*1 29608. En Banc. November [No. 1945.] Harry Fritz, v. Frank L. Respondent, Horsfall,
Appellant.1 (2d) 1 Reported 163 P. 148.
Robert S. Terhune and Truscott & Bovingdon, appel- for lant. F.
George Hannan, for respondent. J. This action was to recover brought damages Simpson, for The case tried to a court re- malpractice. and jury sulted in a verdict in favor of the defendant. plaintiff presented motion for a new trial upon
several The motion grounds. granted by general order, without giving any reasons therefor. De- fendant has from the order appealed to which have just we referred and as error assigns granting plaintiff’s motion for a new trial. granting order
The rule in cases which those upon grounds general specify the trial and does not new court it rested not be disturbed which was will to war it that the evidence was not sufficient unless finds jury. submitting The rule case to the rant court Henry excerpt following Larsen, v. stated in the is well (2d) (2d) 841: 690, P. 19 Wn. granting for a trial the order the motion new “Where ground grounds upon
general specify and does inquiry based, our is limited determina- which was question tion of the the evidence sufficient whether Telegraph jury. Co., to take the case to the Hobba v. Postal say p. (2d) can in such case ante 141P. 648. Unless we only jury was, law, that the as matter of verdict granting a rendered, verdict that new could be the order trial must affirmed.” necessary
Under to examine the the above rule it becomes statement of facts exhibits admitted numerous *3 doing necessary give evidence. In so to full credit it will to the reasonable evidence favorable to inferences to be deduced therefrom. referring facts, however, it seems
Before to general governing set out certain rules law advisable to universally malpractice are ac actions for almost which by pres cepted applicable the courts and which (1) follows: An ent situation. We set them out as presumed practice individual licensed to medicine learning possessed possess degree of skill which community by profession average in the member of applied practices, that he that skill has which ordinary learning those and reasonable care to with (2) The contract him for treatment. who come physician employment implies or sur- from the the law patient dili- treat geon the doctor will his is that Sawdey Spokane just v. Falls mentioned. gence and skill (3) Pac. Am. 349, 972, 70 94 St. 880. 30 Wash. Co., N. R. & , liability for his if he has used incur mistakes does reasonably approved by recognized those methods Ferry-Baker profession. Co., Wells v. Lbr. skilled (N.S.) 29 L. 869, 426; Pac. R. A. Peddi- 658, 107 57 Wash.
17 (2d) (4) (2d) cord v. 5 Before Lieser, Wn. 105 P. 5. 190, physician surgeon malpractice, or can be held liable for something pa- he must have done in the treatment of his recognized practice tient which the standard of medical community neg- his forbids in cases, such or he must have something required by lected to do 48 those standards. (5) judgment against J.C. 112. In order to sustain physician surgeon, practice or standard of medical community must be shown, and, further, that the doctor prescribed by failed to follow the methods that standard. (6) required physicians surgeons guar- It is not antee results, nor that the desired. result be what is Wil- liams v. Wurdemann, 390, 71 Wash. 639; 128 Pac. Lorenz v. Booth, 84 550, Wash. 147 31; Pac. Dishman v. Northern Pac. Ass’n, 96 182, 943; Wash. 164 Pac. Howatt Beneficial Cartwright, v. 343, 128Wash. 222 496; Pac. Barker Weeks, v. (2d) (7) testimony 182 384, Wash. 47 P. 1. of other physicians have would a different followed course treatment than that defendant, followed or a dis- agreement equal learning of doctors of skill and as to what negli- treatment should have been, does not establish gence. In such cases, the court must hold that there is nothing upon jury may pass, which the the reason jury may accept theory that the not be allowed one Cartwright, exclusion of the supra; other. Howatt v. Kemp McGillivray, v. 592, 129 Wash. 631; 225 Pac. Hollis Ahlquist, v. 33, Wash. 871; Pac. Hunt, Peterson v. (2d) (8) Negligence 255, 197 Wash. part 84 P. 999. on the physician surgeon by departure reason of his popular practice from the standard of must be established testimony. medical Wharton v. Warner, 75 Wash. *4 Wagner, 135 235; Pac. Dahl v. 492, 87 Wash. 151 Pac. 1079; supra; Dishman v. Northern Pac. Ass’n, Howatt Beneficial Cartwright, supra; v. Brear v. Sweet, 155 474, Wash. 284 (2d) Pac. 803; Skinner, Jordan v. 617, 187 Wash. 697; 60 P. supra; (2d) Hunt, Peterson v. Hoover v. 2 Goss, 237, Wn. (2d) supra; Wyck- 97 689; Lieser, P. Peddicord v. Crouch v. (2d) (2d) 273, 6 Wn. 107 P. off, 339. The reason is that juries upon must be informed as to the facts or criterion
18
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An layman grossly apparent ligence have that a would is so difficulty recognizing 55 Bridenstine, it. Helland v. no Wurdemann, 71 Wash. 470, 626; 104 Williams v. Pac. Wash. 135 470, 639; Warner, 75 Wash. 390, 128 Pac. Wharton v. Wynne Harvey, 67; 165 Pac. 379, 235; v. Wash. Pac. 135; Jordan v. 506, 170 Pac. Hood, v. 99 Wash. Swanson Wyckojf, (2d) 697; Crouch v. 617, 60 P. Skinner, 187 Wash. supra. give description of proper a time to it at this
deemWe connected there- gall and the ducts location, bladder, its by Medicine edited in Practice of as described with, published in 1944. D., M. Tice, Frederick having thin, pear-shaped a gall sac is “The bladder capacity at- to 50 cc. is of from 30 flaccid wall right liver lobe of the undersurface of the tached lymphatics and rich in tissue network connective a loose small blood incompletely peritoneal sur- A coat vessels. gall the surface and is reflected over rounds the bladder extraperitoneal leaving surface which liver, thus percentage the liver. In a variable relation to in direct gall placed per bladder at 10 cent—the cases—Judd peritoneal completely form- surrounded investment ing mesentery-like According Erdheim, attachment. angulation may loose, leaf-like attachment allow organ may produce predispose stasis to torsion. parts, roughly “The into can two bladder be divided portion is the sac-like fundus and the neck. The fundus the neck which extends and forward downward may may tip beyond liver. The extend the border of the *5 19 completely peritoneal The neck coat. surrounded a gall angle fundus of the and the bladder makes an acute with points upward, forming pouch is known thus a which pouch. cystic as a direct continu- Hartman’s The duct is ation of and to downward, the neck and extends backward Z-shaped length approx- the left to form a contour. Its is imately join may although great It cm., there is variation. angle, practically right
