*1 HARGRAVE, C.J., OPALA, V.C.J., and
HODGES, LAVENDER, SIMMS,
DOOLIN, ALMA WILSON and
SUMMERS, JJ., concur.
KAUGER, J., recused. SISSON, By Through her
Carmen
mother, guardian, natural and next-of- ALLEN,
friend, formerly Brenda Bren Allen, Sisson;
da and Brenda Individu
ally, Appellants, ELKINS, M.D., Individually;
Ronald C. M.D., Inc., Elkins,
Ronald C.
corporation, Appellees.
No. 72578.
Supreme of Oklahoma. Court
Nov. 1990. Nov. 1990.
As Corrected
Concurring Dissenting Opinion Kauger,
of Justice Nov.
As Corrected Dec.
clude correctly lower court refused on the instruct doctrine of lo- quitur, adequately instructed on the imposed upon physician of care pos- sessing a medical specialty. We affirm. Sisson, plaintiff, Carmen was born congenital with a heart defect which re- quired surgery corrective to sustain her life. age At seven weeks of Carmen under- went procedure, a Raschkind the first of operations. three corrective At four she underwent her next life-sustaining surgery, procedure. operation Rastelli This latter implanting involves an artificial Dacron graft or “conduit” major which acts as a blood vessel. Because the conduit is of a size, it fixed becomes less efficient as the grows. child It is not uncommon for the progressively conduit to become obstruct- ed, replacement. requiring years procedure, Ten after her Rastelli circulatory system Carmen’s had regressed point suffering to the that she was dizzi- fainting spells. ness and It became neces- sary undergo that she a Rastelli “redo” to replace existing All conduit. Rastelli sternum, procedures require that breastbone, open expose be cut the un- derlying Opening conduit. the sternum in procedure more “redo” involves risk be- cause the structures tend to beneath ad- back they here to the of the sternum as operation. heal the earlier Because a surgeon preoperatively cannot know precise position, conduit’s he must assume sternum, it is adherent Baum, Shores, Shores, Mark Ralstin & proceed great therefore caution as he appellants. City, Oklahoma for through Tearing cuts the sternum. or cut- ting the conduit is a risk in a Rastel- known Short, Barnes, Wiggins, Wiggins, John defendant, Elkins, li “redo”. Dr. Adler, appel- Margo City, & Oklahoma operating surgeon. lees. Frates, Farris,
Kent F. Frates & Okla- In opening Carmen’s sternum the doctor City, homa amicus curiae State Oklahoma conduit, causing significant cut into the Medical Ass’n. hemorrhage stopped by which could application pressure. Dr. Elkins
SUMMERS, Justice:
completed
opening
placed
sternal
partial,
bypass.
case Sisson
then total
Dur-
this
complication,
brought
back a verdict for the defendant
this
Sisson underwent a
challenging
thirty
appealed,
period
approximately
doctor.
minutes of
Plaintiff
pressure resulting
in re-
sufficiency
the correctness and
reduced blood
con-
jury.
oxygen
court’s instructions to the
duced
to her brain. The reduced
We
oxygen
patient
flow caused her to
perma-
sustain
of the
was unsuccessful.
Id. at
166-67;
damage.
Keller,
nent brain
see also Hembree v. Von
(1941).
189 Okl.
An
trial,
At
mother
Carmen’s
claimed three
given
instruction
on res
*3
errors
Elkins’ course of action
(1)
only
at common
in the
law
absence of
negligence: (1)
which constituted
the use of
plaintiff’s
the
having offered direct evi-
a reciprocating,
oscillating,
rather than
saw
(2)
negligence,
dence of
the injury
where
sternum, (2)
opening
place
in
the
failure to
by something
was caused
within the exclu-
prior
bypass
surgery,
Carmen on
(3)
defendant,
sive control of the
and where
(3) failure to induce cardiac
the
arrest after
event causing
injury
was of a kind
hemorrhage.
jury
The
returned a unani-
ordinarily
which
does not occur
the ab-
mous
in favor of Dr.
verdict
Elkins. On
sence of negligence
part
on the
of the
appeal,
plaintiff
trial
maintains that the
person in the situation of the defendant.
refusing
give
to
requested
court erred
a
John’s, supra;
Independant
St.
