Atkins v. Clein

As I view this case, the evidence produced at the trial was not sufficient to permit a verdict for respondents. For this reason, questions relative to whether there was error in the instructions given are not controlling in the disposition of this appeal.

In the following cases, we held that, if the evidence did not disclose facts sufficient to support a verdict for the proponent of the motion, it was error for the trial court to grant a new trial for irregularities committed in submitting the case to the jury: Grass v. Seattle, 100 Wn. 542, 171 P. 533; Adams v.Anderson Middleton Lumber Co., 124 Wn. 356, 214 P. 835;127 Wn. 678, 221 P. 993; Humphreys v. Seattle, 152 Wn. 339,227 P. 834, 281 P. 994; Thornton v. Eneroth, 177 Wn. 1,30 P.2d 951.

Before undertaking an examination of the evidence upon which the majority relies, as bearing upon the issue of appellants' negligence, it seems appropriate to recall several legal principles relating to the duties imposed upon members of the medical profession.

A physician or surgeon is not required to exercise the highest degree of learning, care, and skill in the treatment of his patients. Negligence of a physician or surgeon is the failure to exercise that degree of care, diligence, and skill which is ordinarily possessed and exercised by members of the medical profession in the same line of practice in the same or a similar locality. Kemp v. McGillivray, 129 Wn. 592, 225 P. 631;Hollis v. Ahlquist, 142 Wn. 33, 251 P. 871; Peterson v.Hunt, 197 Wn. 255, 84 P.2d 999; 48 C.J. 1113, § 101; 21 R.C.L. 381, § 27.

A specialist is not held to the exercise of a greater degree of care in the diagnosis or treatment of a particular organ, injury, disease, or group of people than that ordinarily possessed and exercised by those who devote special study and attention to that restricted field of medical practice in the same or a similar locality, having regard to the state of scientific knowledge at the time. Beach v. Chollett, 31 Ohio App. 8, 166 N.E. 145;Pantazatos v. Jelm, 17 Ohio App. 258; Baker v. Hancock,29 Ind. App. 456, 63 N.E. 323, 64 N.E. 38; Rann v. Twitchell,82 Vt. 79, 71 A. 1045, 20 L.R.A. (N.S.) 1030.

The law does not hold that physicians guarantee results, nor does it require that the result be what is desired. Williams v.Wurdemann, 71 Wn. 390, 128 P. 639; Lorenz v. Booth,84 Wn. 550, 147 P. 31; Hollis v. Ahlquist, supra; Brant v.Sweet Clinic, 167 Wn. 166, 8 P.2d 972; Barker v. Weeks,182 Wn. 384, 47 P.2d 1.

A physician does not incur liability for his mistakes if he has used methods recognized and approved by those reasonably skilled in the profession. Wells v. Ferry-Baker Lumber Co., 57 Wn. 658,107 P. 869, 29 L.R.A. (N.S.) 426. This rule should also apply to specialists. They should be held to the use of methods and to the application of that degree of skill, learning, and care which is recognized and approved by fellow specialists.

As a general rule, questions involving scientific or medical knowledge must be determined by experts. Dahl v. Wagner,87 Wn. 492, 151 P. 1079; Dishman v. Northern Pac. Ben. Ass'n,96 Wn. 182, 164 P. 943; Howatt v. Cartwright, 128 Wn. 343,222 P. 496; Brear v. Sweet, 155 Wn. 474, 284 P. 803;Boyce v. Brown, 51 Ariz. 416, 77 P.2d 455.

"Ordinarily, where the exercise of proper skill or care on the part of a physician or surgeon is in issue, expert medical testimony is essential. The reason is that in most cases a layman can have no knowledge whether the proper treatment was given." 48 C.J. 1150, § 157.

The supreme court of Arizona in Boyce v. Brown, supra, laid down definite rules as to what expert testimony must show in order to establish negligence:

"There are certain general rules of law governing actions of malpractice, which are almost universally accepted by the courts, and which are applicable to the present situation. We state them as follows: (1) One licensed to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession in good standing in the community in which he practices, and to apply that skill and learning, with ordinary and reasonable care, to cases which come to him for treatment. If he does not possess the requisite skill and learning, or if he does not apply it, he is guilty of malpractice. Butler v. Rule, 29 Ariz. 405, 242 P. 436. (2) Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient which the recognized standard of good medical practice in the community in which he is practicing forbids in such cases, or he must have neglected to do something which such standard requires. 48 C.J. 1112, and cases cited. (3) In order to sustain a verdict for the plaintiffs in an action for malpractice, the standard of medical practice in the community must be shown by affirmative evidence, and, unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the required standard is, or whether the defendant has departed therefrom. Butler v. Rule, supra; Rising v. Veatch, 117 Cal.App. 404,3 P.2d 1023; Connelly v. Cone, 205 Mo. App. 395,224 S.W. 1011. (4) Negligence on the part of a physician or surgeon in the treatment of a case is never presumed, but must be affirmatively proven, and no presumption of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best results, or that the patient died. 48 C.J. 1142, 1143, and cases cited. (5) The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the proper standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Herzog, Medical Jurisprudence, § 192; Butler v. Rule, 33 Ariz. 460, 265 P. 757; 48 C.J. 1150, and cases cited. (6) The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated from one of the methods of treatment approved by the standard in that community. Hazen v. Mullen, 32 F.2d 394,59 App. D.C. 3."

The position taken by the majority — that evidence was adduced sufficient to warrant a verdict for respondents upon the issue of malpractice — is based squarely upon testimony of Mr. and Mrs. Atkins to the effect that Dr. Clein made this statement:

"I said that is a kind of silly statement, because if he had a temperature of 104 and somebody said he wasn't sick, I would think he was crazy. That is my opinion as a medical man."

Considered in the light of the rules which have just been stated, the evidence upon which the majority relies did not warrant a finding by the jury that appellants were guilty of malpractice. No evidence was introduced which established, or tended to establish, the usual methods pursued by specialists, or by regular physicians, in Seattle or similar communities. The record discloses nothing which shows what was the recognized treatment of patients having the symptoms displayed by respondents' child. There is nothing in the evidence which establishes directly or by inference that appellants failed in any particular to do all those things which are required of a child specialist. Without such evidence, there was nothing for the jury to consider.

The burden was upon respondents to prove by competent expert witnesses all of the elements of negligence with which appellants are charged. Implicit within this rule is the requirement that the applicable standard of care and the determination of what are the approved methods of diagnosis and treatment must be established by experts whose practice is similar to that of those charged with malpractice. The doctor who made the statement to Mrs. Atkins that earlier hospitalization would have saved the child, or that doctors specializing in children's diseases would have sent it to the hospital sooner than did appellants, was not a child specialist. The statement attributed to him can be regarded as nothing more than speculation.

As I view the evidence and the principles of law which must be applied, respondents proved no more than that unfortunate consequences attended the treatment given by appellants.

Judgment should be entered upon the verdict of the jury.

ON REHEARING. [En Banc. July 18, 1940.] PER CURIAM.

Upon a rehearing En Banc, a majority of the court adheres to the opinion heretofore filed herein.

BEALS, J., concurs in the result.