with the common at duct very may along Again case it which the short. follow finally common duct for some distance and communicate angle, forming the latter at a acute a double- gun arrangement. cystic barrel is, The diameter of the duct extrahepatic the rule, ducts, narrowest of the of varying from 2 to 4 mm., and its mucosa is thrown into arrangement, five to twelve folds of a crescentic the valves project of Heister, which into the lumen of duct. the biliary intrahepatic “The ducts unite the within sub- major hepatic stance of the liver ducts, to form the two right and the left. ducts, These two of about equal hepatic size, unite to form the common duct at a junction being location, variable at times the not over 0.5 to 1 cm. their exit from the liver. The common he- patic give duct extends downward and to left to off cystic gall junction duct bladder. From this on- ward it is called the common duct. The common duct is length, from 7 to 8 cm. 4 to 6 mm. in diameter and lies duodenohepatic ligament free border of the in close portal artery. anatomic hepatic relation to the vein and passes descending It passing through portion behind the duodenum, of the groove or furrow in the lateral surface pancreas. Occasionally the terminal end of duct completely pancreas. passes embedded in ob- liquely through empty the wall of the duodenum into papilla. at bowel This terminal end the common physiologic duct is in close anatomic and relation to the major pancreatic may join duct. These ducts form a ampulla empty common through into the bowel frequently they common detail of open separately. orifice; less The peculiarities ranges high junction anatomic from a well-developed ampulla with a which septum arrangement to a prevents any interchange of intraductal contents.” appellant Respondent contacted in 1943, at which time complained Appellant X-ray pic- heartburn. took operation and advised an tures remove the operation performed appendix bladder. Respondent day remained in March, 1943. on the ninth hospital he returned time 30th, until March at which home the of a nurse. While at wound to his home the care part during discharged the .first one time and, bile at *6 by gauze pulled May, piece re- from the a wound was gauze thought spondent’s that His mother mother. piece and It had a odor was a the intestine. bad was discharge to continued and discolored. wound soaked During period July. time, re- the month of until spondent At times he from fever and chills. suffered July, appellant coughed In and bile. and vomited blood opened After each treat- occasions. on several wound part During respondent the last feel better. ment would respondent August, July returned 1943, the first of operation hospital, a was time second at which to days stay performed. in the hos- of seventeen After After pital, to home. and returned his he felt better Appel- respondent run a fever. started to healed wound drainage. The opened further to allow then wound lant deathly “got respondent again sick.” healed and wound Respondent coughed then chills. from and suffered He open hospital. emitted The wound broke to the went again Respondent returned quantity of bile blood. appellant’s office, where and later to home, went to his X-ray picture taken. injection made, and an of fluid was by appellant, re- During as related with a conversation speaking appellant doctors: stated, of other spondent, listen, slip;” “They “Now, I and then said: made told me slip, I I but man make a know can know didn’t.” Mayo respondent clinic at the 1943, arrived 3,
December operation place an was Rochester, Minnesota, at which at by performed Dr. Counseller. the middle of December about discharged performed. post-operation He was was Later a January 1944, re- hospital Rochester, at from respondent returning home, to After his turned to Seattle. recovery.” Later he had road to on the like was “felt respondent on jaundice, Dr. Willis waited chills, and fever. Respondent drug. called then administered sulfa Bannick, Dr. administered sulfadiazine. on who Mayo’s. May, respondent ex- He was In returned by fourth of the third or amined Dr. Counseller. About respondent then suffered June returned to Seattle again journeyed jaundice, fever, and infection. during month, one Rochester, he remained about where operation performed Dr. Coun- time another which was trip September, to the Later, in he made another seller. Mayo days. stayed period ten clinic, for a where he respondent. drainage given At that time a duodenal Returning again, continued to his home jaundice, He then chills, and infection. fever, suffer from hospital attended went to Seattle Swedish after “felt Bannick, Dr. which he somewhat better.” Respondent from Roches- testified after his return that, appellant, in he told ter, he had a conversation Mayo appellant compelled go had been money,” *7 clinic, him and felt which cost “considerable fully appellant help appellant replied, “I should that him; you;” agree help and, “I first I with intend but Mayo verify they clinic and have want write what you.” get Later, and then I in touch he done, will with by appellant, appellant, he, and he told him that called was nothing wrong. done operation, respondent trips to After the first made two Spokane, ways. driving He went his automobile both fishing doing The drain- and in a stream. while so waded age respondent’s trip first from the incision ceased after Mayo clinic. by respondent, just supplied
The facts related his were friendly sister, father, mother, and other wit- wife, his nesses. attorney
Appellant by respondent’s and called was then testified, effect, as follows: physician surgeon practiced
He is has city forty years. graduated at of Seattle for McGill was diagnosis, ray, university. practice The nature of his X many great gall- surgery, performed a and he has eyes, questioned his he operations. about When bladder except that he them no trouble that he had with testified twenty years glasses old. Asked he since was had worn explained glasses, so were his witness about arranged eyelid, slight droop as to accommodate eyesight; anything his do not have but that did vision. have defective did not complained of a first The doctor stated present he was child. since that had been stomach trouble however, diagnosis based, the doctor made was The exam- made. That upon he had examination which patient’s inspection breast, ination consisted X-ray pictures. and means reflexes, abdomen, his his anything in the found ab- Appellant, if he on asked domen, said: deep pressure complaint above on “There was some margin, are attached pressing deeply where the ribs that is where first begins, on that and on