Eastern
instruction,
charg-
ipsa loquitur
res
and in
Torpedo
Gage, supra.
v.Co.
with a
of a non-specialist
physician in a case where
John’s,
the defendant
Since
the doctrine of
Si.
res
clearly
specialist.
was
a
ipsa loquitur
Oklahoma
codified for
has been
medical
permit-
State Medical Association
malpractice
by
has been
76
cases
O.S.1981 21:
as
ted to file its brief
curiae.
amicus
any
arising
In
negligence
action
care,
rendering
medical
a pre-
of
sumption
negligence shall arise
if the
LOQUITUR
RES IPSA
1
following foundation facts
are first es-
urges
Plaintiff
that
court
the trial
tablished:
refusing
give
to
a
ipsa loqui-
erred in
res
injury;
1. The plaintiff sustained
(“The
phrase
tur instruction. The Latin
proximately
2. Said
caused
itself”)
thing speaks for
refers to a rule of
by an instrumentality solely within the
whereby
negli
in certain
cases
defendants;
control of the defendant or
gence
may
of the defendant
inferred
be
hap
mere fact that the
from the
accident
Such
does not
occur
pened.
Bottling
Lawton Coca Cola
v.Co.
under
circumstances absent negli-
610,
202 Okl.
Shaughnessy,
At no in his R. testify proposition an as second as such Carmen’s Plaintiff’s serts that error committed does not occur under these reversible was giving covering prejudicial instructions we find no error in the order of duty special- non-specialist given, of both a and a the instructions the better physician. giving She ist asserts “general” to follow one would be imme- contradictory both instructions one, diately “specialist” latter confusing, physician spe- that a is either a specialist, effect such being to the that a as non-specialist, cialist or and that because here, higher the defendant is held to the in- specialist, Elkins is a cardiac using learning and skill ordi- given that should struction have been special- narily possessed by similar pertaining specialist. As authori- ists. solely ty, Reif, relies v. Boyanton she Initially, Boyanton we note that as cited 68,417, slip op. (Okla.Ct.App. July No. value; unpub precedential it lacks 1989) (unpublished opinion). opinion Appeals. lished the Court instruction, objected numbered Further, 30.5. it was vacat 20 O.S.1981 “10”, as follows: the court reads opinion ed this Court own recent our otherwise, agrees he states Unless (Okla. Boyanton Reif, physician employed person im- to treat a 1990). *5 possesses that pliedly warrants that he pronouncement is Boyanton Our dis- skill, learning, experience degree of and positive. that medical case ordinarily possessed by pro- of his others defendant, against surgeon instruc- field, practicing the same and fession specialist for and non- tions both medical ordinary use care in the that he will specialist physicians given, substan- were application his skill exercise of and the tially given identical to here. those We knowledge and to accom- experience his error found no there. See also Karriman plilsh purpose for which he is em- Clinic, Orthopedic judg- the he ployed, and will use his best (Okla.1973); Traverse, 362 Eckels v. P.2d diag- in the of his skill ment exercise Furthermore, (Okla.1961). we not- nosing treating the condition and ed that error could arise should both in- He does a cure and patient. not warrant spe- not be given, structions because success responsible not for the lack of is of, is not cialist instruction a refinement an failure that lack from his unless results to, non-specialist alternative instruc- ordinary or from his lack to exercise care non-specialist tion. While instruction skill, ordinary learning, experi- and required, knowledge addresses the and skill ordinary learning, possesses If he ence. adequately degree not it does address skill, experience ordi- and and exercises Boyanton, care. P.2d at 605. Con- same, he is not nary applying care whole, sidering the instructions as a see judgment. for responsible mistakes of Middlebrook, at we conclude substantially as Uni- the same Okla. It is presenta- that the trial court’s concurrent 13.8, Civil, Instruction, Jury No. form two to the jury tion of these instructions that trial court here cor- exception confusing not did not constitute and out “same or similar rectly excised error. reversible appearing in the O.U.J.I. locality” clause O.S.Supp.1983 20.1 formbook. Jury argues Plaintiff also that In (statute establishing medical stan- national No. 10 is inconsistent