Cyrilla Murphy and George H. Murphy, Appellants, v. Harold L. Dyer, Appellee, 409 F.2d 747 (10th Cir. 1969)

In this diversity, malpractice suit arising in Colorado by a patient against her Colorado Springs doctor the defenses were the statute of limitations and non-negligence. The jury returned a general verdict for the defendant under instructions submitting the case on both limitations and negligence. On appeal, the patient, Mrs. Cyrilla Murphy, complains of the court's instructions on limitations but since no objections were made to them in the trial court and they do not appear to be palpably wrong we accept them as the law of the case. Rule 51 F.R.Civ.P. 28 U.S.C., Iannacito v. Denver & Rio Grande Western R. Co., 380 F.2d 1019 (10th Cir. 1967) and cases cited.

If, of course, the verdict of the jury can be said to rest upon the repose of the statute of limitations our lawsuit is at an end. But the case was not submitted on special issues nor was the court requested to do so.¹  And in such circumstances we cannot surmise that the jury's verdict rested on limitations.²  Maryland v. Baldwin, 112 U.S. 490, 5 S. Ct. 278, 28 L. Ed. 822 (1884) followed in Sunkist Growers, Inc. v. Winckler & Smith Co., 370 U.S. 19, 82 S. Ct. 1130, 8 L. Ed. 2d 305 (1962).

This brings us to the negligence issue and directly to the exclusion of expert medical testimony which came about in this way: Mrs. Murphy claimed that the defendant, Dr. Harold Dyer, negligently gave her a spinal anesthetic (commonly known as a "saddle block") which resulted in serious neurological deficiencies. Dr. Dyer, a certified obstetrician and gynecologist, took the deposition of Dr. Daniel Moore, a noted anesthesiologist from Seattle, Washington but did not put it into evidence. At the trial, counsel for Mrs. Murphy offered into evidence portions of it to prove (1) the standard of care required of Dr. Dyer and (2) the res ipsa loquitur theory that if Dr. Dyer had given the spinal in accord with the prescribed standards Mrs. Murphy's injury would not have occurred. The court excluded this evidence in the absence of a showing that Dr. Moore was familiar with the standards employed in Colorado Springs or similar communities and for the further reason that the specialties of Dr. Dyer differed significantly from those of Dr. Moore. It seems that Colorado follows the Restatement rule to the effect that a physician "is required to exercise the skill and knowledge normally possessed by members of that profession * * * in good standing in similar communities." Restatement of Torts 2d, § 299A. See Foose v. Haymond, 135 Colo. 275, 310 P.2d 722 (1957); Klimkiewicz v. Karnick, 150 Colo. 267, 372 P.2d 736 (1962); and Brown v. Hughes, 94 Colo. 295, 30 P.2d 259 (1934). Certainly the similar locality test has been subjected to persuasive, scholarly criticism and has recently been rejected by two states in well reasoned opinions. See Prosser, Torts § 32; Douglas v. Bussabarger, 438 P.2d 829 (Wash. 1968); and Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968). But in this diversity suit we are, of course, bound by the Colorado rule.

The difficulty of our case lies in determining whether the Seattle witness was properly qualified to testify concerning the standards of obstetrical anesthetics as practiced in Colorado Springs. This brings us to a close examination of pertinent parts of the deposition.

On cross-examination by plaintiff's counsel, Dr. Moore testified that while the "standard practice in one community may vary to another community * * *" "the general principal [sic] of administering a saddle block are generally adhered to and fairly well established." To make the testimony competent, it was encumbent on Mrs. Murphy to affirmatively show that Dr. Moore was familiar with the practice in communities like Colorado Springs which does not necessarily mean that he had practiced his specialty there. Dr. Moore was not a Colorado Springs physician but he was a renowned anesthesiologist. He has written texts on the art, science and practice of anesthesiology with particular reference to the techniques of "spinal blocks". His books are the standard texts in the specialty in medical schools. But the question here is not whether he was a renowned expert but whether, as such, he was familiar with the standards of practice and particularly the techniques employed in Colorado Springs or similar communities. We must judge the defendant's standard of care by the norms of the local practice.

There is no predicate in this record that Dr. Moore was familiar with the prevailing practices in Colorado Springs or that the anesthesiologists in Colorado Springs follow the "generally adhered to" textbook standards of Dr. Moore. Dr. Dyer recognized Dr. Moore as "one of many authorities" in the field but he said he did not follow Dr. Moore's technique. While it may not make good evidentiary sense to say that a renowned specialist is incompetent to testify concerning standards of care in the practice of his speciality, it does seem to be the prevailing rule in Colorado. And, after all, the trial court, not this court, is the first and best judge of the competency of expert witnesses. See Riley v. Layton, 329 F.2d 53 (10th Cir. 1964). In Riley we sustained the trial judge's admission of expert testimony under the similar locality rule based upon a showing that while the expert had not practiced in the defendant's locale, he was familiar with the practice in similar communities. Likewise the plaintiff made no showing that the standards of administering a spinal anesthetic would be the same for a certified obstetrician as for a certified anesthesiologist. In the area of professional standards the law is guided by expert testimony. Without this showing plaintiff failed, as a matter of law, to qualify Dr. Moore to testify relating to the facts in this case. The exclusion was proper and must be sustained.

Complaint is also made of the exclusion of a hypothetical cause and effect question. Plaintiff's counsel asked the question which included details relating to a technique of administering a "saddle block". The technique as first described omitted any reference to the insertion of the spinal needle through an introducer and the withdrawal of the stylette to show a clear spinal fluid (called aspirating) before injecting the anesthetic. On defendant's objection, the trial judge required the plaintiff to restate the question including these two features to accord with the technique as described by Dr. Dyer on cross-examination. In his discovery deposition, Dr. Dyer omitted any reference to these features but added them at trial. We think the required correction was error and counsel should have been allowed to ask his question in accord with his theory of the case, i. e. that Dr. Dyer did not use the introducer or aspirate, leaving the integrity of the question to cross-examination. 2 Wigmore on Evidence, (3rd Ed.) § 682(b).

The error committed was harmless, however, and in no way prejudicial to the plaintiff. The question as first put to the expert witness called for an opinion as to the cause of the injury. As restated the witness was still able, with reasonable medical certainty, to testify "that there is a causal relationship * * between the administration of the anesthetic and the neurological deficit or neurological findings that Mrs. Murphy has." No offer of proof was made by the plaintiff indicating that she intended to prove anything other than the cause of the injury by this witness and, therefore, she could not have been harmed by the error. Rule 61, F.R.Civ.P., 28 U.S.C.

The remaining asserted errors have no merit. In the absence of some testimony of a prescribed standard of care the observance of which would have avoided the injury a res ipsa loquitur instruction would have been improper. See Weiss v. Axler, 137 Colo. 544, 328 P.2d 88 (1958). And whatever may have been the element of surprise to the plaintiff in Dr. Boyd's testimony, concerning an alternative causal theory of the injury, i. e. an allergic reaction, there is nothing in the record to indicate that counsel made a point of it in trial, or that he requested time to meet it. Likewise, the exclusion of requested rebuttal witnesses by the plaintiff as cumulative was well within the trial court's discretion and we find no abuse in his exercise of it.

The judgment is affirmed.