the abdominal wall right upper upper portion abdom- as the is known rigidity; quadrant, is, muscles inal were not there awas they ordinarily flexing seemed, too, do, and it recovery pressure. patient that the had some on throughout the abdomen “On further examination enlarged, but it least was found that the liver was —at position.” enlarged. spleen and in normal in size was respondent’s X-ray pictures stomach were Several gastric in evidence. A by appellant admitted made appellant that re- determined analysis made, and also functioning gall “not spondent’s bladder properly;” suffering condi- colonitis, “a diseased that he was - inflammatory character, of bladder.” tion, appellant specifically, Answering stated: more physical examination, from the whole “I conclude *8 x-ray, laboratory and the examination examination, the gall gentleman a diseased bladder this that concluded and a diseased appendix.” operation description gave the of appellant minute explanations, Laying he de- certain aside 9th. of March following manner: it in the scribed portion up here, before in this to look decide we “When margin up to attempting like liver, lift the the we to definitely gall can visible, if can be we see that bladder yes, back, that . . bladder . The liver is turned so it, look at may exposed. expose gall be You don’t entire by beautifully diagram 17] it [exhibit shows it as as you try you way expose do it. In that means, but they are ducts, and the condition of these when determine operator then in the mind determined it is decided going do. he is what great present “If are a number of adhesions around there cystic they from, ducts, are this duct and other dissected they and that are alluded to blades; are dissected from the same means of scissors heavy they blunt —I mean have as they specially-made are as scissors are known dissecting scissors. thoroughly done, “When that is when dissected duct is lying along
identified; and, are vessels, duct there two cystic artery cystic and the duct. determining you “There are main two methods what ought pursued, to do. There are several methods depending describe the judgment operator, just on the and I will grasp main ones. is to two One one instru- cystic cystic artery ment the duct, the and the vein to- gether forceps. in one bit of the The other tois dissect artery clasp separate from the and the vein and then these and make use the instrument that is that, used for very, very forceps. legs fine Of course there are two only as, to it and it is about fine that, as there are two of going them, like a fine scissors. And that is so that it is injure anything; just picks up, artery. it them vein and really pair they together “Then there are a are —but — you pair forceps. up, if as a known Pick them way, way. you want to do it that If don’t to do it want pick together. artery then duct, can and the vein gall- “I have here two instruments that are known clamps. bladder ... gall operator “Now, take bladder, here is the and the can pleases. high up it where take it can toward Many point go bladder itself, or he can farther down. it hepatic even closer duct, if he wishes. common judgment. That is a matter for his taking placed duct, “Then instrument across artery very commonly up done—the —which placed like that vein. And then the other one is below surgical scalpel, (indicating) sharp then of a means *9 Q. Q. The duct. What is cut? A. it is cut. What knife, clamp. cystic . . I . duct, have A. The where duct? Then when that is operator in his does cut the whatever may judgment this on until leave is at the time. wise gall at the end That is the entire bladder. he removes away from him. lying forceps suppose are across here that these “Well, then, that frees Now are cut between. and and here this gall bladder, it frees this up. but free the It doesn’t cystic cystic duct, The portion Q. duct? A. the duct. talking only portion about. And duct I am of the is why you position, forceps I tell and will is left in the lower gall free bladder is dissected Then the in a few minutes. from its Again, are va- there the liver. bed, its bed up ways doing and dissect it men turn it it. Some rious upwards, from here, it is the bottom down- from here way. picture Or, the other wards, it is the but this frequently made use, a little incision is I method which most again covering gall bladder, is which in that serous sac of the just peritoneum. That is that is as known gall very gently going all, at incised, gall into the bladder layers. bladder has several because guide using dissection, the this to means of blunt “That, gall completely peeled bladder is back when us, is peri- certain circumstances this lifted out. Under freed it is it is and sometimes across. Sometimes toneum is stretched peri- out, is then After the bladder . . . not. it is friable won’t too is closed over. Sometimes toneum go it, in. And much, it stand back but should stand too the ing hope putting purpose avoid- that in there is mean means of adhesions—be- connection—I any portion and this liver bed. When of the bowel tween that is cystic . duct treated. . . diagram, This done, this duct is you down, as to this com- see which travels ligated, only this, I Then that tied from don’t mon duct. way doing again, are, There more than one like term. compress ligature physicians just around that that. Some cystic tie it. That well sometimes. duct and works it doesn’t. Sometimes many years ago figured great I “A that a much wiser , procedure to these since, I and one have carried out ever which gut away ligature place this, throw from comes, forceps. out here. out here comes And there, so that there is no needle needle is unthreaded the and my you got tied. It is habit to tie at the heel have bring my first, then to around in instrument ti.e my ‘ready’ say, ready, again and as front, and to have completed then the tie is taken assistant this is off you pos- tight thing can just as crossed over this about rope sibly pulling you aon it. are not tie Of course trying you trying boat, but are not to anchor way done, it is close this duct. And that is the pursued here. and that is the method operation, that is field of the “When is down to the *10 duct, common bladder, area of the the common carefully hepatic very that to make sure duct are examined hemorrhage everything ought no be; is as it that there is cystic coming as duct, and that there is no bile out of you fairly usually far as can can well be determined —and determine that. following operator again, judgment
“Then, one of the things always of in done and two is done: is one There many up perfectly cases close two. Some men are satisfied to cavity any drainage Now, the abdominal at all. without depends upon put that drains. in two circumstances. Others operative pro- “Now, come we back to this incision. The ready completed in cedure close over this the abdomen is are we is layers. which, remember, five incision “Many operators, infection, in of feel the face certain they put drainage through in the ab- want their many through good dominal wall, that is incision. A great many years of them for a have felt that that was not very procedure; a wise a one. there was better And procedure the reason we do not think it a because wise is produce rup- it weakens the abdominal and tends to wall speak ture, separation part or as of, hernia, we a of some of the wall. years saying I there, too, “So think I am in for 25 safe put through
