*1 601 1952, Arguеd 14, 26, reversed with instructions November October rehearing petition for denied March 1953 SEMLER WINTERSTEEN v. P. 2d 420
250 2d 138 P. *3 Easley, argued Norman L. of Portland, the cause appellant. for himWith on the briefs were Griffith, Phillips Coughlin, Lloyd & Portland, M. Mc- of Portland. Cormick,
Irving argued Korn, Portland, the cause for respondent. On the brief were Krause, Evans & Korn, and Elam Portland, Amstutz, Portland.
Before Chief Justice, Brand, Rossman, Lusk, and Tooze, Justices. Latourette LATOURETTE, J. appeal by Harry an
This is defendant Semler, malpractice judgment in a dentist, from a case, after assessing damages against him verdict sum of taking testimony, At the conclusion $75,000. by timely defendant, moved motions, for a directed judgment, judgment after for verdict, and, notwith- standing the verdict, or, in the alternative, grounds new on the that as trial, a matter of law any negligence part failed the evidence to show on the proximate plain- of defendant which was cause of injuries, which motions tiff’s were denied the trial appeal, again urged court. On the that there is negligence proximate no substantial evidence of warranting the submission cause of the case to Wry. alleged
It is second amended com- negligent plaint that defendant was in the follow- ing particulars: *4 necessary “Defendants failed to take the and immediately precautions
reasonable after the ex- plaintiff’s foreign of teeth to avoid traction sub- plaintiff’s entering passing throat down and stances trachea. and neglected to refused and failed, “Defendants any other kind medical or dental secure of post operative assistance or aid or counsel complaints, being
plaintiff pains of after advised her aforealleged. symptoms and July de- 19,1948 or about advised “On having repeated and violent that she was fendants spells, during coughing charging she dis- said time greenish, from her mouth bile-like foul, sleep night unable to at be- that she was substance, coughing spells discharging of said cause keep substance, that she was unable to food of said on her except milk and stomach and that anacin, generally physical condition, in a weakened she felt negligently time defendants led at which symptoms, pain, sufferings believe to commonly complained aforesaid of as asso- effects of the after extractions.”; with ciated proximate negligence, plain- result of such that as the injuries, alleges she suffered certain includ- tiff lung, op- ing which necessitated several an abscessed placing removal of several ribs, and the erations, expel drainage purulent in her back to tubes whereby permanent injury.- she sustained matter, plaintiff, suffering discloses evidence years, pyorrhea a number went to over defendant’s July morning 10, to on the have her office general remaining A teeth extracted. anesthetic whereupon to teeth were ex- her, administered Oxygen false ones inserted. admin- tracted bring whereupon her out of her coma, her to istered adjoining recovery to an room and was walked Magner, according Nurse placed a cot. Thereafter husband, went to the waiting him the to summon door room *5 606 left; whereupon
room, he entered and the nurse He plaintiff lying testified that when he first she was saw prone right. on her back with head turned her to the by shaking He tried to revive her her shoulder but response. remaining there was no After in the period plaintiff room for a of about five re- minutes, gained brought consciousness. A nurse then in a card of instructions for care and a bottle of mouthwash. Monday, July Plaintiff was asked to return on 12, which she did. At that a nurse examination, time re- plates and her to rinse out her moved her asked mouth, after which she was examined Doctor Burton,- who everything was and she “fine”, told her was asked to return the office in a to week. early morning, night or the next
Late that she com- “funny getting choking, sensation” with menced vomiting. coughing This condition and continued for very following felt weak, She was week. unable only appetite. sleep She was able had no to retain many milk anacin tablets as these had been and took instruction card in case on the she felt recommended medication. need for Monday, July following Upon 19, she returned office to have the sutures removed. defendant’s to performed act, Nurse Schamel A “terribly been ill” that she had all week, her informed symptoms. describing The nurse assured her thing after the extraction the natural “that again August returned to the dental 2, teeth.” On payment only make a and did not talle to but office anyone condition. about her physical condition be- testified
Plaintiff Tuhy, she went to Doctor and that who, worse came operated, part removed a 1948, one on October lung. right She abscess found an rib and operation, around days hospitalized after this opera- another part underwent of December first abscess. of another removal for the tion negligence alleged Turning defendant, negli- allegation theory, first on the placing negligent gence, the defendant than on her side on the back rather on her *6 being following of her she in teeth, the extraction cot thereby causing foreign ma- condition, an unconscious pass her trachea which resulted in the down terial to procedure lung a It is claimed that such was abscesses. conformity improper in and not with the rules of the profession. practices Plaintiff called as a witness McIntyre, qualified Kenneth E. dentist, who testified hypothetical questions: answer to as follows assuming July Doctor, “Now that on or about Mrs. Wintersteen went to have 10, 1948 17 of her uppеr and that 12 of these extracted teeth were teeth teeth them lower teeth, and five of and as- pyorrheatie suming she had a that condition of the deposits that teeth had mouth and her of tarter them, and and between that about around eleven day on that M. or so A. general administered a that about