicates that trial court and this are justice; of the administration not hasten resolve all doubts in connection there- grant decide trial courts issues against with defendants. Cervantes v. which, believe, they summary judgments Forbis, 445, 73 N.M. (1964). 389 210 P.2d trial large a docket. In the vast avoids depositions filed, Where and affidavits are majority summary judgments appeal- of is the of function the trial to gather court ed, occurred, reversals and trial denied presented all facts to determine delayed. policy It was trial of a genuine whether issue of fact exists with to grant right courts of review of to whether reference defendants failed to justice it. trial whenever demands Trial degree of exercise care which an ordi- legal a courts must find rather than a narily prudent person would have exercised upon factual issue grant summa- of the duty the fulfillment to protect judgment. ry injury. On appeal, we will Tapia McKenzie, 489 testimony review most favorable 181, (Ct.App. 1971). 185 P.2d support it will bear in aspect of actions, right present In medical summary claim the merits to Arceo, jury. should not be a Coca judgment 186, substitute for because, (1962). on the generally, merits trial opinions will decision be based on ultimate case, Under the circumstances of this opposing experts judi- medical or of on procedural delay, continued the late taking subjective facts. cial determination Ex- depositions, medical decision sum- opinion is often based on pert judgment mary immediately after medical expert, or data made known to facts depositions were taken jury being a though the facts or even data are ad- large involved, and the present, expense 702, evidence. Rules missible to me that “we mean cannot countenance of the New Mexico Rules Evidence in which the procedures rights parties 20-4-702, 703, 704, (Repl. N.M.S.A.1953 [§§ prejudiced their rights substantive Supp.)]. Vol. invaded, or in which trials are had on the Summary judgment procedure involves a trials whether should had.” a “genu- of whether there is determination v. American Summers Reliable Insurance issue as to fact.” Rule ine Company, 56(c). This “material fact” relates to the events, happenings or circumstances this My review of case indicates to me to a give rise primary reason for summary case, In the instant claim. the “material application was the judgment “strict mechanical, relate to facts” non-technical rule, locality” deprive undertaken Dr. Burress right depositions to use medical taken in proximate injury cause of the suffered Washington. the State the plaintiff. grant To after “conspiracy silence” in the medical malpractice, act of without consid- claimed places heavy patients, burden on field *8 plaintiff’s testimony eration of and medical expert testimony opposing medical of doc- thereon, based does not hasten the evidence accepted should be with caution in tors justice. administration of making “genuine the determination of a any as to material fact.” locality was not in- B. The “strict rule” Where judg- defendants seek volved. ment, plaintiff is entitled to benefit of determining only malpractice in The claim of in this case all reasonable doubts wheth- any a withdrawal of an intestinal er issue exists as to out of the arises Skarda, in the case. Skarda v. 87 nose Dr. Bur- through plaintiff’s by fact N.M. tube 772 required is Expert testimóny not in medi- which resulted of
ress, manner bag. The jury if the mercury-weighted capable of a cal of collapsing mechanical, a evaluating signifi- and withdrawal appreciating of manner withdrawal The procedure. events cance that occurred. These non-technical an opera- of result unfortunate those was not events include which of a mechan- or in the treatment tion, involved care nor ical, layman non-technical nature which a did with- Neither patient. aof diagnosis comprehend well and might understand. A spe- skill of a care and involve drawal guidance need jury enlighten- does not and with a stan- confronted are not We cialist. concept ordinary of negligence ment. locality The “strict care. medical of dard This applicable into rule is play. comes a involved. not rule” mechanical, non-technical such as be- of the difference withdrawal distinguish intestinal tube We must patient’s event, of a concept through of a standard medical nose. Under this tween ordinary negli- in concept of care practice disap- and a of medical standard practice actions, the medical In gence. pears. degree that skill care is standard locality rule was applicable The strict not ordinarily possessed learning which is practice a standard of pro- of the medical by members exercised present. standing. physician A good in fession the standard conformed to surgeon who has involved, If a of care was a C. standard practice in medical cannot profession standard national controlled. actions, In negligent. negligence be found Simms, II, degree is that of care an Albuquerque care Albert G. standard would reasonably prudent person surgeon, a stated physician that the use same or circum- under the similar tubes gastrointestinal exercise is standardized na- stances. He testified as follows: tionwide. training surgical residents in terms. Ex- not confuse these
We must
in the last
years
a
United States
30
has
testimony
necessary to establish
pert
things
departure
well standardized
like inser-
pretty
therefrom
of care
standard
knowledge
and the use of tubes and
condition is such that
tions
tubes
so
when the
knowledge
on,
hospital
any
within the
one
peculiarly
although
it is
one
about
“However,
negli-
where
might
men.