I haven’t a drain in the abdominal incision except very under rare I am circumstances. And not talk- ing only, gall-bladder operations cavity. of drains in now but possible in drains the abdominal if find it is is —it always possible possible not if it I haven’t been is —but putting through a drain the abdominal incision. Instead scalpel deep of that, take we a make a nick in the we perhaps maybe longer; skin, about that a little size, not always long longer. as that and sometimes a little That only. scalpel is an incision in the skin and the fat does go through anything. not into using pair artery forceps, “Then, of which are similar only they got you to that hook, haven’t if can conceive artery fairly large Then, this the hook is of that with off. forceps push artery forceps. then these take one of We peritoneum through the muscle it the fascia to about peri- using excepting in cases where knife, without very can see where tense, If it is we toneum is tense. just point forceps nick a little in the the is make is we forceps slips through. peritoneum The abdomen and the open all of this time. usually piece gauze, fine rubber rubber, “Then a you glove consistency which tissue rubber about glove have all seen—I mean the rubber don’t household you rubber I mean the thin kitchens, which use but consistency glove which is surgery, is rubber of used my already prepared, I use that. and insert in demonstrating purpose it. handkerchief for always gauze piece inserted, “A has been surgery and out at it is down at one end there —and doing enough it so is other. then cut short determine, has harm as far are able as we of times. Then been used of thousands hundreds placed The in- and is into abdominal incision. taken open. cision is still wide artery for- “Remember, all that time have these *11 spoken ceps wound, a wound, in that is of as stab up pick end We this that instrument is in there. then and pull leaving out, the in the abdom- and the rest of abdomen is closed and drain cavity. it is closed inal Then the lay- layers. layers opened in in closed in and it is ers. layer peritoneum, closed,
“The first then the then is everywhere, Then, fine membrane which and it is closed. is doing separated in Usually the not cut. were but muscles put three muscles, are in these side sutures (illustrat- They side. come in this here like this and like ing) they they together; tightly Now, . are are not drawn fairly approximation, spoken is so as to obviate what spaces. I term as dead I can make that don’t think spaces. surgery clearer, but that is as dead is known what they brought together jointly Then are and tied. layer yesterday you I “Then that of fascia which showed trying by illustrate means of that cardboard-like paper, closed; closed, is continuous and is not with running placed sutures, but sutures at intervals which are perhaps three-quarters depending inch, an inch of again upon eight or of an judgment operator. may put
the of the You you may put part the ten or in four or And five. they length by of the incision is decided determination are to closed. do, it is and layer outside, also is from the the second fat, “Then Very frequently ways. in one of two It is closed closed. catgut fine common by putting a dozen in half it is closed it is spaces. And sometimes again dead obviate sutures, running running suture— A ... running suture. a closed placed in- is your suture here, a incision if this is fairly good-sized needle, a outside, and on so this is side long (indicating)— maybe that perhaps but oh, about size— goes crosses here and over and needle it is curved along as that is known this; like comes over here you as running start end is tied befor'e suture. This being approximated, layer you keep going of the fat is on you get you excess is cut it and the here tie and when away. . . . is closed. Then the skin tossed may may something not, de- again, and it be done “Then, pa- operator, upon the Is pending again attitude going he a man to do. is table, tient on the what lawyer, bookkeeper? doctor, a he a he machinist? Is Is judgment player? enter into All of these or a football of the operator treatment, that is in addition as to what pointed This is the usual out, be done. I have is to to what procedure, I Mr. Fritz. and did this with firmly reinforced, be more “If felt that wound should we may infection, take on a then we if that there we feel very large if out which, needle stretched needle, a curved pencil. long the end of the from here to flat, be as would it (indicating). needle like this But is curved placed through end of the needle “A suture judgment operator. again depends upon heavy as silk- or uses what is known uses either silk gut. gut suture that is a white tension worm Silk-worm easily. All of these su- looks like silk and is not absorbed up before, them I nature eats tures that have mentioned leukocytes in the course are absorbed means of things. depending upon time, various going large needle, to do if what “And then this layers placed through ex- all the incision did, *12 layers peritoneum. cepting are That is done before these the peritoneum been closed before that is has closed. put inserted, until are in tied, rest are not closed these but the may may four be There be and there not inserted. straight they They may not, below or come six. They through parallel, through come in run 1, 2, 3, 4 or 6. through through through fat, fascia, the the skin, way, opposite out the muscle and
muscle, underneath the are laid through and then fascia, skin, fat and muscle, appropriate are there. sheets aside on the towels up these sut- and then “Then entire wound sewed over. ... are mean are tied ures sewed over—I through step safety pin inserted “Then the last is a gauze I this where it comes out of the stab wound safety pin purpose see have that no is to referred to. The of that gauze pos- and it cannot
accident can occur to the sibly get cavity. of men, into instead the abdominal Some putting gauze, put put a If in in in a rubber tube. may long mean the the tube, rubber it inches inside be six —I cavity. may abdominal operator And the rest of it can be ten or twelve be whatever long. Then inches wants. piece gauze tubing, it is of attached to a one end which goes ring, piece in a here and the end is attached to other goes receptacle at the and is rubber, of side times which down into expects, operator If the we some- bed. large flowing of bile for the next two do, days, amount procedure. expect that, If three that is the we don’t you put your gauze in, in retained and start you put gauze Q. I case? A. did. Doctor, alone. my doing procedure That is a reason for usual unless have something else.”
Respondent operation, pain after suffered much large through incision. amount blood and bile came appellant probe wound, One time ran a into steel Appellant and the nurses small amount of came out. bile placed many dressings Respondent also on the incision. jaundice from had chills and fever. suffered being into Jaundice is caused the bile dammed back Appellant the liver stated and then into the bloodstream. coming through that the fact that bile was out wound if, indicated that the bile Asked blocked. cystic cutting to the common he had come close duct, contrary, I hepatic “On the duct, doctor answered: accounting for the In to it.” close I had come knew might to the result be due bile, the doctor said flow might remaining come duct, or it disease, a stricture accessory Speaking accessory ducts, he duct. testified: They commonly are found.