anasthetic, and fifteen minutes Mr. husband, her Wintersteen, thereafter was Wintersteen was or so a room where Mrs. into taken lying lying he found Mrs. Wintersteen and that on lying on her back she was with her head that cot, right, that she was in a horizontal tilted and that position, words, other he observed her eyes eyes were closed, that her and that he and response, [sic] there on and that tallced to response, and there was no he shook her he watched that and that lying over her while she position with head minutes, horizontal tilted in this right or more a matter of five after which time you, she awoke. I will ask Doctor, under these circumstances say whether or not would ordinary that the diligence by care, skill, used average, ordinary dentist under like circum- locality stances in the had been used. been in a horizontal “A. [*] [*] [*] In my opinion position patient on her back. shouldn’t have
Q. Doctor, state what under those circum- position, stances, is, that with to her reference ordinary diligence, skill, and care used the aver- age, ordinary dentist under like circumstances in locality would have dictated. patient usually placed “A. The on the side so everything can drain out of the mouth.” McIntyre’s are of the We Doctor tending be substantial would evidence placing patient of a show that the on the back and not proper the side not be in would accord with the ordinarily employed by treatment members good profession standing the dental in the same lo requires treating cality. of a The law dentist patient degree that he of care, skill, exercise dili gence knowledge ordinarily possessed which is *7 by average profession members the of the good standing in localities. similar Malila v. Meacham, Darling 211 P2d v. 330, 335, 747; 187 Or Semler, 145 P2d 886. 259, 264, Or carefully have searched the
We record and are jury to find from unable evidence which the could plaintiff placed that the on her find back when only put touching on the cot. The evidence on by supplied plaintiff’s question is that husband who waiting after the nurse had that, come to testified the him to the to invite he room, room went into found on her that room and back with her right. proper practice to would tilted Since head placed patient on should be her side, dictate that place presumption be that defendant did would position when she laid on in presumption cot. This was fortified Magner Doctor Burton Nurse who testified that, although they particulars no had recollection of the placed plaintiff position on who the cot or of in what placed, ordinary practice they she was which fol- place patient to lowed was on her side with an drainage, emissis basin mouth under and that patient afterward often turned over onto her back attempting get position, in into most comfortable harmony well-recognized which with the fact that person deep sleep even will do this. passing, interesting
In it is to note that although lying evidence discloses that, she was hori- zontally tipped right. back, on her her head was to the Tuhy, plaintiff’s In this connection, Doctor witness, answering questions propounded: as testified follows * * * operation “Q. After such an with the coming material out so-fast, if she is unconscious probabilities being aspirated just the great of it are as position in one as another if she has her head right? on the you say—you I understood asked me “A. probabilities whether are the same if lying tipped her side with her on head over com- pared lying tipped on her back with her head say lying over. I would there less likelihood in side. getting probabilities are “Q. Yes, but into conjecture right? isn’t that there, gravity probabilities No; “A. of se- likely tipped are cretion much more with the head ’’ over. *8 right, plaintiff’s tipped to Since head was the it practical as a understand, what dif- matter, difficult body position it what her ference would make was tipped her instances, in both head would be over since, drainage, right, permitting “secretion”, thus or to the Tuhy it. termed as Doctor opinion of the has failed to
We are allegations negligence hereinbefore the sustain discussed. importance, of unusual this case is we will
Since proximate purpose of a discussion of assume, for allegation negligence plaintiff’s cause, that respect supported foregoing substantial evi- the submission of same which warranted dence jury. cause then next become the Proximate will question. pivotal asserts In connection following being placed her extrac- back that her responsible for aforementioned was tion foreign the manner draining windpipe through her down matters causing right lungs, in her thus the abscesses into lung. Tuhy, plaintiff’s witness, was asked Doctor When question hypothetical or not he had an whether lung were with that the abscesses connected replied he extractions, teeth or resulted they aspiration thought due to he during the extraction after when material infected but anesthesia, from the unconscious she was happened probable it had more afterward cot, had all on the if the dentist used she was while during precautions proper the extraction. When thought being he because of if it was he asked following the extraction that the cot back on on her *9 prone posi- replied caused, that the abscesses were he general in anesthesia tonsillectomies was tion under positions be desirable to in since the one of least into infected material could drain down the trachea, (two coughing expectorating so and also the soon days) after the extractions under anesthesia caused aspirated think him to that she had infected material He also admitted on while on cot. cross-examination pyorrheatic account of her that on condition it was possible that the infected material could have been during sleep, aspirated deep opera- or with without an giving an tion or the anesthetic, that embolism might during have occurred the blood stream extractions, or without which could them, have caused lungs, to the infection travel via the heart into the happened being or that it could have while she was recovery to the transferred room after the extraсtion. Throughout testimony Tuhy his Doctor insisted that probabilities plaintiff aspirated were that reposing foreign material while following on her back aspiration extraction, that the in the other possibilities. particulars mere were He concluded: * * * you regard- “Q. in fact are in .accordance you ing these abscesses, Doctor, that don’t know all, causes at can’t determine them at all. Isn’t right? “A. That is true.” analyze proceeding Tuhy’s Doctor
