James A. Truan v. Terry K. Smith and Roy

COOPER, Justice OPINION ON PETITION TO REHEAR. Dr. James A. Truan has filed a petition to rehear taking issue with this court's holding that the evidence supports the jury's finding that petitioner was guilty of malpractice which proximately caused or accelerated the death of Mrs. Smith. Petitioner's attack on the holding is two pronged. First, petitioner insists the Court of Appeals exonerated him of negligence in the treatment of Mrs. Smith up to and including May 6, 1974, and, absent an assignment of error by respondent directed to this holding, this court is limited to consideration of evidence of negligence from and after May 6, 1974. Second, petitioner insists there is no material evidence to support a finding that the activities after May 6, 1974, proximately caused or proximately contributed to respondent's damages. Both of these issues were considered by this court in affirming the judgment of the Court of Appeals, and were decided adversely to petitioner. In our opinion, the petition and briefs filed in this court -- as did the assignments of error in the Court of Appeals - fairly presented the issue: Does the record contain evidence of malpractice on the part of petitioner which proximately caused or accelerated the death of Mrs. Smith? Of necessity, the resolution of the issue required this court to review all evidence, not just the evidence the Court of Appeals concluded supported the jury's verdict. On doing so, we found ourselves in agreement with the Court of Appeals that the jury reasonably could conclude from the evidence that petitioner was guilty of actionable negligence in failing to follow his patient through and after the period of observation prescribed by him at the time of the May 6th examination. We also concluded that the evidence of treatment prior to May 6th, 1974, detailed in the opinion of the court, would support the jury's finding that Dr. Truan did not exercise that degree of care and diligence required of him in providing medical care to Mrs. Smith and that his failure to do so either materially increased the chances of or accelerated Mrs. Smith's death. We still are of the opinion that there is material evidence in the record to support the jury's finding that Dr. Truan was guilty of malpractice which proximately caused or accelerated the death of Mrs. Smith.