“They that are not ducts *13 something they supplies why, know, nature don’t but we — always they They are are there, there. are not but sufficiently frequent always mind of in the so that operator, I have and is an added reason to the ones that given drainage putting before for cav- into the abdominal ity after the removal of bladder.” hospital patient given At the to relieve medicine was pain recovery, his and to assist his and tests were numerous respondent made returned to ascertain his After condition. appellant subsequent operation, to his home to the first twenty-five many visited him of these on occasions. On testifying gauze visits he dressed the In wound. about pulled respondent wound, was from the and his family thought appellant intestine, an was testified that piece gauze, compound, iodine, mixed or with some sulfa pieces had been in the laid wound. was one of those by respondent’s family. Appellant had been found said gauze changed every that the had been second or third day, gauze placed and foul; became further, that in a wound by respondent of the nature of the wound had would be- badly, come infected would smell but that there was nothing unexpected. anything unusual that condition or
The doctor denied that he ever told help money. he was entitled
Appellant operated respondent again August on 3,1943. on operation, “exploratory lapar- record of as known otomy,” is as follows: pentothal “Patient under sodium anaesthesia which had preceded grain morphine been atro- 1/4 1/150
phine. Following preparation the usual skin reenforced V-shaped violet, alcoholic solution of Gentian a double enclosing incision was made the scar tissue in the in the skin upper right quandrant. The scar of the abdominal tissue opened, great fascia was and the care incised abdomen injure any sub-adjacent taken not in case structures they were adherent. right opening exploring
“On abdomen and towards pañetes, cavity filled with bile up abdominal abscessed explored. emptied was This It went found. was high present right pus liver. on the almost under the No made. The determine, that I the cultures were could but hepatic right flexure was found to be adherent over to by very indeed, wall to the dense adhesions abdominal misplaced right. to the These duodenum was somewhat possible large adhesions were broken as far down inflamma- of adhesions removed. These were masses were tory, somewhat recent character. margin
“The of the liver exuded some bile part cautery. coagulating of the Bovee touched with There any damage duct, common was no evidence *14 My blocking any anything it. nor was there evidence of clay-colored opinion, therefore, due to that the stools was cavity pressure either from the the within abdominal pres- against pressure from the of intestines the duct or the cavity right wall, of from the which sure abscess with indirect. The abdomen was closed course would be drainage, large drain carried from a stab wound out posterior through higher up the area under the liver and The the the abdominal wall. which had contained abdominal abscess through-and-through silk wall was closed with through being passed fascia, muscles, the the sutures, silk peritoneum, good tissue, closure was etc., scar margins united with of the fascia were then obtained. deep catgut. placed the ab- the chronic Sulfanilamide was cavity along area of drain and dominal the the where cavity inter- The fat was closed with abscess been. rupted catgut. placed plain in the fat Sulfanilamide was placed in the com- drain fat and small rubber tissue was ing through margin of Condi- the lower the skin wound. good. Sponge count correct.” tions bile. He the were infected stated that adhesions caused operation, of cirrhosis At second he found evidence the liver, to the infection. the which attributed general surgery at Counseller, Dr. head of the section Mayo hospital, ás follows: the testified and, after 3, 1943, the December contacted biliary diagnosed fistula, which his trouble as examination, sinus, drainage or from an abdominal the of the bile means respond- upon operated opening hole. The doctor other follow- the at that time dictated 16, 1943, ent December operation: ing report of the
“ excising ‘Tertiary upper right the scar. rectus incision hepatic colon flexure There attachment of the was through connection there was the abdominal wall
31 opening with a sinus tract. This was excised in the catgut interrupted colon closed with rows of one two up row of silk. The sinus tract then was followed above liver, abscess was located between dome diaphragm. liver and This held about c.c. of abscess pus thoroughly grams thick sulfathiazole were which was evacuated. Five
placed cavity. cigaret in the Penrose One gauze filling cavity. drain was inserted with the We extrahepatic ducts, were unable find evidence of bile hepatic but the entrance of the common duct found. was placed dilated, was common and a tube, Sullivan size hepatic hepaticoduodenostomy per- A duct. pyloric sphincter formed about inches below the —mucous using membrane-to-mucous duod- membrane silk. When the opened, enum was there was some bile in the duodenum. say, Just how it arrived there I am there is unable but undoubtedly a duct somewhere that communicates spleen duodenum. The stomach and were otherwise nor- 2). (grade grams mal. The liver was cirrhotic Five of sul- placed peritoneal cavity. fathiazole were three About grams of sulfanilamide were left in the wound. Wound ” (A hepaticoduodenostomy, closed in usual manner.’ as ex- plained by Bannick, Dr. means connection between liver duodenum.) duct
He found an attachment of colon to the abdominal opening wall, with an in the colon. Asked hole was how the caused, Dr. Counseller stated: get pretty say.
“That me You would be hard for to could a hole in the intestine from next to abscess you sloughing taking place, get in could a hole the bowel drainage you might from a not that in is tube have there —that pressure thing.” uncommon, due to the and that sort of explaining operation, In his Dr. Counseller testified: operations, before, “As I in these said second third pretty cases are much the You have tremendous same. you separate tissue, amount scar to the intestine have go you from the under surface of the liver and have to many great there and hunt A times for the common duct. you nothing something that is is to be seen. Sometimes see you you get if bile dilated a needle in there and stick you you I in this are That is did know inside duct. what hepatic stump and I I common duct case. was found the of the got forceps put I dilate that and in a curved able to right hepatic I I ducts,
into and left so knew both was identify any hepatic I duct, evi- common but was unable to point from that down that not mean dence of ducts but does may that the remnants of the ducts not there — involved scar tissue.”