Before testi- mony, attention we call fact that there was no foreign substance direct evidence went down lungs, plaintiff’s foreign her trachea into or that such foreign infectious, or that such material was matter lung causing plain- to the extent infected tiff’s abscesses. purport Tuhy’s Doctor answer questions hypothetical operated was that when he he found that had an her October abscess
lung, an that, since she was her back in un- after her conscious condition five minutes teeth having pyorrhea, material extracted, infected through probability aspirated windpipe in all lungs, into her and that such infected material caused against supposition or As inference, the abscesses. testimony that there could we have his have been lungs aspirations being while her teeth were into being she was taken into the extracted, while during night extraction, room after the while she *10 asleep, through or teeth extraction, with without or was getting pyorrheatic into the blood stream and infection lodging lungs. finally in her legal question is not, whether view the testimony Tuhy, proximate
foregoing of Doctor the placing plaintiff abscess was on her of the cause following an unconscious condition cot in on the back of her teeth. the extraction position plaintiff’s that the defendant’s entire
It is predicated upon proximate an cause inference case of § that this 2-402, arid violates inference, OCLA, on an part, “An inference reads follows: is a which, jury the reason of makes deduction which * * proved, facts only urged fact or the fact that the established It proved abscess, had an and that to was that such abscess caused the conclusion was arrive at following position by plaintiff’s back, on her in- indulged (1) foreign in: matter be ferences must (2) pro- plaintiff’s got that such matter trachea; into lungs; (3) that such matter into ceeded (4) that such infectious material caused infectious, abscess. McKay v. Com., In the case of Ind. Acc. State may 195, 87 P2d be found a 198, 201, 202, Or complete upon full and of an discussion inference an Oregon with inference, citations earlier cases. It was claimed that the decedent received an electric using telephone. proceeded shock while He to his traveling home an after automobile, and, about 28 pavement, throwing McKay car miles, his left pavement causing to the his death. It was the theory McKay’s death was due by heart failure which was caused the electric shock day. which he had received earlier that Two doctors opinion testified that in their “heart in fibrillation, probable duced electric shock, cause of his collapse caused him death.”, which to either die or causing wheel, at the thus his loss of control of the Speaking through automobile. Mr. Justice Lusk, we said:
“But are of we that the evidence fails McKay’s to establish that the cause of death contrary, question electric shock. On the is left wholly uncertainty. in a state of ((* “The # # [*] [*] of Dr. Erwin and Dr. Coe that McKay’s injury death was an due to to his heart *11 possible only has one and basis, that is fact the that the man died. Without that there is no evidence injury such whatever the which can be found, and doctors did not claim that there All is. that could definitely be he in an known about the decedent was that an electric shock and
had received that he died accident a few hours automobile later. But question of at cause death was issue, the whatever form and in experts language might choose necessarily opinions they to clothe their arrived at 614 assuming by very thing a
them as fact that was dispute. they other In reasoned that words, McKay sustained an electric shock he came because death, he his and because died electric shock to injury produced capable an his heart have to must reasoning causing collapse. or This is not death rеasoning effect; it in circle.” from cause to that there sometimes no ac- further said We highway. leaving countability for automobiles asleep fall at the of automobiles sometimes drivers are mechanical defects there which sometimes wheel, accidents, that, cause be as that,
“It could as well said between two possible no death, of decedent’s evidence has causes appear produced which makes one cause been probable the triers other, than enables more guess do other than at the solution facts to mystery. plaintiff In situation the neces the sarily v. Box fail.” Annereau Ewauna
must See Pettit, 171 P2d v. 159 Parker Co., 509, 215; 176 Or Com., Acc. v. 592; P2d Vale State Ind. 481, 138 Or P2d 956. 569, 160 Or only proved case known or in the instant fact
So, to abscess, and, had an arrive at is that by such abscess was caused the im- conclusion Tuhy position proper Doctor back, indulge inferences in the several had hereinbefore person may that a is well known suffer an It set out. say causes, various abscess from manner caused in the delineated Doctor abscess pure conjecture highly speculative. Tuhy would be Spain Oregon-Washington v. R. & the case N. In speak 1104, Ann 1917E, P Cas Co., 355, 153 Or ing through said: we McBride, Mr. Justice “ * * * leaves the the evidence case in When jury required be will situation such
615
guess
of several
speculate
possible
which
causes
occasioned the
case
injury,
part
should
their
withdrawn from
consideration.”
be
Smith,
v.