with struction dards). O.S.Supp.1983 which holds Okla 20.1 physicians homa to a national standard of given duty instruction here on to, objected She asserts that 20.1 re specialist, not care. Section and 13.4, objec national quires No. and standard to be patterned O.U.J.I. standard, Although given and instruc- given as instruction No. 8.2 tive good specialists Jury and used Instruction No. 8 stated: sessed standing in the field under similar same physician out to be a who himself A holds degree higher particular owes This of learn- specialist in a field of medicine circumstances. is using patient possessing and general practitioner. to his skill than that aof degree learning pos- and skill subjective tion stated a HARGRAVE, C.J., standard insofar as HODGES, physician LAVENDER, is rely JJ., DOOLIN, allowed on his best SIMMS and concur. judgment. Jury Instruction giv- No. part:
en states in OPALA, V.C.J., judgment. concurs in physician “.... employed to treat a WILSON, J., ALMA part, concurs in person impliedly warrants that he part. dissents in will use best judgment his in the exercise KAUGER, J., concurring part, of his skill in diagnosing the condition dissenting part, joining OPALA, in treating patient.... If he V.C.J., in his treatment of Art. 5 § possesses ordinary learning, skill and ex- Const, Okla. and 76 O.S.1981 21. perience and ordinary exercises care in applying same, responsible ishe SIMMS, Justice, concurring: in judgment.” mistakes I in affirming concur judgment of the court, however, trial I cannot embrace the We Jury find that Instruction No. 10 is Imler, rule of Middlebrook v. Tenny, and O.S.Supp.1983 inconsistent with 76 Okl., M.D.’s, Kugler, (1985), 20.1, which reads: which permits giving required The standard of care of those instruction when direct of specific engaging healing presented acts of jury. arts within the State of Oklahoma shall See, dissenting opinion, Middlebrook, su- be measured national standards. pra, at 587. *6 Initially we note that Section 20.1 makes no OPALA, Justice, Vice Chief requirement “objective” of an standard. KAUGER, Justice, whom joins solely for Further, the generally ap standard of care exposition 46, Okl.Const., the of Art. 5 § plied to physicians requires physi and concurring of 76 O.S.1981 § skill, care, cian the exercise learning judgment. ordinarily by physicians exercised un Today the court affirms the trial court’s der similar circumstances. Karriman v. judgment in a malpractice medical on case Clinic, 540; Orthopedic 516 P.2d at Stan jury defendants, the verdict the for hold- Coronary Disease, dards Care Heart of ing, alia, the inter trial court correct- 2807; Prosser, OBJ W. 54 The Law of ly to jury refused instruct the on our codi- Torts, (4th Ed.1971). at 162 This standard fied of version the common law’s res plainly Jury is stated in Instruction No. 10. loquitur doctrine, which is found in 76 O.S. physician To allow the to exercise his best Although 1981 21.1 I fully support the §
judgment
is
within these boundaries
not
judgment’s affirmance, I
not pause
would
contrary to
20.1.
Section
consider,
today
does,
to
as the court
wheth-
on
judgment
The
entered
the
verdict
er
plaintiffs
the
were entitled to the re-
physician
in favor of the defendant
is af- quested
ipsa loquitur
res
instruction.2
Rather,
they
firmed.
I would assume
were and
pertinent
opinion promulgated
§
The
terms
In
of
O.S.1981
are:
an
not
but
carried to
mandate,
court,
majority
per-
a
of this
whose
arising
negligence
“In
action
from
changed
pronounce-
not
sonnel have
since that
care,
rendering
presumption
medical
a
ment,
evidentiary predicate
held
the
had
following
negligence
arise
the
founda-
shall
if
(or
statutorily required
facts”)
“the
foundation
tion facts are first established:
invoking
doctrine,
ipsa loquitur
for
the any injury;
plaintiff
"1. The
sustained
21, may
which are
§
embodied in
established
by
proximately
"2. Said
caused
Presbyterian
Hospi-
Pearson v.
instrumentality solely
an
within the control of
inference.
tal, Inc.,
(No. 65,982
defendants;
59 O.B.J.
3460-3461
the
defendant
6, 1988).
opinion
ordinarily
December
va-
occur
later
“3. Such
does
publication
negligence
cated and withdrawn from
absent
on
on Feb-
under the circumstances
ruary
upon
part
parties’ joint
the
the
the
defendant.
motion to
1989—
"
”
* * *
added.)
(Emphasis
dismiss that followed the claim’s settlement.
