Gross v. Partlow

STEINERT, C.J., TOLMAN, GERAGHTY, and BEALS, JJ., dissent. This action was brought to recover against the defendant, a physician and surgeon practicing in Olympia, this state, to recover damages for claimed malpractice. The defendant denied liability, and pleaded affirmatively that the plaintiff had failed to follow directions in the care of himself. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiff in the sum of ten thousand dollars. The defendant moved for judgment notwithstanding the verdict and also for a new trial. The motion for new trial was overruled, and the motion for judgment notwithstanding the verdict was granted. From the judgment entered dismissing the action, the plaintiff appeals.

December 13, 1932, the appellant, while engaged at work, was seized with severe pains in his abdomen. The respondent was called as the appellant's private physician. The appellant was removed to St. Peter's Hospital, where the respondent made a tentative diagnosis. The following day, or December 14th, the appellant's condition having become more acute, an exploratory operation was performed at the hospital by the respondent, two other doctors assisting. After the incision was made, it was ascertained that there was an adhesion of the bowels which had caused an obstruction. These adhesions were removed, the bowel straightened, and the wound closed.

The testimony as to the condition at the time of the operation is in dispute, one doctor testifying that there was no infection and no drainage was allowed to remain. The respondent and the other doctor testified that there was infection and drains were necessary.

Subsequent to the operation, the appellant suffered the ordinary post-operative nausea. Several days afterwards, however, he began to throw up matter different in character. This is described in the medical testimony as "fecal" matter and indicated that it was coming from the lower bowels. This condition continued for seventeen or eighteen days after the operation, when one of the intestines ruptured and through this rupture the contents of the bowels and stomach forced their way through the incision, and in the region of the navel, which was at the upper end of the incision, there was created an opening which is termed a "fistula." Thereafter, the contents of the bowels discharged through this fistula.

The appellant remained in the hospital under the care of the respondent until approximately the 17th day of January, when he left. As to whether he left with or without the consent of his attending physician, there is a dispute. Thereafter, the doctor visited him at his home near the city of Olympia, on several occasions over a period of about three weeks, and subsequently ceased the visits. The evidence is in dispute as to whether the visits were discontinued by the doctor, or whether the appellant desired such discontinuance and had discharged the respondent. Thereafter, for a period of about two years, the appellant continued to reside on his farm, the fistula condition continuing, and all the discharge from the bowels, which would ordinarily pass out through the rectum, passed through the fistula.

At the end of about two years, the appellant was operated upon in the city of Centralia by another doctor, and at this time there was an obstruction in the bowels where the previous operation had been performed. As to whether, after the operation performed by the respondent and while the appellant was in the hospital, there developed an obstruction in the bowels or a paralysis which forced the fecal matter out through the fistula, the evidence is in dispute. After the operation at Centralia, which was successful, the fistula was healed and the movements of the bowels took place in the ordinary way. Subsequently, the present action was brought for the purpose above stated.

The principal question presented upon the appeal is whether the evidence was sufficient to take the question of the respondent's negligence to the jury.

[1] It is a settled rule that a motion for judgment notwithstanding the verdict calls for the exercise of no discretion on the part of the court, and can only be granted when there is no evidence and no reasonable inference from evidence to go to the jury. Hopkins v. Lotus Cafe, Inc., 161 Wn. 493,297 P. 178. That rule is applicable in malpractice cases as well as others. Stickney v. Congdon, 140 Wn. 670, 250 P. 32;Samuelson v. Taylor, 160 Wn. 369, 295 P. 113; Sears v.Lydon, 169 Wn. 92, 13 P.2d 475.

[2] Inquiry will then be directed as to whether there was any evidence or reasonable inference from evidence which would take the case to the jury. From the evidence, the jury had a right to find that, at the time of the operation, there was no infection; that, some days after the operation, there was an obstruction in the bowels; that the appellant was discharged from the hospital prior to the time his condition justified such discharge; that the respondent ceased to treat the appellant after the latter had returned to his home at a time when he needed further medical attention. In addition to this, the fact that a subsequent operation was necessary, while not sufficient in itself to take the case to the jury, was some evidence of negligence. Cornwell v. Sleicher, 119 Wn. 573, 205 P. 1059; Howatt v. Cartwright, 128 Wn. 343, 222 P. 496.

A physician or surgeon who undertakes an operation upon a patient is not justified, after such operation, in ceasing to attend the patient while further care and treatment are necessary. Huber v. Hamley, 122 Wn. 511, 210 P. 769;Prather v. Downs, 164 Wn. 427, 2 P.2d 709. There are instances where facts alone prove the negligence, and where it is unnecessary to have the opinions of persons skilled in the particular science to show unskilled and negligent treatment.Cornwell v. Sleicher, 119 Wn. 573, 205 P. 1059.

It is not necessary that a case of malpractice be proved by direct and positive evidence, and it may be proved by a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable. Helland v.Bridenstine, 55 Wn. 470, 104 P. 626; Jordan v. Skinner,187 Wn. 617, 60 P.2d 697. From the facts stated, which the jury had a right to find, there is created a chain of circumstances from which the jury had a right to infer negligence.

We have not overlooked the rule that, where, upon a given state of facts, physicians and surgeons of equal skill and learning disagree in their opinions as to what the proper treatment should have been, there is no question for the jury. It is enough if the treatment actually employed had the approval of at least a respectable minority of the medical profession and is recognized by such as a proper method. Dahl v. Wagner, 87 Wn. 492,151 P. 1079; Howatt v. Cartwright, 128 Wn. 343,222 P. 496. But that rule is not applicable to disputed questions of fact such as appear in this case. The facts in the case here presented, which the jury had a right to find, are more persuasive in establishing negligence than they were in the case of Jordan v. Skinner, 187 Wn. 617,60 P.2d 697, where it was held that the question was one for the jury.

The case of Dishman v. Northern Pac. Beneficial Ass'n,96 Wn. 182, 164 P. 943, is upon different facts, and is not out of harmony with the holding in this case.

The trial court erred in granting the motion for judgment notwithstanding the verdict.

Upon the motion for new trial, little need be said. There are a number of contentions, briefly presented, without citation of authority, all of which we have considered, and in none of them do we find substantial merit. The motion for new trial was properly overruled.

The judgment appealed from will be reversed, and the cause remanded with direction to the superior court to enter a judgment upon the verdict.

HOLCOMB, MILLARD, BLAKE, and ROBINSON, JJ., concur.