Respondent January 1944, accord- Rochester, 19, and, left recovery. ing very doctor, had a remarkable Mayo’s, respondent’s May 29, 1944, On return to he was Counseller, Dr. his examined who advised return to again July to 5, 1944,he went the clinic where the Seattle. Respondent Seattle, then left for doctor removed the tube. July September Rochester, 4, to 28, 1944. back went suffering jaundice. at which time he was cross-examination,
On Dr. Counseller stated: large “Q. amount Is it true further that because inflammatory you changes found, and that infection hepatic present, identification of common adhesions duct on the very day December, 1943, rendered was 16th identity Q. reason that its A. And the difficult? Correct. of land- rendered difficult was the absence because was inflammatory tissues, scar marks, to condition of due very, making A. difficult? the identification tissue That is say why you on the Q. did not And correct. say today, not December, do not that there 16th of only say you duct, in existence the common bile but inflammatory you unable were that because of the condition determine existence? A. That correct.” its history respondent’s and at before condition Given operation, said Dr. Counseller of the first the time surgery indicated. immediate consider that would not testified, on He then cross-examination: hypothetical referring your “Q. Doctor, answer surgery, you question could recommend of whether or not propounded upon hypothetical question which was based you possibly could you, you stated that believe you, surgery that, mean did did not recommend but *16 negli- wrong surgery performed or be doctor, if would that myself to improper? I have gent I think would For or A. to say sufficient evidence there was I did not believe might surgeons operation think there was other but warrant sufficient appendix. explore and to bladder evidence you given upon as to which was Q. the data And based surgery necessary 9th, 1943, not March whether or there could be difference of on that on among competent
opinion men question? A. think there could be difference opinion. you Q. Doctor, have admitted that there could be opinion competent an honest difference of between medical men as to whether not it or be or inadvis- would advisable operate, given you, able to on 9th? data as March right. you Q. A. then, That is do or doctor, Now whether operate, negli- do not either one could not considered be gent? you specially Q. IA. don’t think . . . And so. patient happened made to the fact reference that if to be you here in Rochester of course it lot would be a easier for hospital probably pa- in have him the easier and for the tient but whether not or he should have remained in the hospital at Seattle or whether he should have dis- been question you presume pass upon missed, not do in any negligence dismissing manner as to infer in him, do you? Q. A. No. as I it, doctor,’ Neither do understand pretend authority ordinary on constitutes care what customary competency region in the of Seattle, Wash- ington, employed practiced by average as medical you, man there, Q. out do doctor? A. No. And neither your you gave intention, as the answers to questions deposition asked in this should be con- strued above, below, or in accordance with stan- Washington? Seattle, dards at A. I think that is correct.” graduated Hopkins Dr. Conrad Med- Jacobson Johns taught surgery ical in School 1911. He Medi- at the Harvard Brigham hospital, practiced surgery cal School and and has twenty-one years. for ex- Seattle He testified that he respondent May eight amined 17, 1943, on which was about days operation. after the first He stated: following “Oh, this man had infection severe operation, coming rapidly just operation, on after the probably most was due to the infected bile drained. Q. Oh, Would infected cause trouble in the liver? A. bile yes, yes, liver, chills infected bile causes trouble kept temperature, fever, while so on. whole day, This did on fourth if I chills; man have had chills you, say rightly. your opinion, Q. remember Can present whether that infection had been before operation? undoubtedly, my opinion infec- Oh, A. *17 immediately draining after. tion was from bile. gall it, I that, like as remember I can’t remember bladder having and un- bed, come from the liver without doubtedly some bile coming from infected imme-
became infected bile diately operation.” after the patient go proper home to to
Asked if it was allow operation, he said: a short time after might yes. patients go home; as well “Oh, let the We question hospital. today, So, it is a at home in the drain as expense.” containing hypothetical question the facts In to answer by appellant, con- referred, as testified' to we have to cerning operation, he that the adhesions the second said Dr. testified all the infection. Jacobson were result of further: “Q. set forth Doctor, infection, if there as has been were Mayo’s August
briefly you, operation in and also at the to presence you say of in- as December, in fection would what inflammatory changes, adhesions, as to and the they Yes. A. duct? or not block bile whether could Undoubtedly of that under all duct is either bile .scar things only sloughed two There are or else it has off. tissue duct happen is that bile that can in that case. One sloughed covered infection, or it was on account of the off get by impossible go and down scar; and it is over the identify and bile Q. If there had no infection scar out. been go you and out, had be able duct been would you end duct one if cut the Yes, ends of it? A. bile both long When after. end drains a while dries over and the other thing disappears. Q. the doctor sloughs If off the whole then duct, the common find the duct or was unable to bile sloughed out indicate, that it been would that what through it had been it indicate to infection; or would sloughed or else off infer it either cut? A. would rather stenosed, as that it was tissue; the scar was covered over entirely scar. accluded duct that is it; call bile we Assuming “Q. Fritz drained bile while that Mr. . . . drainage going hospital that the and home, and after the continued up, that he then healed for time and some assuming jaundiced, get chills, had fever would operation, is a or not that state did after this whether occur take have to doctors A. Yes. We condition that occurs? operate aon case we When we conditions as we find them. do the best we they things as are. If be- can take put infection in and then infected, there, we come don’t can. If that had not have to deal that the best we we perfectly probably infected, have been been most would right. only surgery gall all On the other can hand we — bladder is a ticklish affair for this reason: There isn’t part body many has variations as the region, bladder an extra it is difficult, There sometimes. will here there, tube and another tube we have *18 put do the best can find. infec- we as what we We don’t tion in think I wound, the Infection comes from the wound.
the infection came from that man’s infected bile. usually “Bile comes out from the diseased, liver and that up days. cystic you up, clears in a few The duct that tie con- necting may slough liver, the off and he drain for will weeks. every- Sometimes there is infection such an enormous thing sloughs out. . . . temperature day “Q. You mentioned the the first of the operation, you fully and I don’t believe I asked that. about you significance explain jury? Will the of that to the A. He very high temperature just following operation, had a the usually very which that, means a infection; severe coupled with the swollen, fact that his abdomen was means something of course that the infection comes that in- usually volves the abdomen and it came from infected bile. draining you expose This man bile, and as soon as the you get high temperature. abdomen to the infected bile high temperature patient’s The infection. A means the resistance to the
high temperature high white count is the sign, usually, pus quick Q. of infection. of that onset temperature indicated that the bile been infected before operation. right? right.” Is that A. That is appellant.
