TOPPINO V. HERHAHN, 1983-NMSC-079, 100
N.M. 564, 673 P.2d 1297 (S. Ct. 1983)
CASE HISTORY ALERT: see ¶1 - affects
1983-NMCA-060
JANICE TOPPINO, Petitioner,
vs.
FRANK T. HERHAHN, M.D., Respondent.
SUPREME COURT OF NEW MEXICO
1983-NMSC-079, 100 N.M. 564, 673 P.2d 1297
Original Proceeding on Certiorari, A.
Joseph Alarid, District Judge.
Toulouse, Toulouse & Garcia, James R.
Toulouse, Albuquerque, New Mexico, for Petitioner.
Rodey, Dickason, Sloan, Akin & Robb,
Bruce Hall, Debra Romero Thal, Ellen G. Thorne, Albuquerque, New Mexico, for
Respondent.
Sosa, S.J., wrote the opinion. WE CONCUR:
H. VERN PAYNE, Chief Justice, WILLIAM R. FEDERICI, Justice, WILLIAM RIORDAN,
Justice, HARRY E. STOWERS, JR., Justice.
{1} This suit was brought to
recover damages for alleged malpractice, breach of express or implied
warranties, and lack of informed consent. The Plaintiff, Mrs. Toppino, claimed
the defendant, Dr. Herhahn, caused these damages during five plastic surgeries
to reconstruct her right breast. During the trial, the plaintiff abandoned the
theory of lack of informed consent. The trial court directed a verdict in favor
of the defendant on the negligence issue. The jury returned a $27,500 verdict
for the plaintiff on the warranties issue which the defendant appealed. The
plaintiff cross appealed the
{*566} directed
verdict on the negligence issue. The Court of Appeals held as follows:
1. The jury could properly have found that an express
warranty existed.
2. It was error to instruct on an implied warranty for a
particular result in the professional services contract area. As the jury was
instructed on both express and implied warranty theories, the Court of Appeals
could not determine if the jury granted relief upon an improper theory.
Accordingly, the cause was remanded for a new trial on the express warranty
issue.
3. The directed verdict was proper since the common knowledge
exception does not apply under the facts of this case.
Toppino v. Herhahn,
22 SBB 664 (Ct. App.1983). We granted certiorari and hereby affirm the decision
of the Court of Appeals as to the first two issues and reverse as to the third.
{2} Mrs. Toppino brought suit
against Dr. Herhahn in January of 1980 to recover damages she claimed as a
result of five surgical procedures in which Dr. Herhahn attempted to
reconstruct her right breast which had been surgically removed by another
doctor in treating a cancer. The first surgeon, who performed the modified
radical mastectomy, discussed reconstruction of the breast with Mrs. Toppino
and recommended that Dr. Herhahn do the reconstruction. Dr. Herhahn works as a
board-certified specialist in plastic and reconstructive surgery.
{3} The first reconstructive
surgery was performed on September 16, 1976. Dr. Herhahn attempted to place an
implant the size and volume of the removed breast on Mrs. Toppino's right side
across from the healthy breast. Mrs. Toppino described the implant as
"over two inches higher than * * * my left breast" and "very
small compared to my left side." Dr. Herhahn admitted that the first
operation did not reach the desired results and concurred in the decision to
have a secondary placement to lower and enlarge the implant.
{4} The second operation,
performed on November 1, 1976, resulted in a larger and lower implant but it
was compressed and flattened in appearance. Dr. Herhahn informed Mrs. Toppino
that he could improve this result and it was decided that a teardrop-shaped
implant should be used. According to Dr. Herhahn, the only other alternative
available to Mrs. Toppino was to do nothing at all.
{5} Mrs. Toppino had a third
surgery on January 31, 1977, and both the doctor and patient were initially
satisfied with the implant, but in the month following the surgery Mrs. Toppino
experienced discomfort from tight skin which Dr. Herhahn diagnosed as a build
up of scar tissue.
{6} On February 25, 1977, Dr.
Herhahn operated a fourth time on Mrs. Toppino to relieve the compression
against the skin. The implant ruptured in the process of reinsertion and Dr.
Herhahn was required to call his office to have stock brought to the hospital
to replace the teardrop implant. Dr Herhahn substituted a round implant for the
implant that had ruptured, but this fourth implant drifted and proved to be
unsatisfactory.
{7} In the fifth surgery, on
June 15, 1977, Dr. Herhahn again used a teardrop implant. While still in the
operating room Mrs. Toppino expressed dismay with the results, but Dr. Herhahn,
under questioning, stated that he was satisfied with the results at the time
although "the implant was slightly lower than I would say would be
ideal." Dr. Gooding, who performed reconstructive surgery to Mrs. Toppino's
satisfaction following Dr. Herhahn's fifth attempt, apparently told Dr. Herhahn
that the fifth implant was low and to the outside and testified that he
"wouldn't call it a good result."
{8} Mrs. Toppino's sister and
a neighbor also testified as to the appearance of the prosthesis after Dr.