Clemens
Plaintiff
relies
In the Clemens case plaintiff quoted from Kidd, v. ALR 126 P Lippold 160, Or 269 210, follows: as
“ ‘ “The law not does demand of a plaintiff with he establish certainty proximate cause of If the injury. proof his shows that a certain factor bore probably injury relationship cause, the is satisfied and law denominates it the proximately ’ ” cause.” [sic] In the case there four Lippold uncertainties as cause of the loss of an eye, and, in denying plain- tiff at 170 we recovery, p. said:
“* * * court And this has on previous occa- sions ennunciated the rule that when an alleged have been due one of may several injury causes, one of which have been the may sole proximate can be no cause, there unless is shown that as between the two or more causes in question, negligence it was defendant which caused the injury.” plainitff’s allega treat second and third
We will together they negligence emanate from the tions They same circumstances. follow: *13 neglected failed, and to “Defendants refused any any of secure medical or dental other kind plain- operative post tiff after assistance or aid or counsel for being complaints, pains of her and advised aforealleged. symptoms as plaintiff July 19,1948, advised de- or about “On having repeated and violent that shе was fendants during coughing spells, time that said she was dis- greenish, charging foul, mouth a bile-like from her sleep night at unable to substance, coughing spells discharging and of said because keep unable to food substance, that she was said of except and that anaein, milk and stomach her on symptoms, sufferings complained pain, asof and commonly with the after- associated aforesaid of extractions.” effects above, testified with
In connection July went back on when she 19,1948, the nurse she told “ ‘I that, removed don’t know sutures what her to have * * * having I have been me; violent matter with is the greenish coughing up spells coughing bile-like ’ ’’ though weight. losing I was I felt as substance respond plain- being queried, “Did she Upon that?”, ‘‘ nurse] [the replied, said that natural She tiff of thing teeth.........” extraction after the duty that it was the of evidence showed Since notify complaints of defendant nurse purpose might patients we will assume make, knowledge had that defendant of this discussion conveyed complaints which she to the nurse. by McIntyre proper Doctor evidence There upon being aр- practice that defendant would dictate prised should have condition referred complaint checkup.” physician The and have “to a de- allege the failure reason of not did go physician she refrained to a her to fendant to advise taking seen that had she such course, nor alleviated. physician have been her condition would pleading respect rule of in the above is laid Hospital v. National Association, down in Horn through speaking P2d Mr. 654,670, 131 455,wherein, Or said: we Justice Brand, alleged negligence diag- “The is the failure plaintiff concerning physical nose and advise condition and particularly concerning her diseased gall bladder. It is to this failure therefore that the proximate chain cases causation must be linked. Unlike injury which affirmative is done in the very operating upon patient, course the mere diagnose advise, failure here to and of itself, *14 damage. Resulting damage caused no could be made only appear by showing other circumstances plaintiff, rendered the failure harmful. The which recognition required in of to and fact, did plead gall bladder the undiscovered chronic condition was one ‘for which immediate medical and surgical step next treatment was indicated.’ The plead treatment indicated was to that the immediate necessary if the would have been administered plain- This, also, discovered. had been condition alleged pleading that, ‘Plaintiff, in substance tiff being ignorant condition, did of the nature of said surgical any medical or obtain not at that time (Italics ours.) The last for the same.’ treatment necessary is that of causation in the chain element surgical at the treatment or of medical the absence damage have not which would time resulted been administered. had if the treatment occurred alleges a result occurred as that harm The of the gall nondiscovery condition, bladder only non- allegation if the be true can but that ’’ alleged nontreatment. discovery in the resulted plaintiff’s complaint Since was deficient as here- pointed inbefore out, could not recover on said allegation negligence. considering allegation
In the third that defendant negligent by telling plaintiff reason of the nurse’s thing “That that, was the natural after the extraction allegation we find teeth.”, that there is no in the complaint any nor evidence in the record that symptoms alleged ordinary and testified to were not the probable consequence of extractions, nor is there express apparent authority evidence of give nurse to such advice. Mrs. Schamel, the nurse in registered attendance, was dental and not a nurse. The uncontradicted of Doctor Sender was complaints by patients that when were made duty nurses after teeth extractions, it was their report complaints give such to the dentists and not McIntyre In advice. Doctor fact, testified as follows: “My opinion give any is the nurse shouldn’t advise qualifications [sic] at all. has She no to state those things.” judgment of the lower court is reversed with judgment
instructions to enter favor of defendant. Rehearing Petition nor Krause, Korn, Evans £ Amstuts, Elam petition. Portland,
Easley, Whipple Phillips, Coughlin, McCormick; £ Phillips; Lloyd Buell £ M. McCormick, all contra. Portland,
Before Brand*, Chief and Justice, Rossman, Lusk, and Tooze, Justices. Latourette** * original Chief Justice when **Chief decision was rendered. this decision Was Justice when rendered.
TOOZE, J. n rehearing, presenting petitions for Plaintiff orig- assignments to our error directed of number of opinion. inal unnecessary us to in detail the for review
It is practically all the es- in the because case, evidence opinion. in our former How- forth facts are set sential opinion, purposes we herein- of this will for ever, enlarge upon our of the evidence. statement after given consideration to the several careful haveWe respective assignments of and to briefs error Although relating parties there is merit in thereto. assignments, excep- nevertheless, with one some of they reach the heart of this case. do not We tion, assignments, discussing all the refrain therefore only opinion, one serious in our deserves con- because, and our decision thereon will be decisive sideration, matter. holding alleges this court erred “in Plaintiff allowing negligence that defendant’s position on her back on the assume a horizontal cot proximate was not cause unconscious while putrid further, that “the court erred abscesses”, Tuhy’s testimony holding proximate as to that Dr. conjecture speculative highly pure cause was Tuhy putrid lung testified the reason that Dr. aspiration probably caused abscesses reposing pyorrheatic material while infected following extractions, back anaesthesia under putrid abscesses, while all other causes (Italics ours.) improbable.” possible, were *16 620 elementary liability
It is that to fix in a ease of things this nature two (1) must concur and combine: negligence an part act of on the of defendant: and (2) negligence proximate such act of must be a cause injury. of the If missing, either of these elements is liability. there can recovery be no To warrant a of damages, each and both of these constituents of a by preponderance cause action be of must established a of evidence. may