have
gim-
of medical
certain little
physician
is demonstrat-
part of a doctor
But,
on the
he uses
gence
by
micks
success.
re-
by
can be evaluated
ed
facts
large, the use
mercury-weighted
of a
knowledge, expert testimo-
to common
sort
commonplace
been
in
long tube has
required.” Mascarenas v. Gon-
ny
States since the introduction
United
zales,
753
Miller-Abbott Tube
about 1934.
1972).
authority is
Lanier
Cited
Seattle,
Ormsby and Goff of
Doctors
Trammell,
773
that,
Mexico,
in New
Care
argued from Coe
Standard of
for the Medical Profes-
in
physician’s negligence
of a
com-
question
“Accepted
Formula,
sion: The
Practice”
28
may
medical matters
be determined
mon
(1975);
Vanderbilt L.Rev. 1213
Edwards v.
from
throughout
of doctors
States,
(5th
519
1975),
United
F.2d 1137
Cir.
knowledgeable
par-
who are
country
dissenting opinion.
Roehl, The
Medical
Law of
ticular field.”
history
A review
of the “strict
Mexico,
in New
3
Malpractice
N.M.L.Rev.
locality rule” and the reasons for modern-
(1973).
agree.
294 at 298
adoption
have led
ization
of a nation-
1964, the
locality
adopt-
In
strict
rule was
wide standard
care.
Annapo-
v.
Shilkret
Forbis,
v.
in New Mexico. Cervantes
ed
Ass’n,
Emergency
lis
187,
276 Md.
1973,
supra.
reluctantly
In
this Court
de-
(1975);
Eblen,
A.2d 245
v.
349
Blair
461
rule.
sug-
modernize the
We did
clined to
(Ky. 1970);
370
Pederson v.
S.W.2d
Dumou-
Supreme
Court review Cer-
gest that
chel,
Shilkret,
In
supra.
supra, Judge Le-
light
of U.J.I. 8.1.
v.
vantes
Gandara
vine
the rule as
stated
follows:
161,
Wilson, N.M.
85
ourselves with the
align
We
Kentucky
1973).
approved
This instruction was
physician
hold that a
court and
is under a
Vandenhoven,
352,
82
Williams
482
degree
duty to use
skill
(1971). All that
is necessary
P.2d 55
expected of
which is
a reasonably compe-
adopt a national standard is to eliminate
practitioner
tent
in the same
class
“in the community”
the words
from the
belongs, acting in
which he
the same or
rule stated
Cervantes.
similar circumstances. Under this stan-
It
be noted under
8.2 that
should
U.J.I.
dard,
in the profession,
advances
availa-
practice
of a
duty
specialist
facilities,
bility of
specialization or gener-
to any locality.
is not limited
practice,
al
proximity
specialists
8.1
8.2, approved
I believe
U.J.I.
facilities,
special
together with all other
Court,
Supreme
by the
modified
strict
considerations,
relevant
are to be taken
locality rule in Cervantes.
into account.
A.2d at
[349
253].
provides
8.1
U.J.I.
“due considera
With
regard
the rule applicable to
given
locality
tion”
be
“to the
in
should
hospitals,
following
adopted:
‘locality
“The
volved.”
rule’ has no
hold, therefore,
We
that a hospital is
except
vitality
may
present-day
be
required
degree
use that
of care and
as one of the
to deter
considered
elements
expected
skill which
of a reasonably
degree of care and
mine the
skill
is to
hospital
competent
in the same or similar
expected
average practitioner
circumstances. As in
brought
cases
belongs.
to which he
...
the class
In
against physicians, advances in
pro-
words,
practice
local
within geograph
other
fession, availability
special
facilities
one,
proximity
only
ic
but
factor
and specialists,
together with all other
Dumouchel,
Pederson v.
be considered.”
considerations,
relevant
are to be taken
72 Wash.2d
31 A.L.
into
254],
account.