Herhahn's fifth surgery. Mrs. Fitzmaurice, Mrs. Toppino's sister, testified
that she observed Eloisa LaRosa, a neighbor, take pictures of the prosthesis in
June, 1977. Mrs. Fitzmaurice described the breast implant as follows:
I guess the best thing I can say is that it wasn't where you
would have expected {*567} it to be. It
was lower, considerably lower than the... all the way over to the side and
down. It was in a position where -- and it didn't look like what you would expect
if someone was putting an implant in, and it was going to be at least in the
general vicinity of where it was supposed to be. Where it was, there's no way I
don't think that you can have put on a regular bra. I mean, it was that far
distorted * * * * [T]here was some form there, but it was more the idea of it
being so far over and so far down and not shaped anywhere like a normal breast.
{9} Eloisa LaRosa testified
that she is a registered nurse and in June, 1977, she lived in the same
condominium complex as Mrs. Toppino. She took pictures of Mrs. Toppino's breast
and described what she observed:
"Well, it didn't take a medical person to see that
something was definitely wrong. This glob was down and over almost under her
arm and it was just out like this * * * * [I]t was nowhere near where the
breast should be."
{10} The pictures were not
available for the jury to examine. The insurance agent for the New Mexico
Physicians' Mutual Liability Company testified that the six snapshots were
stolen from the back seat of his car when he went to the professional building
near Presbyterian Hospital to pick up Dr. Herhahn for lunch. The agent
testified that the pictures were inside a box and that nothing else was taken
from his car.
{11} Dr. Gooding, also a board-certified
plastic surgeon, testified that he could not say that Dr. Herhahn was negligent
or deviated from acceptable standards of care, stating, "[W]hat he did
certainly was within the realm of what we do in our field and in an attempt to
correct the problem that's occurred."
{12} At the close of the
plaintiff's case the trial court granted the defendant's motion for a directed
verdict on the issue of negligence because the plaintiff had failed to produce
expert testimony that Dr. Herhahn had deviated from acceptable standards of
medical practice. The plaintiff, in her cross appeal, challenges the granting
of a directed verdict on the issue of medical malpractice.
{13} "[D]irected
verdicts are not favored and should be granted only when the jury could not
reasonably and legally reach any other conclusion."
Strickland v.
Roosevelt County Rural Electric Cooperative, 94 N.M. 459, 463,
612 P.2d
689, 693 (Ct. App.1980). In reviewing the evidence on appeal from a judgment
entered pursuant to a directed verdict, the appellate court must accept a
reasonable interpretation of the evidence that is most favorable to the party
resisting the motion.
Skyhook Corp. v. Jasper, 90 N.M. 143,
560 P.2d 934
(1977).
It is not mandatory in every case that negligence of the
doctor be proved by expert testimony which shows a departure from reasonable
standards of care. Negligence of a doctor in a procedure which is peculiarly
within the knowledge of doctors, and in which a layman would be presumed to be
uninformed, would demand medical testimony as to the standard of care. However,
if negligence can be determined by resort to common knowledge ordinarily
possessed by an average person, expert testimony as to standards of care is not
essential.
Id. at 758, 568 P.2d at 594.
{15} In this case the jury
would not have had to make medical determinations regarding the surgical
procedures and techniques employed by Dr. Herhahn. Certainly it is within the
realm of the common knowledge of the average person that a
{*568}
breast implant should balance its healthy counterpart in size and location.
The repeated misplacement of an implant, laterally and vertically, the
miscalculation as to its proper size, and the successful results obtained by
another surgeon after only one surgical procedure (
See, e.g., Bradshaw v.
Wilson, 87 Ohio App. 319, 94 N.E.2d 706 (1950)) are facts that, while not
conclusive of negligence, raise inferences of negligence that should properly
be resolved by a jury.
Cf. Eis v. Chesnut, 96 N.M. 45,
627 P.2d 1244
(Ct. App.1981) (holding that the facts presented by the plaintiff in a medical
malpractice suit raised logical inferences of the doctor's negligence that were
not overcome by expert testimony of non-negligence and which therefore
precluded a summary judgment). The trial court erred in directing a verdict for
the defendant on the issue of negligence.
{16} In her petition for a
writ of certiorari, Mrs. Toppino argues that the trial court erred in barring
testimony of Dr. Gooding's bias. Because we reverse the directed verdict and
remand the cause for a new trial on the issue of medical malpractice as well as
express warranty, we do not reach the issue of the doctor's alleged bias.
{17} For the foregoing
reasons the Court of Appeals is affirmed as to the first two issues of
warranties and is reversed as to its affirmance of the trial court's granting
of a directed verdict. The cause is therefore remanded to the trial court for
further proceedings consistent with this opinion.
WE CONCUR: H. VERN PAYNE, Chief Justice, WILLIAM R. FEDERICI,
Justice, WILLIAM RIORDAN, Justice, and HARRY E. STOWERS, JR., Justice.