At the outset it be conceded that there is sub- stantial evidence in reсord the to establish an act of negligence part permitting plain- the of defendant in tiff to lie on her immediately back in the room following operation. the teeth extraction This is the negligence upon of upon act which relies and which her entire case rests. question
The decisive then remains: Is there sub- tending stantial evidence the record to establish negligence proximate fact this act of injury the awas plaintiff complains? cause of the of which Ordinarily question particular the of whether a proximate injury complained act the cause of the jury, only one for decision and it is where are all facts such that reasonable men must draw question same conclusion from them proximate cause becomes one of law for the court. proximate When the cause existence under the facts challenged, say it is for the court to whether there is evidence in the record substantial sufficient to submit jury. question to the Kukacka v. Rock, 154 Or 542, Quarry Seaborg Miami v. 297; P2d Co. Pack ing 204 P Co., 362, 370, 103 Or 492. determining question
In whether there is sub support finding stantial evidence this case to negligence proximate cause act of defendant’s testimony injury, must view the we light her. most favorable to proximate cause, relies en- To establish Tuhy, duly tirely upon testimony Dr. E. John city surgeon physician and of Portland. licensed transcript complete of his has caused She *17 given her brief on rehear- trial to be attached to on the Tuhy’s ing. that if Dr. manifest from the record It is testimony a matter of law to warrant is insufficient as proximate question of cause to the submission against plaintiff’s jury, cause of action defendant must fail. discussing ques
In our former when quoted proximate to some extent from cause, tion of we testimony Tuhy. Dr. concluded We that was proximate to establish the element of insufficient carefully cause. have reexamined conclusion We given doing painstaking have additional and and in so Although testimony. all his we must and attention to Tuhy Dr. testified, as true all facts to which do assume required nor do assume the correct to, we, we are not they opinions his conclusions or unless ness of upon in the record. substantial evidеnce are based clarify problem propose we us, before To Tuhy’s testimony, setting length quote Dr. at opinion, in our is mate- which, all his out proximate question cause. rial to the upper suffered from abscess of the lobe Plaintiff an X-rays lung. right was discovered when It Tuhy September op Dr. October, taken in 1948. Upon Be her “in order to drain abscess”. erated Tuhy operation Dr. examined wind fore the pipe lighted instrument”, tubes “with and bronchial any foreign to determine “if there were materials fragments such-as tooth and so on in the bronchial fragment anything tube”. No tooth “or of the like” question reply was found. In to a whether any permanent disability suffered as the result of Tuhy slight abscess, Dr. “I think said: there will be a * * # permanent disability. would She tend to be short average person, of breath, more than the so I would say slight permanent disability.” that there was some Tuhy following hypothetical
Dr. was then asked the question: assuming July
“Doctor, that before 10, 1948, good Mrs. Wintersteen inwas and assum- health, ing July that on or about 10, she went to Dr. Semler’s office to have her extracted, teeth and that she had at 17 teeth that time, that at that deposits time there were tartar on and around her pyorrheatic and that teeth the she had condition of assuming mouth, and further that about eleven July o’clock on 10, 1948, all her re- 17 teeth were being general time, moved at one under a anes- assuming thetic, and that she was thereafter taken *18 onto a Dr. cot office, Semler’s and that about in morning 11:15 or so that husband first saw her her surgery, after she her went for her that he and saw lying position, on this cot in a horizontal that is, right, on her back, her with head tilted to the and eyes that he that her observed were shut that and talking motionless, she was and he tried to her with- any response, nudged out and that he her without any response, standing and then he continued over period approximately her five minutes July more, and then assume that on or about 19, 1948,Mrs. returned of Dr. Wintersteen office Semler and advised a nurse there named Jane suffering Schamel that she had been since about July repeated coughing 13, and 1948, severe spells bringing up greenish and that she was losing bile-like substance and felt that she was weight she wasn’t able to take food, becausе only and that the food that she was able to take taking mill?:, and that she was also anacin. complaints assume that these same Then, Doctor, thereafter, and then that she to the continued went pictures Hospital, those St. Vincents where were X-rays September taken—on 2, taken—those you and that have examined testified about. 1948, you opinion an have as to Doctor, would whether lung abscess that was those or not the shown on X-rays September 1948 was connected or from the extraction of Mrs. resulted Wintersteen’s (Italics ours.) teeth?” objected point upon ground Defendant this at hypothetical question that did not contain state- particularly ment of all the material facts, time upon grounds which element, and we deem un- other necessary to After some discussion between mention. requested court and and counsel, received permission question by modify of the court to reciting question. stating without the time element following question Whereupon, was directed to the witness: assuming “Doctor, the same circumstances that you question, further,
I set out to Mrs. in that and general administered a anes- Wintersteen was July about A.M. on 10, 1948, thetic eleven and position found her in the mentioned husband day, at about 11:15 AM. on that same period approxi- stood he then over for a mately five minutes or more and that she was prone position, posi- a is, same horizontal right, back, tion on her with her head tilted to the during standing her, that whole time he was over further, assume that the dentist who extracted proper complete pro- the teeth used dental blocking cedures connection with the the throat removed; at the time the teeth were under those circumstances, Doctor, do have an *19 lnng to whether or not Mrs. Wintersteen’s abscesses by anything were caused tions?” with the extrac- connected (Italics onrs.) question replied: To this the Doctor lung “Yes, I believe that abscesses were aspiration due to the of infected material pyorrhea, .during following either the extractions general when she was under the anes- influence of (Italics ours.) thesia.” point emphasized At this think we it should be necessary in order tо establish the element of proximate cause in this case, evidence must tend to aspiration show that the of infected if there material, aspiration, during period was such occurred short following of time rested in the room operation. during operation, If it occurred then negligence defendant’s act of hereinbefore noted could possibly proximate not be the cause of in jury. We make note of the fact that the Doctor stated may only during opera that it occurred not have following, as tion, well but also that was “when general she under influence anaesthesia.” following question was then directed to Dr. Tuhy: assuming “Doctor, that when teeth were actually out, taken at is, the time the teeth proper procedures extracted, dental were fol- possibility, lowed, so as to eliminate then is it your position reason of the developed?”
had on the couch these abscesses objection ques- An was made and sustained to following question propounded: tion, and then the ‘‘ you pick Doctor, would care to оut incident hypothetical question in that that I mentioned lung up to connect abscesses the ex- with (Italics'ours.) traction?” *20 Tuhy replied: Dr. following prompt appearance “The the extrac- general symptoms
tions of the under anesthesia coughing ring tions] to expectoration [refer- of this material days following a or to time one two the extrac- certainly experience from would me lead likely quite think that it as- that had pirated person this infected material. a is When general wider and there anesthesia is infected draining material from the mouth or after sinuses tonsillectomy you positions one of worst that may or one, assume a flat horizontal because go material will down the mouth and between the windpipe. vocal cords and into It won’t do that person in a who is awake because normal reflexes person spit will make that out the before it stuff goes depressed by windpipe, into the but where these are reflexes or anesthesia insulin shock in- lodge portion lung fected material will in the of the (Italics ours.) back.” The witnеss further testified as follows:
“Q You first treated Mrs. Wintersteen at Mat- surgical way son Memorial in a for the abscess upper part right lung? “A That is correct. you opinion,
“Q Do have an Doctor, to what ? caused that abscess I suppurative “A believe followed a
pneumonia aspiration foreign due to the material in the mouth incident to extractions.” Later Tuhy in his direct examination Dr. testified putrid lung had a abscess, which he des- pus cribed as one where the has foul odor. He also expressed following operation it as his an involving patient the throat or mouth, should be placed position, ain head-down as he because, said: person operation if a has had an
“Well, on the mouth or nose or throat and is unconcious simply perhaps
allowed to lie on Ms back or flat reclining up, much Ms head the secretions are with apt go windpipe more the and allowed to into the and into down they properly lungs suctioned than if are out by gravity he is recover- while drain ing anesthesia(Italics ours.) hypothetical Thereupon, question anothеr di- following proceed- to the are the rected witness. ings in connection therewith: question ask Doctor: I would like to “Q July, Assuming Mrs. before Wintersteen assuming good health and that on about *21 July Dr. office to 1948, she went to Semler’s 10, and that she had seven-
have extracted her teeth there and that at that time teeth at that time teen deposits on her teeth and tartar or around were pyorrhetie [sic] condition of her that she had assuming about further that eleven mouth, and day teeth were o’clock on that all her seventeen general anaesthesia, at one time and under removed and same a assuming that that thereafter and on further
day is called found her in what her husband room lay-out lying a horizontal on her back in right, position that her and mouth turned to with her eyes was motion- were closed and she talking response to her without and that he tried less response shook her without her and that he from assuming she had been her, further that from general given eleven o’clock anaesthesia about morning continued and that husband stand- that ing period of about five or more over her for during tMs after eleven-fifteen and that minutes period did not—she continued in the same entire state she and that ahout mentioned, that I have after eyes got up, opened more minutes five posi- sitting her in a her husband assisted and then on or then, Doctor, assume that about tion July Wintersteen returned to the 1948, Mrs. and advised the nurse there Dr. Semler office of that she had been name was Jane Schamel whose
6B7 July repeated suffering about 13, 1948, since coughing spells bring- and severe and that she was ing up greenish substance, bile-like and that she weight losing because she wasn’t felt lake she was only and that the food that able to take food she was to take milk and that she was also able taking aspirin; Doctor, then on or assume, September September about the St. 2nd or 1st she went to Hospital and then those Vincent’s X-rays September you taken 2nd which [sic] about, have and testifiefid seen observed you Doctor, under all those circumstances would lung have an as to the time that these ab- scesses were contracted? gone
“MR. EASLEY: That all been over. hаs already, your We have been over this Honor. I repititious probably [sic]. think it is doctor will The question admit that he answered the same identical yesterday. contracting, “THE COURT: date gone
I didn’t recall was If into. was—is object your question? your “MR. KORN: Yes, Honor.
“MR. EASLEY: The actual date?
“MR. KORN: Yes. “MR. EASLEY: I understood that the doctor had limited it to the teeth extractions on the 10th, maybe wrong. but then I (by Korn) *22 opinion “Q Mr. Do have an
that, Doctor?
“A Yes. opinion?
“Q What is that “A I would conclude that Mrs. Wintersteen days couple of after these extractions had de- veloped syinptoms suppurative the of what we call a pneumonia which lung was forerunner of the suppurative pneu- that, abscess and further, the probability aspira- monia in all was caused the of tion infected material from her mouth, either during procedure immediately or afterward, position during especially period the be since from anaesthesia would not considered medically position proper since such would be more and under likely
general to anaesthesia she aspirate material when she unconscious. such to “Q Then have an do aspira- probabilities tion of those as to the time element materials? during the “A could occurred either It have period or in the unconsciousness extractions general I don’t afterward, under anaesthesia say likely it I could when was more think that have occurred. probabilities, “Q are the Doctor? What say I the dentist who did the “A that if would precautions all the usual dur- extractions had used
ing of infected mate- [sic], the extensions suction packing if he had on, throat and so used rial, precautions and then she had been laid all those position back, horizontal on her out in this very likely gone material had that this infected when she was on couch. down afterwards probabilities your are those the “Q And knowledge, Doctor? (Italics ours.)
