11 P.2d 819 | Wash. | 1932
This action was brought by W.H. Hall, as administrator of the estate of his deceased *290 wife, Esther E. Hall, to recover damages for alleged malpractice of the defendant, a physician and surgeon, resulting, as alleged, in the death of Mrs. Hall. At the conclusion of the testimony, the trial court sustained a challenge to the sufficiency of the evidence to warrant any recovery in favor of the plaintiff, and entered a judgment dismissing the action. The plaintiff has appealed.
[1] The first and principal assignment of error is the granting of the motion to take the case from the jury. There was a former trial of the case, after which the complaint was amended in important particulars, and whatever may have been the charges and contentions under the original complaint, it appears that, in this trial and on the appeal, the appellant, referring to Justv. Littlefield,
"A physician is liable, as a matter of law, for a wrong diagnosis followed by an improper treatment to the injury of the patient."
Mrs. Hall was examined and treated by the respondent in his office in Olympia, on May 9. She called again at his office on May 14 and May 24, for consultations. The respondent did not see her nor have a call from her thereafter. On May 27, at her home in Grays Harbor county, she called in another doctor, who cared for her professionally until June 5, the day before she died, that doctor having called in a third one for consultation a few days before Mrs. Hall's death. There is no evidence that she complained to any one of suffering in any manner on account of her condition between the dates of her first and last visits to respondent's office, nor is it claimed, as we understand, that *291 the respondent treated her on either of her two last visits.
An extended review of the evidence would not be profitable, nor is it necessary. There was testimony that, a few days prior to the time of her first visit to the respondent's office, another physician told her he thought she was in a condition other and different from that for which the respondent treated her, but there was no proof whatever that respondent was made aware of any such advice, nor is there any proof at all that Mrs. Hall was not actually suffering from the disease for which she was treated by the respondent upon his diagnosis.
Appellant cites the case of Rae v. Nelson,
"The question here is not as to whether defendant Nelson lanced the carbuncle skillfully, but is as to whether or not, in so doing, he severed a small artery and neglected to tie the ends thereof so as to prevent excessive bleeding. It is not contended that the doctor was guilty of negligence in severing the artery, but only in not tying the ends after the same had been severed."
That question of fact was one for determination by the jury.
Whether in a given case an arm should be cut off, involves professional judgment, but upon performing *292 even a skillful amputation of the arm, the question of whether the surgeon neglected to tie an artery that was severed, is a question of fact which, upon conflicting evidence, must be left to the jury.
McCormick v. Jones,
Appellant's next case is Wharton v. Warner,
The case of Samuelson v. Taylor,
Other cases are cited by appellant, but they are of the same general kind, and do not require any analysis here. They present questions of fact, not resting in professional judgment, for determination by a jury.
In the present case, however, as already noticed, no one claims that the patient was not suffering as the respondent says she was, nor that the respondent ever stated to the contrary or represented a different diagnosis.
[2] As to the treatment, two reputable experienced physicians and surgeons, having many years of practice in Olympia in the same line of medical and surgical practice as the respondent, upon hearing respondent's testimony as he gave it at the trial concerning his diagnosis and treatment of the case, testified that the treatment was proper, and recognized and approved as such by those reasonably skilled in practice in such cases in the community. No physician in the county testified to the contrary. Upon this subject, there is no question about the applicable rule in this state; it is given in Howatt v.Cartwright,
"We recognize the rule laid down so often that a surgeon is not liable merely because of a bad result. Peterson v. Wells,
"We also recognize that it is not a question of fact for the jury, but the court will determine that there is nothing upon which the jury may pass where reputable physicians and surgeons of equal skill and learning disagree in their opinion as to what the proper treatment should have been, and that the jury will not be allowed to accept one theory to the exclusion of the other. 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. Sawdey v. Spokane Falls Northern R. Co.; Wells v. Ferry-Baker Lumber Co.; Wharton v.Warner; Lorenz v. Booth; and Dahl v. Wagner, supra."
The rule and language of that case were reaffirmed and repeated in Brant v. Sweet Clinic,
[3] The second assignment of error arises upon the refusal of the court to allow in evidence certain portions of the testimony of Dr. Barry, given at the former trial of the case. It was offered under the provisions of Rem. Comp. Stat., § 1247, the witness being unable to appear at this trial.
The evidence not allowed, or stricken, cannot be well discussed without setting out much more testimony with which it was connected, and also much of the complaint *295 upon which the former trial was had, and of the amended one upon which this trial was had. We do not find in the record the complaint upon which appellant claims the first trial was had, but assuming its contents are as appellant contends, it is clear there are differences in the allegations of the two complaints. The rulings of the trial court involved in this assignment were upon the grounds that the rejected testimony was not applicable to the issues made by the amended complaint, and upon examination, we are of the same opinion. Besides, it appears that, whether objected to or not by the respondent, the evidence referred to was immaterial, in our view of the law applicable to the merits of the case.
[4] The third assignment is that the court erred in sustaining an objection to a certain question asked the respondent on behalf of the appellant. But the trial court correctly stated, in our opinion, that the question proceeded upon an assumption or hypothesis not justified by any evidence in the case.
Judgment affirmed.
MAIN, BEALS, HERMAN, and MILLARD, JJ., concur. *296