Shives v. Chamberlain

Decision Date19 May 1942
Citation126 P.2d 28,168 Or. 676
PartiesSHIVES <I>v.</I> CHAMBERLAIN ET AL.
CourtOregon Supreme Court
                  See 21 R.C.L. 401
                  37 C.J., Limitation of Actions, § 259
                

Before KELLY, Chief Justice, and BAILEY, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

ALFRED P. DOBSON, Judge.

Action by James Shives against Charles T. Chamberlain and others, a firm of physicians and surgeons, to recover damages for impairment of vision alleged to be the result of malpractice of one of its members. Subsequent to the institution of the action the named defendant died and D.B. Chamberlain, as executrix of the estate of Charles T. Chamberlain, deceased, was substituted as a defendant in his stead. From a judgment against the defendants in the sum of $18,000, defendants appeal.

AFFIRMED. REHEARING DENIED.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellants.

Barnett H. Goldstein and Bartlett Cole, both of Portland, for respondent.

KELLY, C.J.

During the period of time involved herein Dr. Charles T. Chamberlain, now deceased, Dr. Harry M. Hendershott and Dr. Wilford H. Belknap were associated together as partners, engaged in the practice of medicine and surgery as specialists in the treatment of diseases of, and injuries to, the eye, ear, nose and throat, with their offices in Portland, Oregon.

Subsequent to the institution of this action, wherein the complaint was filed on July 23, 1940, namely, in the month of December, 1940, Dr. Chamberlain died, and, seasonably thereafter, the executrix of his last will and testament and estate was substituted as defendant in his stead.

In 1932, plaintiff first applied to Dr. Chamberlain for professional attention. Dr. Chamberlain's record discloses that on the 10th day of November, 1932, while then in consultation with Dr. Chamberlain, plaintiff complained of watering of the right eye, and Dr. Chamberlain removed milia therefrom, which, as the testimony shows, are little stopped-up glands along, more or less, the border of the lid.

According to Dr. Chamberlain's record, the second call plaintiff made upon him occurred upon November 30, 1932, when Dr. Chamberlain removed more of those milia from the upper lid, and at the same time the patient complained of a slight haze over the right eye. That record, namely, Dr. Chamberlain's, discloses that plaintiff visited the doctor again on March 1, 1933.

In April, 1933, Dr. Chamberlain treated plaintiff for some impairment of hearing.

On December 14, 1933, Dr. Chamberlain made an examination of both of plaintiff's eyes and recorded that at a distance of fifteen feet plaintiff's vision of both eyes was normal. At that time, it is noted that plaintiff used a reading glass which gave him normal reading.

The next visit that plaintiff made to Dr. Chamberlain occurred on July 30, 1937. Again on September 24, 1937, and on October 24, 1937, also on January 3, 1938, on April 1, 1938, on June 13, 1938, and on September 20, 1938, plaintiff called upon and consulted Dr. Chamberlain.

Dr. Chamberlain's record of plaintiff's condition upon September 20, 1938, is as follows:

"Shives, Jas. M.

9/20/38. Total loss of vision in O.D. since July 10th. Probably detachment of retina. Cannot make out any details of fundus." [The letters O.D. signify the right eye.]

Upon cross-examination of plaintiff, after objection had been made to defendants' attorney stating the contents of Dr. Chamberlain's records when they had not been introduced in evidence, the transcript of testimony discloses the following cross-examination:

"Mr. Senn: I will introduce them, but I want to ask you if you didn't make this statement to Dr. Chamberlain on September 20, 1938, as disclosed by the record that you had lost the sight of your right eye since July 10th, that you had not been able to see since July 10th?

A. I don't see how I could lose it all at once in one day, but I had not been able to see for some time before that.

Q. Out of the right eye?

A. Yes, out of the right eye.

Q. And that extended back to July 10th, as the notation says?

A. That might be all right, but I went to see Dr. Chamberlain in August, but they told me to come back, that he was busy with the school children.

Q. Well, now, then isn't it a fact that the vision of your right eye had disappeared on about July 10, 1938?

A. It probably is."

Subsequently to September 20, 1938, plaintiff did not return to Dr. Chamberlain, but on March 21, 1939, consulted Dr. J.E. Weeks, another specialist in the treatment of diseases of the eye, who diagnosed plaintiff's malady as glaucoma.