“A Yes.” reply question that in the Doctor’s to the It noted probability” aspiration again that “in all he stated during operation immediately or either occurred general “under and while afterward, and “when she was unconscious.” We anaesthesia” question in his answer second observe that also repeated relating he time element, to the “probabilities” have were it “could occurred either period during “in the uncon- the extraction” general anaesthesia under sciousness afterwards.” (Italics ours.) “and I I don’t think His statement: likely say more to have occurred”, when it was could significant.
629 very likely His later assertion “that it was gone this infected material had down afterwards when she the must be conch”, considered in the light prior of his answers which were in substance to occurred, effect that it if it occurred at all, while general was “under anaesthesia” and “when unconscious.” Moreover, it is obvious inconsistency there is a decided his between last state- immediately prior ment and that made thereto that, say likely “I think don’t that I could when it was more Considering prior replies have occurred.” his upon they the foundation which were is based, it not opinion “very likely” manifest that his as to what was “probable” guess or part constituted abut mere on his purely speculative? and is opinion expert
An of a medical result “probable” “very presents question likely” is no jury upon for based determination, unless facts light and, all the evidence is rea case, sonably McKay In sustainable. v. State Ind. Acc. Com., writing 161Or Mr. 191, P2d Justice Lusk, rejected of a court, medi expert cal had who testified that “heart failure” at particular “probable”. specified time was When “opinion” plainly opposed such medical to reason, any pur it fails to constitute substantial evidence pose.
Upon Tuhy Dr. was examined cross-examination, lung possibilities as to the causes abscesses. Several lung may as to how abscess have been by pyorrhea, caused other than the manner claimed developed, ease, in this admitted the wit- and.
ness. he Thereafter, testified as follows: already jury
“Q Now have told trachea is sort of a tree-like Court *24 windpipe? device, we call it the windpipe simply is a tube Yes, the “A many main bronchial tubes into divides into the tubes. other bronchial the the trachea so that
“Q Nature has fixed getting limited? in is matter likelihood outside That is correct. “A up there the device “Q other is words, what In protects the at head the trachea which the called? trachea, is that what trapdoor epiglottis of a business is “A sort windpipe. Thе cords lead into the where the vocal progress epiglottis helps to cover tend go foreign into the matter doesn’t cords so that goes esophagus. windpipe but into protected the had “Q In words, other nature objects? foreign lungs from'the way ways, Yes, in too. “A in that other is natural or “Q Doctor, Now it in fact, particular sleep at mouth induced reflex go away and the first of the trachea is to last right, physical normal return, to isn’t that in the reflexes? cough fairly Yes, is not lost in “A reflex deep plane anaesthesia, anaesthesia, in the third generally. cough is that this reflex—and that what “Q So talking nature has because
we are this lungs, about—remains keep things your coughing out of device and that isn’t it? too, it, is course, if material No, “A there are others—of windpipe get are nerve into the there does endings down expel coughing and tend to stimulate which go are others—shall I into them? it. Then there primarily in No, because I am “Q interested trachea. the ones at the head of the “A Yes. sleep in induced or normal reflex,
“Q So going go sleep it the last reflex is will be if go lung protection reflex because of af- it fords? say cough “A IWell, would that the reflex ordinary sleep in but is de- effective
pressed especially in anaesthesia, or absent deep anaesthesia. say cough “Q You wouldn’t that the reflex in good sleep is as as it when are awake? say good deep “A I would that it isn’t as ordinary light sleep. sleep anything gets In if down person cough, just say, will I there, would profound sleep
well as if is awake; he but in under alcohol or sedatives or narcotics, influence of definitely depressed. would be reflex degree? “Q So it is all a matter of (Italics ours.) “A That is correct.” *25 theory doctor, the as of well in plaintiff’s cough case, is that reflexes de- pressed by they operate the anaesthesia, so that did not prevent foreign entering to lung material from cavity by way windpipe. foregoing From the cough the witness, is evident that the ordinarily light fairly reflex deep is not lost in only “deep “pro- but anaesthesia, anaesthesia” or * * sleep found under the influence of alcohol In to reference anаesthesia and its effects, witness testified: you talking “Q Doctor, are about anaesthesia. job proportioned
This anaesthesia to the be to done?
“A That is correct. given, “Q And the more anaesthesia the more tendency deeper sleep; is to become the more you give anaesthesia appear? the more the reflexes dis- Yes,
“A “Q correct. comparatively a oper- Now, then, for short say, ation ten or of, fifteen minutes, in fact, the time that or interval between time differential person goes is time that the chair and the into given oxygen into matter room, and led she you have been told fact, than hour—in less an and know about the facts of this case she went into the chair quarter eleven, that at a quarter is, eleven, into the room at was led she bathroom, she came down the hall she went earrings—you have back, she took off coat heard all this.
“A Yes. pre- administered—she was
“Q Well, she was pared the was administered for the anaesthesia and she extracted, anaesthesia, seventeen teeth were oxygen, she then administered which bring right, to them out of the isn’t that normal, sleep? n commonly yes. done, “A It is artificially they sleep induced to “Q So are brought it?—[objection] artificially out * * * stayed minutes, And then she five or ten words, in other time is the anaesthesia time—the approximately time, the anaesthesia helped out, stairs, then walked down got into 5100 block north took a cab and Mallory noon. In other words, Burnside on Street an hour and fifteen minutes between the time that the room and did all of this until into she went got time she clear out to the north end. It your be considered that she was would very light cmaesthesia? necessarily. “A Not *26 Why? “Q depend agent. “A It would anaesthetic quickly are some anaesthesias are act- There away may produce
ing quickly go fairly and deep anaesthesia. oxide?
“Q What about nitrous may get fairly deep oxide, one “A Nitrous fairly prompt. is and anaesthesia With, you wouldn’t mind, facts in those “Q say probabilities that the anaesthesia are deep? wasn’t status, tell me about “A Could example, pupillary and extractions and for reflexes, of her state cough during she did
whether answer better. I think I could so on?
‘ that there never evidence ‘Q There will be any coughing. any coughing. Well, I never
“A There was point in wоuld be a thixik that would favor of being depressed. cough reflex Why that? “Q is position, lying this horizontal
“A Because be inevitable. it would almost talking sitting about
“Q We are the chair anaesthesia, nitrous oxide. with m am m m m person If “THE has ex- had WITNESS: go amount blood will
tractions the back certain down they should, of the throat which course, usually up spit suctioned out, have it and both, they lie anaesthesia back, if under on their I would say go inevitable some almost material to they light very are there. Now under down if just get anaesthesia, almost awake, that will them They try coughing. up cough, will to set cough spit they this stuff out. are under If deep fairly apt go the material anaesthesia (Italics ours.) unobstructed.” down undisputed facts show was ad- operation oxide; nitrous that before the ministered oxygen entirely completed, was used to restore oxygen being regu- consciousness, the amount of recovery was coincident with so that lated the end operation. sufficiently When had re- operation being anaesthesia, com- covered *27 pleted, got out of the dental she chair and the with recovery assistance the nurse walked room. foregoing From the statement of evidence, patent plaintiff “fairly deep” it is that not under was “deep” recovery nor anaesthesia in while room. She had come out from under the anaesthesia before she dental so, fact, left the so much chair; she recovery was able to with to the room. walk, assistance, There is no substantial evidence the record that any operation “unconscious” at was time after the completed. testimony was The husband toas recovery what was said and done in room falls being far short substantial evidence to establish plaintiff the essential fact that “unconscious” asleep, at even time, that she was sound testimony only testimony his the record which lying relates to the few moments on the testimony hypothetical cot. This is summarized in the questions, supra. search of
Our the record fails to disclose medi- testimony cal to the effect that one who has been oxide, administered nitrous from which is fairly prompt, given oxygen and who has been to hasten (аnd consciousness who has recovered consciousness being to the extent of able to walk with assistance from resting room), may again dental chair to the lapse a state of unconsciousness from into the effects of the drug theretofore used. Common sense teaches us that has been restored to who one consciousness after for a short anaesthesia time at will, least, remain drowsy and not wish to be disturbed. The fact that period minutes, more or within five less, after get up, lying through able walk down, elevator, dental offices to leave the build- having nothing ing, meantime in the the nurse done significant. wakefulness, also is to hasten most can be claimed for a it affords the basis husband *28 speculative link another in inference, doubtful “speculative because causation; inference”, chain of light considered in the from this alone, jury it that the record, the entire is manifest would guess compelled necessarily to resort to mere be to plaintiff general was under find that “unconscious cough depressed, reflexes at anaesthesia”, with questiоn. pos- in To eliminate all the other the time opinion former as to time sibilities mentioned in our pinpointing step in as an cause, essential during “aspiration material” the brief of infected necessary recovery it is room, time testimony. entirely upon depend Mr. Wintersteen’s upon proximate case Plaintiff’s cause must first pass the test of whether there substantial evidence general under to show “unconsciousness anaesthesia” resting immediately part while she was follow- operation. general ing “Unconsciousness under Tuhy’s for Dr. the sole basis inference anaesthesia” is likely aspiration occurred while so again repeat hypo- lying his answer down. We question: “It could have occurred either dur- thetical ing period inor extractions unconsciousness * * (Italics general anaesthesia under afterward Tuhy’s ours.) Dr. from the record that It obvious upon premise, an erroneous was based deduction support premise no substantial finds which point our former out As we evidence. Tuhy’s opinion herein, Dr. demonstrated
as further speculative. purely 636
15. In 15 Am Jnr 22, § Damages, following rules are stаted: “The damages recovered in case must any he shown with reasonable certainty both as to their nature and in respect the cause which they
proceed. No can recovery he had where is un- certain whether plaintiff suffered damages unless it is established with reasonable certainty that the damages sought resulted from the act com- of. plained Hence, no can be had where resort must he had to speculation conjecture purpose whether determining the damages resulted from the act of which is made complaint or from other cause, some or where it is impossible say what, any, if portion of the damages resulted from the fault of the and what portion defendant from the fault the plaintiff himself.” (Italics ours.) Becker v. Tillamook Bay Lbr. Co. et al.,
Also
see
Allen et
ux. v. McCormick,
134, 142,
Or
P2d
237;
*29
v.
604, 612,
Or
The conclusion we reached in our former opinion had as a failed, matter of law, establish the element of cause proximate is correct, and we to the result adhere therein announced. for rehearing is denied. petition