55 Wash. 470 | Wash. | 1909
The respondent, a widow, brought this action against the appellant, who was a physician and surgeon in active practice in the state of Washington, to recover for injuries received by her arising from alleged mal
The appellant answered the complaint admitting his attendance upon her in the manner claimed, but denied that the instruments he used upon her person were unclean or unsterilized, or that the disease known as gonorrhea, or any disease, had been communicated to her thereby, and denied that she had such a disease as gonorrhea or that she had been damaged in any sum whatsoever through any act of his. The cause was tried on the issues thus made before the court sitting with a jury, and resulted in a verdict and judgment in favor of the respondent in the sum of $4,000, from which this' appeal is taken.
The assignments of error suggest five principal questions, (1) that the evidence was insufficient to sustain the verdict and judgment; (2) that the court erred in refusing to give an instruction requested by the appellant; (3) that the court erred in permitting a witness to answer a certain hypothetical question; (4) that the court erred in instructing the jury as to the amount of the recovery; and (5) that the verdict is excessive. These questions we will notice in their order.
The evidence on the part of the respondent tended to show that the respondent had been suffering for a number of years with some nervous affliction; that early in the year 1906, her troubles became more acute, when she called in the appellant to prescribe for her; that he examined her as to her symptoms and prescribed some form of medicine which she took as directed, but which gave her only temporary relief; that the appellant thereupon stated to her that her symptoms indicated some derangement of the genital organs, and that if she would call at his office he would examine her for the purpose of ascertaining whether any such derangement was the
The respondent further testifies that she was in bed most of the time suffering from pains in the genital region of her body, accompanied by a discharge of a purulent nature, between the time the appellant quit treating her and August 15, 1906, when she consulted another physician of Ballard, who pronounced her disease to be gonorrhea; that this physician treated her for some three months thereafter, finally pronouncing her substantially cured. She also testified that her husband died on January 11, 1906, and that she had not had sexual intercourse with him for some weeks preceding his death. She was not asked, and did not testify directly, that
The appellant testified that he was called upon to treat the respondent in January, 1906, when he found her complaining of much pain in the side in the region of the liver and pleura and of considerable pain in the abdomen and right ovary; that later she complained of soreness in the ovaries and womb and some discharge; that he requested her to come to his office for an examination; that she did come and he examined her genital organs, finding an enlarged condition of the womb, some inflammation of the mucous membrane, accompanied by a discharge; that in making the examination he used a speculum, a probe and forceps; that these instruments were kept on top of a medicine case in his office; that they were never kept in a drawer; that after using them he always washed them in a mercuric iodine solution and soap and hot water, and immediately before using them he sterilized them by boiling them in hot water in a receptacle on a gas stove in the back part of his office, and that it was in this manner that these instruments had been cleansed and sterilized before use on the respondent; that the last time he had used the instruments prior to January 25, the date he used them on the respondent, was on January 19, on a woman suffering from chronic uterine trouble, not gonorrhea, and not infectious, and that he had not treated a case of gon
He further testified that his office was heated by a steam heater operated only in the daytime; that at night the office would become cold, running down to a temperature of from 50° to 55° Fahrenheit. The appellant also called a number of expert witnesses who testified, in substance, that gonococci, the microbes of gonorrhea, could not survive in a temperature as low as 50° or 55° Fahrenheit for any length of time, certainly not as long as four days, especially upon a nickel plated instrument such as a speculum; and each of them testified that, under the circumstances testified to by the appellant, it was impossible that the respondent could have obtained gonorrhea from his treatment. In rebuttal two witnesses testified that the appellant had made an examination upon them similar to the one made on the respondent, the one in April, 1906, and the other in June, 1906, and that in neither case did he sterilize the instruments before using them; that he took them from a drawer where they were kept wrapped in a towel, and used them without cleansing or sterilizing in any manner.
There was here, we think, sufficient evidence on the questions of the appellant’s negligence, whether the respondent had actually become infected with gonorrhea, and whether the disease was communicated to her by means of the instruments the appellant had used upon her person, to require their submission to the jury. The respondent was not required to prove her case beyond a reasonable doubt, nor by direct and positive evidence. It was only necessary that she show a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable. If it be true (and whether or not it is true was for the jury) that the respondent went to the appellant’s office free from gonorrhea; that the appellant introduced into her vagina a speculum, which he used on other patients, without cleansing or sterilizing it, and that with
The hypothetical question complained of was a fair summary of the facts which the respondent’s evidence tended to prove. True the question embodied the very fact that was ultimately to be found by the jury, but this does not render it incompetent. To reach their final conclusion the jury were compelled to draw an inference from the facts proven which involved a question of medical science; that is to say, after all of the facts had been given in evidence, it was still a question whether the disease could be communicated in the manner recited, and as that question involved a matter of medical science, it was proper to submit to the jury on the question the opinion of an expert versed in that science.
The requested instruction was the following:
“You are instructed that should you find for the plaintiff in any sum you should not take into consideration or allow her any sum for loss of service or earnings as there is no evidence in the case to support such a claim.”
On the question of the amount of the recovery the court instructed as follows:
“If you find for the plaintiff, you will allow her such sum as will compensate her for the injury sustained. In fixing the damages, if you find any, you will take into consideration the physical and mental pain and suffering by the plaintiff if any, by reason of the injury and loss of time if any, the sense of humiliation and disgrace if any, the expense of effecting a cure, including physician’s charges and medicines if any; and from those considerations allow her such sum as will compensate her for the injuries sustained by her, if any.”
This instruction is within the rule of the case of Niemeyer v. Washington Water Power Co., 45 Wash. 170, 88 Pac. 103, and the cases there cited, and on the authority of those cases we hold it free from error.
It is finally contended that the verdict of the jury is excessive. This contention we think must be sustained. The appellant fully recovered from the disease, and no permanent disability or injury resulted therefrom. Her losses because of inability to perform her ordinary duties while afflicted were but little more than nominal, and her expenditures for medicines and medical fees were inconsiderable — the whole of her losses in these respects did not exceed at the utmost the sum of two hundred dollars. The remainder of the verdict, there
Rudkin, C. J., Chadwick, and Gose, JJ., concur.
Mourns, J., dissents.