Dr. Roscoe E. Mosiman testified on of behalf graduate Hopkins Dr. is a Mosiman of Medical the Johns practiced School and has in Seattle since the first world war. pathology surgery He does at the Seattle General hos- pital. long, hypothetical question propounded
A to Dr. description respondent’s Mosiman included a full of physical prior operation, condition to as indicated re- appellant. history
spondent’s made and the examination asked: He was then your opinion physician, exercis- as a “I if will ask diagnosis degree general
ing exercised that would be care and of using ordinarily, physicians by physicians skilled operat- vicinity, justified ordinary be care in this would gall-bladder appendix Yes, A. ing trouble. for trouble decidedly.” following evidence:
The record then disclosed patient have in- “Q. mean, there be—could would yes. operation? Oh, You see A. fected bile even before get Very the chills before a lot an infection. few will have may operation. low is, That infected bile .the fairly quiet tempera- quantity. patient sort of If the runs may fever, his bile too much or chills or ture distress moderately long periods Q. And of time. affected over be would that infection stay progress A. constant? tend to many depends great depends on the Well, factors; on a type and the of the infection recentness infection organism vigorousness Q. . . . that is involved. you give description structure us a short Can liver and liver up Well, A. made the bile ducts? liver is by a cells, units, and each liver cell is connected *19 tributary tiny capillary large liver, tube, is to a which coming large gray gradually enlarges to form this structure part of out of the lower the liver. is half a million
“Now it is estimated that there about capillaries, capillaries, half a in the liver bile there —about Now, are and million. that shows how thin-walled push pressure, pressure, it takes to bile back how little back through capillaries general the circulation these little into capillaries said, are, as I liver; the and these little of they carry from liver thin-walled and the bile cell large finally tributary, and then makes the bile into the hepatic right again carry duct, into the and left down hepatic ducts, duct and and from there into the common goes through opening little into from the common duct it the duodenum. system pressure rather It is
“The of whole is low. pressure. only weight. millimeters in few has low any pressure, pressure applied is Therefore whether the opening place right at the of little it enters the where pressure applied along the course duodenum, whether is pressure applied liver on the of the duct or whether the jaundice jaundice develop can the result of itself, because against pressure capillaries cells, the bile so back that after the bile on these bile go the bile, cells make the can’t go way normal and has to back.” hypothetical ques- then
The witness was asked another up history respondent tion which contained operation August 3rd, on asked: second "... you say what as to the role on that condi- infection would tion?” His answer was: certainly explained vary-
“That could be on the basis of a ing amount infection in the liver itself and in the sur- rounding periods tissues of the liver, there were of free- jaundice, persists dom from and that when would have chills and fever, these chills and fever were either due to infection within the liver substance itself or outside of the adjacent liver to the tubes.” respondent’s present
The doctor concluded that condition Mayo when he went to clinic was caused infection. (Dr. Mosiman’s) interesting The doctor’s and instructive reasoning long place and conclusions are too in this opinion. His evidence demonstrated without doubt that respondent’s following operation condition due been to infection and not to mistake or carelessness on the part appellant. Dudley graduate
Dr. Homer D. is of Northwestern uni- versity practiced and has Minnesota, Illinois, Mexico, Old King county and Seattle. He is a member of the staff of the hospital, hospital, hospital. Swedish and the Doctors’ new ninety-five per He practice stated that cent of his was sur- gical. question propounded In answer to the same say symptoms Jacobson, Dr. he stated: “I would these justify of infection of the bladder which would operation.” opinion re- was of that the condition spondent operation after the was caused an infection. proper He stated that it to allow leave *20 hospital (Dr. operation. after his first The doctor Dud- ley) by was asked the cause of the found Dr. condition Coun- seller, and he extreme testified that it was caused infection. graduate University
Dr. Edwin a Bannick, Iowa College, spent Mayo time in the clinic Medical had some twenty-five years. practiced medicine in Seattle for respondent that he did not do was called and stated surgery practiced The doctor tes- but internal medicine. respond- prescribed for after tified Mayo’s. return from ent’s probable if the condi-
Dr. Bannick was it asked operation surrounding respondent after first tion his injury He answered: to of the common duct. due question pos- I think it is “Yes. The is rather difficult. may probable, amplify further, a if I little sible but not but observing justifiable delay in these the occasion for a symptoms tain difficulty one cer- is the encounters actually common is duct whether obstruction injury can due to a duct, an or whether it be to common opera- subsequent come down either stone which has tion stoppage bile, on, so that or as result of and so drainage occasionally prolonged after observation remedy condition does itself. actually it is strictured, then of course
“If the duct is unlikely remedy justifiable it itself. The occasion for would delay is due to an actual is to sure that obstruction be stricture..... actually sharp dilata- there stricture with
“Sometimes is portions duct is of it. whole in some In other cases tion nearly actually thread-like; but that it is strictured so uniformity, depending entirely on think there is no attempt injury has occurred and what level the duct' the repair nature made to it. has being, point present picture, “It a variable would you assuming every standpoint, physiological case, passage interfered normal stricture, there was a that the may completely, or as the case with, narrowed obstructed be.” explora-
Dr. Bannick further stated that such cases an tory operation also testified: would be advisable. He subsequent possible infection “Q. for Would readily disappear more duct absorb than cause common just there? left if duct cut and the common were right. question? I think that No, A. Is that I involved frequently as a bile think he had what have referred we *21 peritonitis going up Bile an irritant and back in that area. it a lot of substance, and an irritant substance does damage. Q. possible. Is . . . I think that would be the conditions, the around true that in such such as infection I sutures, think liver bile that the stitches or ducts you might digested," say, call them, themselves could be prematurely by leukocytes? Yes, the A. sir.” Hop- graduated
Dr. Krantz, Clement I. from Johns who taught kins Medical in the Harvard Medi- School later by respondent. cal School, was called asked: He was surgical open, “. . . while the wound was a column packed gauze, pussy in a condition, and foul came out of surgical gauze surgical wound, the have presence that would the wound any upon patient? effect . . . the Would surgical of such a substance the wound have upon recovery patient? effect Well, ... A. gauze placing of the in an infected wound is sound surgical procedure keep open and to the wound and drain- ing, surgical out, let the material is a sound measure. gauze gauze Q. To let the out? A. The will absorb the pus. keeping Q. infected material; is, Is the gauze surgical procedure? infected in a wound sound gauze naturally . . . The A. becomes infected as soon placed keep gauze as it is within the To sterile, wound. one must and, have it in a I container; it, sterile as understand present, there was an infection as and as soon one introduces gauze gauze in an infected, infected wound the becomes well. . . . surgical
“Q. then, under Now the condition where the open, customary, surgical opera- wound remained is it surgeon surgical tion, for the to make a into the wound tract through inside? A. In the first might someplace the bile come from on the operation place, per- has been and a formed contact the bile comes from down where already presume you has mean been made. after the operation completed has been wound sewed over surgeon and the then discovers that there is some in or bile together. below the area that has would sutured or sewed been
