Austin v. Sisters of Charity of Providence

• Decision Date: 21 July 1970
• Citation: 256 Or. 179,470 P.2d 939
• Parties: Elmer J. AUSTIN, Appellant, v. SISTERS OF CHARITY OF PROVIDENCE in Oregon, an Oregon corporation doing business as Providence Hospital, and Gregory B. Nichols, Respondents.
• Court: Oregon Supreme Court

Page 939

470 P.2d 939

256 Or. 179

Elmer J. AUSTIN, Appellant, v. SISTERS OF CHARITY OF PROVIDENCE in Oregon, an Oregon corporation doing business as Providence Hospital and Gregory B. Nichols, Respondents.

Supreme Court of Oregon.

Argued and Submitted Oct. 9, 1969.

Decided June 17, 1970.

Rehearing Denied July 21, 1970.

Nick Chaivoe, Portland, argued the cause for appellant. On the briefs were Lloyd F. Ryan, Jr., Peterson, Chaivoe & Peterson, and Fulop, Gross & Saxon, Portland.

George M. Joseph, Portland, argued the cause for respondents. With him on the brief were Morrison & Bailey, and Thomas E. Cooney, Portland.

Before PERRY,* C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN,** DENECKE and HOLMAN, JJ.

McALLISTER, Justice.

This is an action for personal injuries allegedly suffered by plaintiff in 1966 as a result of negligence on the part of an X-ray technician employed by the defendant Providence Hospital. Defendants are the hospital and Dr. Gregory B. Nichols, the radiologist in charge of the hospital's X-ray department. Plaintiff's complaint alleged that as a result of the technician's negligence he suffered injuries in the form of

'* * * acute strain of the muscles, nerves, ligaments and soft tissues of his low back causing severe pain to his low back, and pain radiating into his legs, which pain and discomfort continues to the present, and that said injuries have further caused him extreme mental anguish and permanent disability, * * *.'

He alleged both general and special damages, and prayed for judgment in the amount of $53,318.40. ¹ A trial was had to a jury, which returned a verdict for the full amount of the prayer. The defendants, whose motions for directed verdict had been denied, moved for a judgment notwithstanding the verdict, and in the alternative for a new trial. The motion for judgment n.o.v. was granted, and a judgment for defendants was entered. Plaintiff appeals from this judgment. Defendants have cross-appealed, contending that if it was error to grant the judgment n.o.v. their motion for a new trial should have been granted.

We think the entry of judgment for defendants notwithstanding the verdict was error, but that defendants are entitled to a new trial.

Plaintiff had a history of back injury. In 1960 he had injured his back and as a result underwent surgery--first a laminectomy for a ruptured disc, and later a spinal fusion. His recovery from the fusion operation was good and his doctor released him for work without restriction sometime in 1961. He testified that from 1961 to February of 1966 he held a number of jobs, mostly in lumber yards, which involved considerable lifting and physical labor. According to plaintiff, he performed his work without difficulty and had no back troubles referrable to his injury during this period. He entered Providence Hospital in February, 1966, for diagnostic studies related to possible stomach and gall bladder troubles.

Plaintiff testified that while he was lying on his back on a table in the hospital's X-ray department, an X-ray technician, in an attempt to position him, stood behind his head, grasped him beneath the arms, and pulled him. He further testified that this action caused him severe pain in his back at the time, and that the pain continued throughout his stay in the hospital and thereafter. Entries in the hospital records corroborated this testimony.

Dr. Cottrell, an orthopedic surgeon, testified that plaintiff consulted him about his back pain on March 2, 1966, less than ten days after the alleged injury. At that time, Dr. Cottrell's diagnosis was 'sprain of the muscle attachment, lower back.' His examination of plaintiff revealed severe muscle spasm, with no involvement of the nerve roots. Dr. Cottrell had performed the 1961 surgery on plaintiff's back.

Although there is evidence tending to show that plaintiff's back pain in 1966 could have been caused by other things, including a viral infection of the nervous system, we think there was ample evidence from which the jury could find that plaintiff suffered an injury to his back as a result of the incident on the X-ray table.

When a motion for judgment notwithstanding the verdict is made after a motion for a directed verdict has been denied, the evidence is to be viewed in the light most favorable to the party in whose favor the verdict was rendered. A judgment n.o.v. ought not to be granted if there is any substantial evidence to support the verdict. Roberts v. Coleman et al, 228 Or. 286, 288, 365 P.2d 79 (1961); United Finance Co. v. Kliks, 210 Or. 288, 291, 310 P.2d 1103 (1957).

Defendants point out that there is no medical opinion testimony of causation. We think that this is a case in which the jury could be permitted to find, without such medical testimony, that plaintiff's back sprain was caused by the incident in question. We said in Uris v. State Compensation Department, 247 Or. 420, 426, 427 P.2d 753, 756, 430 P.2d 861 (1967), that the 'distinguishing features' of such cases are:

'* * * an uncomplicated situation, the immediate appearance of symptoms, the prompt reporting of the occurrence by the workman to his superior and consultation with a physician, and the fact that the plaintiff was theretofore in good health and free from any disability of the kind involved. A further relevant factor is the absence of expert testimony that the alleged precipitating event could not have been the cause of the injury: * * *.' ²

All of these features are present in this case.

We also think there was evidence from which the jury could find that the X-ray technician was negligent. Dr. Nichols, the radiologist in charge of the hospital's X-ray department, testified that pulling a patient in the manner described by plaintiff was not a proper positioning technique. Asked about proper techniques, he testified:

'You slide them--you push them, you straighten them, but you do not yank or pull them.'

Because there was sufficient evidence to permit the jury to find that plaintiff had suffered an injury resulting from the negligence of defendants' employee, it was error for the trial court to enter judgment for defendants. There was, however, manifest error in submitting the case to the jury, and defendants' motion for a new trial should have been granted.

The difficulty stems from the evidence of the progress of plaintiff's back ailment following the injury. As mentioned above, Dr. Cottrell diagnosed a sprain. He instituted a course of conservative treatment, including physical therapy, with little or no success. From April 5 through April 23, 1966, plaintiff was hospitalized, under Dr. Cottrell's care, for bed rest and traction. After his discharge from the hospital, plaintiff was put in a body cast to relieve the pain. On May 5 he was admitted to the Portland Veterans Administration Hospital. The body cast was removed, and he was examined and received further conservative treatment there; he was fitted with a back brace and discharged on May 24, but he continued to receive treatment through the outpatient clinic. On August 29 he went to work (an earlier attempt to return to work had lasted only a week and a half because of his back pain), and worked until February of 1967 'pulling' veneer from a dry chain. Plaintiff testified that the veneer was not heavy, but that he nevertheless missed work 'several times' because his back was bothering him. On February 28, 1967, he was again admitted to the Veterans Administration Hospital. Various tests were performed, and on March 27, 1967, he had another operation on his back. This operation disclosed the existence of a condition known as 'pseudoarthrosis' or 'pseudarthrosis,' which was described to the jury as the failure of a bone fusion to join properly. The pseudoarthrosis was at the site of his 1961 fusion operation, and was corrected by a surgical refusion.

There was no evidence to...