Atkins v. Clein

• Decision Date: 13 March 1940
• Docket Number: 27823.
• Parties: ATKINS et ux. v. CLEIN et al.
• Court: Washington Supreme Court

100 P.2d 1

3 Wn.2d 168

ATKINS et ux. v. CLEIN et al.

No. 27823.

Supreme Court of Washington

March 13, 1940

Department 1.

Action by Nicholas A. Atkins and Marie A. Atkins, his wife, against Norman Ward Clein and Therese Clein, his wife and others, to recover damages for malpractice. There was a verdict for defendants, and, from an order granting plaintiffs' motion for a new trial, defendants appeal.

Affirmed.

SIMPSON J., dissenting.

Appeal from Superior Court, King County; Roger J. Meakim, judge.

Kahin, Carmody & Schramm, of Seattle, for appellants.

Kennett & Benton, of Seattle, for respondents.

MAIN Justice.

This action was brought to recover damages for malpractice. The cause was tried to the court and a jury, and resulted in a verdict in favor of the defendants. The plaintiffs moved for a new trial upon a number of grounds. The motion was granted on the specific ground, as recited in the order, that there had been error in the instructions. From the order granting a new trial, the defendants appealed.

The appellants Norman Ward Clein and L. Bradford Ostrom will be referred to as though they were the only parties on that side of the controversy. Both physicians specialize in the diseases of children. Dr. Clein testified specifically that he held himself out as a specialist in that line of practice. The respondents, Nicholas A. Atkins and Marie A. Atkins, his wife, are husband and wife, and in May, 1937, they were the parents of two children, a girl about two years old and a boy approximately nine months old. May 25, 1937, Mrs. Atkins telephoned Dr. Clein that her husband, daughter, and son were all sick, and desired him to come out to see them. Dr. Clein told her that he was unable to make the call, but would send Dr. Ostrom, who called at the house on that day and examined both the boy and girl, the husband being at work at the time. He found both children suffering from a condition which he diagnosed as a common cold. The boy was suffering from nausea, diarrhea, and an inflamed throat, and had temperature of 102. On the day following, the boy's condition was about the same, but, during the afternoon of May 28th, he became very much worse. His breathing was heavy and Dr. Ostrom was called to see him again that evening. When the call was made, the boy's heavy breathing had existed for four hours or more. It was of such a character that Mr. and Mrs. Atkins both testified that, when he was in an upstairs room in bed, his breathing could be heard downstairs. When the doctor arrived, he examined him and he had a temperature of 104.

What the doctor did and said on his first call is a matter in dispute between him and Mrs. Atkins. What he did and said on the second call is a matter in dispute between him and Mr. and Mrs. Atkins. The boy's condition was such that, when the doctor called the second time, he was asked to take him to the hospital, and, in reply to this, he said that the boy was not sick and all he needed was rest in bed. The following morning, or the 29th, Mr. and Mrs. Atkins telephoned the doctors that they were taking the boy to the hospital, and asked them to meet them there, which they did. When the boy got to the hospital, he was caused to be placed in an oxygen tent by Dr. Clein, where he remained. Later in the day, his condition became so bad that a throat specialist was called, and he performed an operation on his throat. The result was that the boy died two days later, or on the morning of May 31st.

The first question is whether there was an error in the instructions. To state the matter more particularly, in what is referred to as instruction No. 7, the jury were told that, when a specialist assumes to diagnose a patient's condition and treat him, the law requires that he possess that knowledge and that degree of professional skill usually possessed by specialists engaged in like practice in the same or similar communities. In other instructions, the jury were told that a specialist was held to that degree of care and skill used by physicians generally at the time and in the locality. That these instructions are in conflict there can be no question. A physician who holds himself out as having special knowledge and skill in the treatment of a particular organ or disease is bound to bring to the discharge of his duty to patients employing him as a specialist that degree of skill and learning ordinarily possessed by physicians who devote special attention and study to such organ or disease, practicing in the same community. 21 R.C.L. 387; 48 C.J. 1116.

The rule of the text has been recognized by this court in Sears v. Lydon, 169 Wash. 92, 13 P.2d 475. It is said, however, that the rule has heretofore been applied to a physician who specializes in the treatment of a particular disease or organ, and that it has not been applied to a group, such as a doctor who specializes in the treatment of children. It may be admitted that no case has been called to our attention where the rule has been applied to such a group. We see no reason, however, why a doctor who holds himself out as a specialist in the treatment of the diseases of children should not be held to the same degree of care that other doctors, practicing the same specialty in the same community, exercise. In our opinion, instruction No. 7 was correct.

It has frequently been held that, where instructions are inconsistent and contradictory, involving a material point in the case, their submission to the jury is prejudicial, for the reason that it is impossible to know what effect they may have had on the verdict. Mosso v. Stanton Co., 75 Wash. 220, 134 P. 941, L.R.A. 1916A, 943; Paysse v. Paysse, 84 Wash. 351, 146 P. 840; Babcock v. M. & M. Const. Co., 127 Wash. 303, 220 P. 803. There are other cases to the same effect, but the rule is so well-settled that there is no occasion here for assembling them.

It is further said that the trial court erred, even though the instructions were inconsistent, in granting a new trial, because the evidence was not sufficient to take the case to the jury. It is not necessary that a case of malpractice be proved by direct and positive evidence. It may be proved by a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable. Helland v. Bridenstine, 55 Wash. 470, 104 P. 626; Jordan v. Skinner, 187 Wash. 617, 60 P.2d 697; Gross v. Partlow, 190 Wash. 489, 68 P.2d 1034.

As already stated, the evidence as to what Dr. Ostrom did and said on each of his two visits is disputed, as to the first call, by Mrs. Atkins, and as to the second call, by both Mr. and Mrs. Atkins. In addition to this, some days after the boy had died, Mr. Atkins went to the office of the doctors and had a conversation with Dr. Clein, Dr. Ostrom being present. In this conversation, he made the statement that he had asked the doctor to take the boy to the hospital on the evening of the 28th, and that the doctor had said the boy was not sick, that all that he needed was rest in bed. It will be remembered that at this time the boy's temperature was 104, and his breathing was so heavy that it could be heard in a downstairs room. In reply to this statement, Dr. Ostrom said that it did not require a doctor to determine that a child, with a temperature of 104 degrees and breathing so heavily that it could be heard from an upstairs room to a downstairs room, was sick. Dr. Clein replied: 'I said that is a kind of silly statement, because if he had a temperature of 104 and somebody said he wasn't sick, I would think he was crazy. That is my opinion as a medical man.'

If the doctor made the statement that Mr. and Mrs. Atkins say that he made, it would seem clear that the question of malpractice was a question for the jury.

It is said, however, that there is no evidence from which the jury could find that the boy would have lived had he received proper treatment. The respondents were only required to prove that there was a greater probability that the boy would have lived, had he received proper treatment, than that he would have died. St. Germain v. Potlatch Lumber Co., 76 Wash. 102, 135 P. 804; Nelson v. Columbia Clinic, Inc., Wash., 96 P.2d 575.

Mrs. Atkins, when testifying, made the statement that, some days after the death of the boy, she had a conversation with a doctor who said that, if the boy had been taken to the hospital earlier, he would have lived, or something to that effect. On cross-examination, she was asked who the doctor was, and she named the throat specialist who performed the operation on the boy. This evidence went in without objection. Later, the doctor was called and unequivocally denied it. What Mrs. Atkins testified to was, of course, hearsay, but, inasmuch as it went in without objection, it was proper for the jury to consider it. State ex rel. Race v. Cranney, 30 Wash. 594, 71 P. 50; Beebe v. Redward, 35 Wash. 615, 77 P. 1052. The question was one for the jury. The trial court properly granted the motion for a new trial.

The order appealed from will be affirmed.

BLAKE, C.J., and MILLARD and ROBINSON, JJ., concur.

SIMPSON Justice (dissenting).

As I view this case, the evidence produced at the trial was not sufficient to permit a verdict for respondents. For this reason, questions relative to whether there was error in the instructions given are not controlling in the disposition of this appeal.

In the following cases we held that, if the evidence did not disclose facts sufficient to support a verdict for the proponent of the motion, it was error for the trial court to grant a new trial for irregularities committed in submitting the case to the jury: Grass v. Seattle, 100 Wash 542, 171 P. 533; Adams v. Anderson & Middleton Lumber Co., 124...