only good surgical judgment open the wound to allow this matter of to come bile forth.” respondent points his his states -in brief that (1) during these: That time hospital 9, 30, a condi- 1943, from March March jaundice, (2) chills, 1, fever;
tion of March between history July 1943, 1, home, while at he had a continuous jaundice, deposi- chills, Further, fever. that in the appellant May July 19, 14, June 24, tions taken of appellant no stated that bile drain was run from cavity appellant wound; abdominal also stated foreign that, as came substance which out (3) operation wound, lie”; that, after the second “it was *22 August biliary respondent 1943, trouble; on had constant hospital again respondent (4) for was obstructive hospital jaundice also in the trial and was the a week before during portion a of the tried. the time case was by may just re- admitted that the facts as related present spondent determine, case. cannot in this We part appellant. they prove negligence however, on the of that interesting charge involving case, Here have a most we opera- malpractice performance the a most difficult of in of years’ by surgeon many experience. We have been tion of gall length the of the to describe at location bladder careful explain by to medical its connection reference books concerning together description the liver, the with with leading the from the liver and their connection ducts gall the of in order that reader This was done bladder. problems complete picture opinion might have a confronting this court. cut, stric
Appellant his that if he in brief concedes injured duct tured, the common bile bruised or otherwise negligence. operation guilty areWe he of either would be ap any even indicates to find evidence which unable any way injured pellant duct. the common bile testimony clearly Appellant detail and with minute in his every step operation the for the benefit of of described distinctly jury stated that trial court. He and the operation and injured His method the common duct. not physicians by approved and sur- eminent treatment was geons, respondent. including by those called by pain re- entirely suffered the intense It is clear that by spondent the disease which caused .necessitated respondent operation a sick operation. Before suffering man. He had been from diseased condition of brought bladder, about infected The bile bile. operation. remained infected after the It irritated the many wound and the ducts and adhesions, caused the brought unsatisfactory in turn about condition which operation caused to believe that had not performed. properly foreign been There was no substance respondent’s by appellant. left in abdomen There was no foreign except gauze substance left in or near the wound necessary dressings. Respondent’s and other witness, own opinion placing gauze Bannick, Dr. was of the keeping open draining the wound and sound were surgical measures. argument by respondent
Some has been advanced appellant’s the effect that vision However, was affected. there is no evidence that the doctor had loss vision supplied glasses. other than which was his great supplied mass evidence in this case does prove negligence part appellant. on the It does, on prove appellant great hand, the other used care in performing operation administering patient’s to his *23 operation. needs after the The evidence which set we have proves out any the above statement much better than reasoning part. or conclusions on our
Respondent presented has a motion which reads: “In the event the for new trial is vacated, then motion respondent permit moves this court to the trial court to again pass upon a motion for new trial.” supported by
The motion is affidavits from Dr. V. S. April Counseller, 25, 1945, dated Dr. Bannick, Edwin respondent. Dr. Counseller in stated his affidavit that on respondent suffering December 15, 1943,he found that was biliary biliary “with cirrhosis the of liver” and that cirrhosis is due to mechanical interference the main bile duct performed operation channel; that he 28,1944, December purpose being up stump the to “free of the the common he- patic uniting duct,” this to duct the duodenum vital- over a operation ium tube; that at the time of the last un- he diligent any of the search, evidence com- find, after able respondent’s hepatic found that convalescence duct and mon good. respondent, beginning he Bannick that treated Dr. stated X-ray picture 1944; was furnished an show- June, that he in ing the inserted to connect tube been that Sullivan assuming that, He also stated the duodenum. liver with position, respondent may in the vitalium remains tube recovery.” a “fine make re- has in his affidavit stated
The join the Retail health so that he was able his covered drawing sixty per dollars & Service Union and is Salesman constantly wages. has stated that He also week as he. of the which now in his on account tube be favored work signs jaundice, system chills fever, and that all of in-his are absent. (2d) P. Morrow, 179 Wash.
In v. Morrow following language laid rule down 692, this court upon apply govern a new trial for must those who newly grounds evidence: discovered by appellant made to remand a motion was “Heretofore, purpose passing upon trial court for the case to alleged pass upon newly evidence and to her discovered judgment. petition This motion was deferred to vacate appeal on merits. was submitted when to be heard presented considering reading the affidavits “After support that the motion is not motion, find well we testimony proffered affidavits as to some (cid:127)taken. merely cumulative and the evidence would be show impeaching evidence character, as to which there was by appellant The affidavit at the trial of case. introduced allege present do not appellant of her counsel one available, were other witnesses that the attempt previously. their evidence made obtain had been appear granting justify motion, it must such a “To change probably (1) such as-will that the evidence *24 (2) granted; it has dis- have been dis- been is if a new trial result (3) that it could not trial; since the covered diligence; by of due the exercise the trial covered before merely (5) it is not issue; (4) it material to the Handy, impeaching. 163 Wash. Libbee v. cumulative (not by party). (2d) To the same cited either 312 410, 1 P.
43 Peoples Puyallup, effect are: 685; 247, v. 142 Wash. 252 Pac. Eyak Packing Huglen, River Co. v. 143 229, Wash. 255 275 Pylate Pac. 257 123, 638; Pac. 151 Hadman, 245, v. Wash. Pac. 559; 34, White v. (2d) Donini, 173 Wash. 21 P. 265; Wynn, (2d) State v. P. Wash 900.” respondent
The affidavits of Bannick Dr. do any newly not submit discovered evidence which could have any bearing upon presented the issues here. Dr. Bannick’s entirely upon conclusion is condition, based assumed any way which cannot in affect the issues to relative negligence appellant. simply testimony given
Dr. Counseller adds to his at any newly the trial and does not include discovered evi- dence. Dr. Counseller, examination, on direct was asked respondent’s about condition of liver and testified that graded patient complete it “2” “if ahas obstruction he will have a much more diseased liver.” He stated then respondent “biliary cirrhosis the liver.” Counsel pursue questions for did not then his further respondent’s relative ato cause of the condition of liver. Certainly granted a new trial cannot be because an attor- ney neglects bring refuses or certain facts to atten- jury. tion of that, Aside from the statement made only contradictory given Dr. Counseller of that testimony. other doctors in their
The motion is not well taken and is denied. The order granting court, trial, the trial a new is reversed in- structions to dismiss the action.
Millard, Steinert, Robinson, Jeffers, Mallery, JJ., concur. Grady, (dissenting) J. think suffi- the evidence was
Blake, —I only jury, take cient not the case but warrant undoubtedly plaintiff. for That was view verdict general have made a else it would not order in trial court granting trial. newa
n a gen- trial court entered J. (dissenting) C. Beals, —The under our In my opinion a new-trial. granting eral order affirmed. this order should be decisions I therefore dissent. denied. 4, rehearing 1946. Petition for
January Department 1945.] One. November [No. 29636. Department Betty Rambeau, Respondent, v. Beilser al., Appellants.1 et of Labor and Industries (2d) 1 Reported in 163 P. 133.