Merriam v. Hamilton

130 P. 406 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

1. In the consideration of the allegations quoted it is of no importance whether the plaintiff was pregnant or not, for either condition is normal for a married woman who has not passed her sexual climacteric, and neither one of them is a disease or malady. Although the complaint says the defendant failed to ascertain the plaintiff’s true condition, yet no intimation is given about what that true condition was. To charge a defendant with a tort in a case of this kind, it should appear for one thing that the plaintiff’s real condition was one of disease which by the exercise of the ordinary skill of his profession the defendant should have discovered, for “they that are well have no need of a physician.” In other words, if the plaintiff was in a condition of health, no cause of action would arise upon the mere expression of opinion or diagnosis that she was in one or the other condition of pregnancy or nonpregnancy. In this the complaint was amenable to the objection that it fails to state a cause of action. True enough, the plaintiff says she had a backache, but pain is not a disease; it is only the symptom of some disorder of the body which in turn may not amount to disease or trauma. Webster defines “disease” as “an alteration in the state of the body or of some of its organs interrupting or disturbing the performance of the vital functions or a particular instance or case of this; any departure from the state of health presenting marked symptoms.” It is said in the Standard Dictionary that pain is “a disagreeable feeling usually in its intenser degrees resulting from or accompanying deranged, overstrained or otherwise abnormal action of the physical powers and serving as a warning of danger and a spur to effect.” Mutual Life Ins. Co. v. Simpson, (Tex.) 28 S. W. 837.

2. The plaintiff, indeed, says that she has been rendered weak and nervous and injured in her health and constitution by reason of the alleged careless, negligent, and unskillful treatment of her by the defendant. If sound health and steady nerves were absolute conditions of every human being, it would be sufficient in so many words to charge that a departure from these conditions was due to the negligence of the attending physician, within the meaning of Cederson v. O. R. & N. Co., 38 Or. 343 (62 Pac. 637: 63 Pac. 763), teaching the doctrine that it is sufficient to charge in general terms that an injury was inflicted negligently. But a continuous condition of perfect health in every or any individual does not accord with human experience, and it does not necessarily follow that the ills of which the plaintiff complains were attributable to the treatment given her by the physician merely because they occurred during his attendance.

“It is well settled that negligence may be charged in general terms—that is, what was done being stated, it is sufficient to say that it was negligently done without stating the particular omission which rendered the act negligent—but it must appear from the facts averred that the negligence caused or contributed to the injury.” Smith v. Buttner, 90 Cal. 95 (27 Pac. 29).

In other words, the disorders mentioned in the complaint are such as may and often do happen to any person in the absence of medical treatment and if the plaintiff would charge these to the defendant she must show by an appropriate averment of facts, not conclusion, that those ills were really attributable to him and would not have happened but for his lack of skill.

3. If we turn to an analysis of the testimony, the situation is not made better for the plaintiff. It does not establish any causal connection between defendant’s treatment of her and her alleged state of health. Out of her own mouth come statements of symptoms which all the witnesses agree are common signs of pregnancy. She avows that she desired to give birth to a child and that the defendant advised her to remain quiet and take no risk of bringing on a miscarriage. She menstruated at intervals during the time she was under the defendant’s care. He gave her some remedies to regulate her stomach and bowels, but the principal treatment was to advise quiet and freedom from excitement. In effect they were precautionary measures designed to prevent premature parturition. She states in answer to questions:

“I was feeling just normal, kind of good for nothing. You didn’t suffer any pain? No, if I had suffered any pain there would have been some excitement.”

When by lapse of time it was established that pregnancy did not exist, she consulted other physicians, who diagnosed her case as one of tumor and advised an immediate abdominal operation.. Not satisfied with this, she consulted still another physician, who told her there was no tumor or pregnancy and advised her to eat coarse food, put on a straight front corset, and get rid of some of the fat on her abdomen, and the ultimate event proved the accuracy of this last diagnosis. The evidence thus discloses that her true condition was one of health and that no injury could have resulted because of the diagnosis of her case as one of pregnancy, as that is a normal condition and not one of disease. So far as the diagnosis is concerned, no injury could be attributable to it. The bodily states of which she complains could as well be attributed to the tumor diagnosis as that of pregnancy.

4. In this connection the court erred in denying the defendant’s request to instruct the jury that:

“Where there are two or more possible causes of an injury for one or more of which the defendant is not responsible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as much as the other, the plaintiff cannot recover.”

Other errors are noted, but we deem it unnecessary to consider them. The motion for nonsuit at the close of plaintiff’s ease should have been sustained, and likewise the motion for a directed verdict in favor of the defendant at the close of the evidence should have been allowed.

The judgment of the circuit court is reversed, and the cause remanded, with directions to allow the motion for nonsuit. Reversed with Directions.