Plaintiff charges that defendants, acting at all times by Dr. Chamberlain during all the time above mentioned, failed to make the usual tests of plaintiff's eyes for glaucoma and neglected and failed to diagnose correctly plaintiff's illness, and failed and neglected to treat plaintiff's eyes for glaucoma; and that, if defendants had exercised ordinary reasonable care, skill and judgment, said disease would have been detected by them and plaintiff's eyesight saved by an operation to relieve the tension of the eyes.

Defendants assign the following errors:

1. That the motion for involuntary nonsuit should have been granted.

2. That the motion for a directed verdict should have been granted.

3. That the court should have given defendants' requested instruction taking away from the jury any injury or damages to the right eye, because of the statute of limitations, and because there was no evidence that plaintiff had lost the sight of the right eye on account of glaucoma.

4. That the verdict is excessive and given under the influence of passion and prejudice.

The first two assignments may be properly considered together. These two assignments of error are based upon the contention that there is no competent evidence that at the time plaintiff was treated by Dr. Chamberlain, plaintiff was suffering from glaucoma; or that Dr. Chamberlain was careless or negligent in failing to discover the existence of glaucoma; or that Dr. Chamberlain failed to give any treatment for glaucoma; or that, because of the failure to discover and treat glaucoma, plaintiff has been damaged.

Bearing in mind that six months and one day intervened between plaintiff's last visit to Dr. Chamberlain and his first call upon Dr. Weeks, we must review the record to determine whether there is any substantial evidence tending to prove that at the time Dr. Chamberlain was treating plaintiff, plaintiff was suffering from glaucoma.

Dr. Weeks testified that in cases of glaucoma, when the tension goes above the upper limit of normal, "the eye is in danger of gradually losing its vision, very gradually in the majority of cases". He also testified that when he examined plaintiff's eyes, he found the tension of the left eye somewhat above the upper limit of normal. Dr. Weeks also testified that in plaintiff's case there was a gradual development of glaucoma.

One of the defendants, Dr. Harry M. Hendershott, was asked, whether or not glaucoma is a comman disease in people past 50 years of age, to which he answered, "Fairly so".

The record shows that when Dr. Chamberlain first treated him plaintiff was over 50 years of age.

Dr. Hendershott was further questioned and made...

To continue reading

Request your trial
21 cases
  • Vaughn v. Langmack
    • United States
    • Oregon Supreme Court
    • March 11, 1964
    ...occur. In conclusion, our own cases of Hotelling v. Walther, 1942, 169 Or. 559, 130 P.2d 944, 144 A.L.R. 205, and Shives v. Chamberlain, 1942, 168 Or. 676, 126 P.2d 28, establish that this court has not heretofore adhered to the rigid rule that a cause must and can only accrue when the negl......
  • Stevens v. Bispham
    • United States
    • Oregon Supreme Court
    • May 13, 1993
    ...(3d ed. 1989). The rule originates from the "continuous treatment doctrine" in medical malpractice actions. In Shives v. Chamberlain, 168 Or. 676, 685, 126 P.2d 28 (1942), this court held that, where there is continuous medical treatment, the statute of limitations should not begin until th......
  • Tessier v. United States
    • United States
    • U.S. Court of Appeals — First Circuit
    • July 31, 1959
    ...by the parties but few are really in point. If the alleged negligence were in misdiagnosis or mistreatment, as in Shives v. Chamberlain, 1942, 168 Or. 676, 126 P. 2d 28; Williams v. Elias, 1941, 140 Neb. 656, 1 N.W.2d 121; Peteler v. Robison, 1932, 81 Utah 535, 17 P.2d 244; Hotelling v. Wal......
  • Van Lom v. Schneiderman
    • United States
    • Oregon Supreme Court
    • September 27, 1949
    ..."in its entirety" simply because the court thinks that the verdict is too large. Our attention is also called to Shives v. Chamberlain, 168 Or. 676, 687, 126 P. (2d) 28, a malpractice case, in which the court said, in answering a complaint that the verdict was "As to the contention that the......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT