Haney v. DeSandre

George Rose Smith, Justice. This is a medical malpractice action against Dr. F.A. DeSandre, a specialist in obstetrics and gynecology. Dr. DeSandre performed a hysterectomy on the plaintiff, Sheila Haney, on August 20,1980, and in the course of the operation discovered a fetus that appeared to be from one to two weeks old. It was then too late to discontinue the surgery. The complaint was based primarily on the ground that Dr. DeSandre should have tested the patient for pregnancy before the operation. The jury verdict was for the defendant. On appeal, errors in the admission of evidence and in the refusal of an instruction are argued as a basis for reversal. The appeal comes to this court as a tort case. Rule 29(1 )(o). At the outset the appellee argues that the asserted errors are immaterial, because the court should have directed a verdict for the defendant. The premise for the appellee’s argument is that Act 709 of 1979 (Ark. Stat. Ann. §§,34-2613 to -2620 [Supp. 1983]) is said to put the burden on theplaintiff to prove by expert testimony that the doctor failed to meet the degree of skill ordinarily used by other doctors in the locality or in a similar locality. Inasmuch as the plaintiff rested her case without producing such expert testimony, it is argued that the defendant was entitled to a directed verdict. There are two obstacles to our reaching this argument on its merits. First, the appellee did not stand on his motion for a directed verdict at the close of the plaintiff’s proof. Instead, he chose to introduce testimony tending to show that doctors do not routinely order pregnancy tests before performing a hysterectomy. The appellee waived his motion by not electing to stand on it. Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963). The defense proof was not conclusive, because it established a negative at most, that tests are not routinely ordered. This case may not have been routine. Dr. DeSandre assumed that Mrs. Haney had not missed a menstrual period, put the proof is that periods ordinarily occur every 28 to 30 days. Dr. DeSandre knew that his patient’s last preceding period had begun the 36th day before the operation. The point' is not controlled by Sexton v. St. Paul Fire & Marine Ins. Co., 275 Ark. 361, 631 S.W. 2d 270 (1982), for there the issue was beyond the common knowledge of the jury. Here that may not be true. See Jarboe v. Harting, 397 S.W. 2d 775 (Ky. 1965). In the second place, the statute does not expressly state that every plaintiff in a malpractice case must find a doctor willing to testify against a fellow doctor. Such a requirement might subject the validity of the statute to serious doubt, as being special or class legislation. The appellant, however, has not raised the constitutional question, and we adhere to our settled practice of not deciding such a question without its having been properly raised and argued. Until that issue is settled, we cannot assume that the posture of the case at a second trial will be the same as that now before us. Since the appellee was not entitled to a directed verdict at the close of all the proof, we turn to the appellant’s two points for reversal. Both have merit. First, Dr. Cole, testifying as an expert for the defense, was permitted on direct examination to bolster his testimony by producing an authoritative treatise on gynecology and testifying that nowhere in the book “does it state that you should order routinely a pregnancy test prior to a hysterectomy.” The negative is again being invoked to prove a positive. Uniform Evidence Rule 803 (18) permits statements from learned treatises to be read into evidence if relied upon by an expert witness. There was no statement one way or the other in the book. A failure to say that a test should be routinely ordered does not mean that it should not be ordered in the circumstances confronting Dr. DeSandre. Second, the court refused to give AMI 102, which tells the jury they may consider the evidence in the light of their common knowledge, observations, and experiences in the affairs of life. AMI Civil (2d), 102 (1974). The Note on Use says not to use the instruction when AMI 1501 is given. Only the first paragraph of AMI 1501 was given. The Note on Use to AMI 1501 explains that if its second paragraph, restricting the jury’s consideration to the expert testimony, is given, AMI 102 should not be used. Here the second paragraph of AMI 1501 was not given; so the court was free to give AMI 102. In a case of this kind we think the instruction to be especially pertinent, for it assures the jury that they may use common sense in considering whether the defendant was negligent. Reversed.