(non-medical)
no other
ipsa loquitur.5
In
proceed
the
then
to address
defendants’
constitutionality
upon
negligence
compel
frontal attack
case would
law
variant of
common-law
presumed.
lack of due care to be
Under
§
provision
ipsa loquitur
This
doctrine.
rule,
is
generally
the trier
common-law
application solely
for
to claims
enacted
negligence only if
permitted
infer
direct
to
my view,
In
against
providers.
health
negligence
plain-
is
beyond
evidence of
statutory
Art. 5
doctrine
violates
§
ability
secure but
lies within the
tiff’s
to
46, Okl.Const.,3
governs only
it
because
§
Moreover,
reach of
defendant.6
evi-
subclass
litigants.
of tort
acts of want of due care
dence of
proce-
inapplicable.7 Today’s
Article 5
46 mandates statewide
§
renders the doctrine
expressly prohibits
uniformity.
dural
It
“In-
opinion distinguishes
further:
§
enacting
legislature
“any
from
local or
negli-
stead of
an
inference
[rjegulating
law ...
did,
gence
the common
rule
the rules
evidence in
changing
presumption
there-
establishes
statute
judicial
(Emphasis
proceedings_”
sum, these
(Emphasis
original.)
In
of.”
pre-
mine.)
create a
terms
a dichotomous res
distinctions create
only
against
sumption
generally governs
doctrine —one that
providers.
care
presumption
health
gence
and the other that is limited
cases
plaintiff
arises when the
shows that
litigation.
proximately
caused
in-
injury was
v. Porter8
held
Reynolds
this court
strumentality
sole
within the defendant’s
Const.,
in-
Okl.
is
that when Art.
harm “does
control
challenge
validity,
voked
a statute’s
neg-
under
circumstances
absent
occur
only
resolved is whether
issue to be
part
of the defendant.”4
ligence
addressing
subject
enumer-
sharp departure
The statute manifests
enactment —
treat-
“targets
ated
parameters
law’s
of res
common
46—
different
Const.,
plaintiff
defendant
pertinent
if
shows that the
of Art. 5
Okl.
3. The
terms
over it.
no inani-
had
control
When
provide:
exclusive
implicated,
object
mate
shall, not,
Legislature
except
"The
as otherwise
Constitution, pass any
provided
local
in this
*7
peculiar
"it
situation
...
is the
involved
authorizing:
special law
or
effect,
and,
says
negligence
‘speaks’
in
part
have been
of the defendant must
of,
jurisdiction
"Regulating
or
or
causing
damage
be-
or
involved in
judicial pro-
changing
the rules
cause,
experience,
as a matter
common
courts_”
ceedings
inquiry
before
ordinary
course of
such a situation and
things,
added.)
(Emphasis
damage
plaintiff
injury or
to the
if
defendant had
would not have occurred
21, supra note 1.
4. See 76 O.S.1981
exercising
ordinary
required in
been
care
Chapman, supra at 162
such a situation.”
Imler, Tenny
Kugler
v.
&
5. See Middlebrook
(the
2).
syllabus ¶
court’s
kl.,
(1986),
where
M.D.'s
singles out medical defendants
for a treatment. No different other negligence litigants subject are evidentiary
same presumption found in today I would follow this court’s
teachings Reynolds and invalidate that
part of the statute which alters the ele-
ments of the common-law doctrine exclu-
sively malpractice litigation. for medical
All negligence governed by actions must be parameters
identical of the common-law
doctrine.
For all these reasons I would affirm the judgment.
trial court’s Justice,
KAUGER, (concurring part,
dissenting part, OPALA, joining Justice,
Vice in part). Chief
I dissent for the stated in reasons dissenting opinion in Boyanton v. Reif (Okla.1990). I also dissent
because under the Okla. Const. art. 46,1 statute, 76 O.S.1981 is unc
onstitutional.2 WOOLDRIDGE,
Gregg Appellant, Alan *8 Oklahoma, Appellee.
STATE
No. F-89-223. Appeals
Court of of Oklahoma. Criminal
Nov. 1990. Porter, 2201(A) Reynolds supra provides: 2. at note 8. Title 12 O.S.1981 “A. notice Judicial shall be taken Const, provides pertinent art. Okla. law, court of the common constitutions and part: state, public every territory statutes force in not, except Legislature shall as otherwise "The jurisdiction of the United States.” Constitution, pass provided any this local Title 76 21 could be cured strik- O.S.1981 authorizing: arising “In action changing judi- the rules of evidence in rendering courts, of medical care." proceedings inquiry cial before