This is an appeal from a judgment awarding damages for injuries allegedly resulting from malpractice. The action was orginally brought by Los Alamos Medical Center, Inc. against appellee, Joseph S. Coe, on account. On motion, appellee Jean S. Coe, his wife, was made a cross complainant, and appellant and Dr. Roscoe S. Wilcox were made cross-defendants. The account was not disputed and judgment was rendered accordingly. By counterclaim appellees alleged that the Medical Center, through its employees Dr. Wilcox and appellant Behney, negligently administered and prescribed morphine for self-administration without supervision in such amounts and frequency as to cause her addiction. It is alleged that as a result of her addiction, her health was greatly impaired and that she suffered great pain in effecting a "withdrawal." They seek damages for such wrongful acts. The husband seeks consequential damages for loss of consortium of his wife and for medical expenses in a separate amount. The cross-defendants filed separate answers denying her addiction and their negligence as a cause thereof. Dr. Behney further alleges that all morphine prescribed or administered by him was made upon the insistent demands of appellees after having warned them of the dangers incident to the use of such drug; that if he were negligent, the Coes were guilty of contributory negligence as a proximate cause of the alleged injuries. Dr. Wilcox, and likewise the Medical Center, urged the same defenses as Dr. Behney. The Medical Center as a further defense pleaded immunity from liability by reason of being a non-profit corporation, engaged in the operation of a hospital and medical center for the purpose of providing medical, dental and hospital services and care without profit. At the close of the evidence, the cause was dismissed as to Dr. Wilcox. The issues were submitted to a jury which returned its verdict in favor of the Medical Center, and awarded both compensatory and punitive damages against Dr. Behney. Judgment was entered on the verdict and Dr. Behney brings the judgment here for review.
The main question is the sufficiency of the evidence to sustain the verdict. In this regard, all conflicts in the evidence must be resolved in favor of the successful party and all reasonable inferences indulged in to support the judgment, and all evidence and inferences to the contrary must be disregarded. Little v. Johnson, 56 N.M. 232, 242 P.2d 1000. Mrs. Coe was admitted to the hospital on several occasions. On March 28, 1950, she was admitted for dilation and curettage. She again entered the hospital April 16, 1950 for similar treatment. On June 6, 1950, she was admitted for a major operation, separation of adhesions and supra-vaginal hysterectomy. The latter operation was performed by appellant. Subsequently, on June 13, 1950, she entered the hospital for removal of intestinal obstructions and was finally discharged therefrom July 15, 1950. During all this time she received narcotics in some form or another. It seems Dr. Behney did not perform the latter operation, nevertheless, Mrs. Coe again became his patient on July 25 and remained such until November 3, 1950, at which time she went to Los Angeles, California and entered the Good Samaritan Hospital in Los Angeles, California, where she was diagnosed as a morphine addict after surgery. The amount, kind and quantity of narcotics prescribed and used by Mrs. Coe as shown by the hospital records is as follows:
"DATE DRUG DOSE QUANTITY DOCTOR --------------------------------------------------------------------------- 3-28-50 Demerol .05 12 Shafer 4-4-50 " .05 3 Behney 4-8-50 4-14-50 Codein .061 12 Behney 4-15-50 Demerol .05 3 Behney 4-18-50 M.S. .011 10 Behney 4-18-50 Codein .032 10 Behney 4-21-50 M.S. .011 10 Behney 4-25-50 M.S. .011 12 Behney 4-27-50 " " .011 12 Behney 4-27-50 Demerol .05 30 Behney 5-2-50 M.S. .011 12 Behney 5-24-50 " " .014 6 Shafer 5-26-50 " " .016 6 Hawley 6-6-50 6-13-50 7-22-50 M.S. .008 10 Wilcox 7-28-50 " " .011 20 Behney 8-2-50 " " gr. 1/6 20 Behney 8-5-50 Demerol .05 30 Behney 8-6-50 M.S. gr. 1/6 20 Hawley 8-11-50 " " gr. 1/6 20 Hawley 8-15-50 " " gr. 1/6 15 Hawley 8-17-50 " " .011 20 Behney 8-25-50 " " .011 20 Behney 8-28-50 " " .011 20 Behney 8-28-50 Codein (APC) .032 20 Behney 9-1-50 M.S. .011 20 Behney 9-5-50 " " .011 20 Behney 9-5-50 Codein (APC) .032 30 Behney 9-8-50 M.S. .011 20 Behney 9-12-50 " " .011 20 Behney 9-20-50 " " .011 20 Behney 9-23-50 " " .011 20 Behney 9-27-50 " " .011 20 Behney 9-29-50 M.S. .011 20 Behney 10-2-50 " " .011 20 Behney 10-5-50 " " .011 20 Behney 10-7-50 M.S. Sol. 20cc- .210 Behney 10-12-50 " " 20cc-G.210 Behney 10-16-50 M.S. Sol. 20cc- .200 Behney 10-18-50 " " 20cc- .194 Behney 10-23-50 " " 20cc- .194 Behney 10-26-50 " " 20cc- .194 Behney 10-27-50 " " 20cc- .194 Behney 10-31-50 " " 20cc- .194 Behney"
As previously stated, Mrs. Coe became Dr. Behney's patient on July 25, 1950, the date she was discharged from the Medical Center. After returning to her home she began to complain of severe pains and appellees consulted Dr. Behney about self-administration of narcotics at home and this was agreeable to Dr. Behney. The husband, son, daughter, son-in-law, and Mrs. Coe herself, all administered morphine to her
The allowance of punitive damages is assigned as error. The rule in this regard is found at 41 Am.Jur. (Physicians & Surgeons) § 134, as follows:
Also see 70 C.J.S., Physicians and Surgeons, § 67, which reads:
The Coes themselves were apprehensive and discussed the possibility of addiction with appellant and he assured them that they had no cause for alarm as her pain was so severe that it would counteract the effect of the morphine. He was thus put on notice but remained indifferent as to the harmful results which followed. We think this evidence was sufficient to take that issue to the jury.
Mrs. Coe's deposition was taken December 18, 1951, in which she stated that she felt she became an addict while in the hospital, the latter part of June or the first part of July, 1950. Appellant excepted to all testimony concerning the use of morphine by her subsequent to that date, claiming she is bound by her answer. There is no merit to this contention. Both Dr. Norris and Dr. Cornish testified that a person could not testify with any degree of certainty when he becomes an addict. The testimony of the medical experts on the subject should be controlling.
Appellant seriously questions the qualifications of Dr. Norris and Dr. Cornish
Specialists in drug addiction testified on behalf of appellant to the effect that the quantity of drugs shown to have been administered to Mrs. Coe could not result in addiction and that the withdrawal of a true addict could not be accomplished within the short time required for withdrawal by Mrs. Coe. We have already held that the expert testimony of Dr. Norris and Dr. Cornish, expressing a different view, was admissible. Under these circumstances, it was within the province of the jury to evaluate and choose between the views of the experts on this question, and we are not in a position to disturb the jury's finding of addiction.
Appellant urges that appellees are guilty of contributory negligence and assumed the risk incident to the use of the morphine by them. We find the rule stated thusly at 41 Am.Jur. (Physicians & Surgeons) § 80:
The evidence is clear that Mrs. Coe in order to get a prescription, frequently complained of pain when no pain was present. She testified she used it at the last for the jitters and for nervousness, at other times just to feel good. But being fearful of its harmful effects, appellees contacted appellant as to the consequences of using too much morphine and were told by him not to worry in this regard as Mrs. Coe was improving physically and that she could be given morphine whenever she felt the need of it. Appellees testified they relied upon the instructions of appellant in this regard. Obviously they had a right to rely upon his superior knowledge.
In King v. Solomon, 323 Mass. 326, 81 N.E.2d 838, 840, 8 A.L.R.2d 1, that court disposed of a similar contention in the following language:
In Kelly v. Carroll, 36 Wn.2d 482, 219 P.2d 79, 90, 19 A.L.R.2d 1174, in the course of the opinion the court said:
Appellant assigns error in the instructions given the jury and the refusal of certain tendered instructions. We find no merit to the claim of error. The instructions given, when taken as a whole, fairly present the law of the case to the jury.
There is another phase of the case. Appellees cross-appealed on the ground the court committed error in its instruction with regard to the immunity of the Medical Center. The jury was instructed that if it should find that the Medical Center was a non-profit corporation and there had been no distribution of profits derived from its operation or from the medical services furnished by it, the Medical Center was not liable for the acts of its agent, Dr. Behney. The objection to the instruction is in the following language:
Thus, it will be seen that the question now raised was not presented to the trial court for determination, that is, whether charitable corporations are liable for the torts of their agents. The objection concedes that if the Medical Center was a charitable institution and operating as such, the instruction is proper. There is no dispute in the testimony that the institution does not distribute profits derived from its operation to any person. Its articles of incorporation provide "This corporation is organized exclusively for charitable, scientific and educational purposes as a non-for-profit corporation
The judgment will be affirmed with direction to the lower court to enter judgment against appellant and the surety upon his supersedeas bond, and it is so ordered.
McGHEE, C.J., and SADLER, LUJAN and SEYMOUR, JJ., concur.