A.2d
[349
(1967);
Freedman,
R.3d 1100
Shier
58
(1973);
Wis.2d
775
genuine
issue of material
Each
case must
There
be decided on its own
proximate
on the
cause
fact
pointed out,
facts. As heretofore
the negli-
attack.
heart
gence of Dr.
mechanical,
Burress involves a
procedure
non-technical
in which expert
Dr.
Negligence
Burress.
(2)
testimony is
required.
not
care was exer-
Burress testified that
Dr.
Plaintiff’s complaint did not allege the
tube,
of the
during the withdrawal
cised
doctrine of
ipsa loquitur.
res
It alleged
used to extract
the mer-
and
“during
the removal of said intestinal
is to the
Plaintiff’s evidence
con-
cury.
tube, Defendant, Dr. Burress
.
.re-
trary.
A
fact
moved said tube in a hasty, negligent, and
negligence
on the
exists
Burress.
manner,
unskilled
resulting in the rupture
bag of mercury
of a
at the end of the tube
ipsa loquitur
The doctrine of
(3)
res
is
passage
in the nasal
of Plaintiff”. These
applicable.
general allegations
of negligence and
trial court
also
ipsa loquitur
the doctrine of res
applica-
ipsa
because the doctrine of res
ble,
not
though
pleaded. Mares v. New
applicable.
was not
loquitur
Co.,
Public
473,
Mexico
Service
82
discussing
Mexico
ipsa
“New
decisions
res
(1938).
257
P.2d
ap-
cases have not
loquitur
ipsa loquitur
“The doctrine of res
is a
the doctrine. These decisions have
rule
plied
not
applied
peculiar
held the doctrine could
of evidence
to the
law of negli-
appropriate
Klenbanoff,
case.” Smith
gence
recognizes that prima facie
50, 55,
368,
499
373 (Ct.App.
P.2d
negligence may be established without di-
1972).
proof and furnishes a
rect
substitute for
specific proof
negligence.”
65A C.J.S.
essential
are necessary
Two
elements
to
Negligence
(1966).
220.4
“There
§
must be
(1)
the use
allow
of the doctrine:
showing that the
some
cause of the
injury
plaintiff
proximately
accident
caused
directly
naturally
collapse
by
mercury-weighted
result of some
in the withdrawal of the
bag
intestinal
act or condition with which the defendant is
tube, which was under the exclusive control
connected and
ordinarily
does not
defendant,
management
(2)
and
and
happen if those who have control or man-
causing
the event
the injury
to the
agement
proper
exercise
care.” Renfro v.
was of a kind which
plaintiff
ordinarily
Coggins Company,
D.
71
J.
N.M.
not occur in the absence of negligence,
does
(1963).
P.2d
135
378
part of the doctor who was in
on the
control
case,
In the instant
the evidence most
instrumentality.
U.J.I.
12.14.
plaintiff
(1)
shows
favorable
Ciesielski,
87
Waterman
had
control
manage-
exclusive
and
(1974).
ment of
withdrawal of the intestinal
ipsa loquitur
quagmire
is in a
Res
tube,
injury
and the
judicial
discussion in medical
proximately
caused
the manner in which
Annot.,
(1946), sup-
The introduction negligence specific acts of does prove Plaintiff is entitled to application. its deny He not be the doctrine. should rely on loss of inference be- penalized willing go has been forward he cause *12 prove specific acts of he can to the best do Markey, negligence. Tuso Ewing, Harless v. (1956); 1970); (Ct.App. Ter- P.2d 520 N.M. 86, Dunlap, N.M. P.2d 1008 ry 1972) J., (Sutin, dissenting). by plaintiff were not issues raised Other majority opinion. I decline answered dissent. extend this favor of Dr. Presbyterian Hospital should reversed. P.2d 612 Mexico, of New STATE Plaintiff-Appellee, DOE, Defendant-Appellant. John
No. 2983. of New Mexico. Appeals Court 16, 1977. Aug. Hartke, Defender, Chief Public Jan A. Storment, Defender, Sept. 8, Reginald Appellate of Certiorari Denied 1977. J. Writ Fe, defendant-appellant. for Santa Gen., Atty. Anaya, Tan- Toney Suzanne Gen., Fe, ner, Atty. plain- Santa Asst. tiff-appellee.
OPINION HENDLEY, Judge. adjudicated delinquent The child of care or child in need rehabilitation. found to have the child Children’s intentionally received or retained stolen 40A-16-11(A), contrary property § (2d Repl.Vol. Supp.1975) S.A.1953 petty of less than $100.00 a value —a