Bailey v. Williams
| Decision Date | 12 January 1973 |
| Docket Number | No. 38531,38531 |
| Citation | 203 N.W.2d 454,189 Neb. 484 |
| Parties | Patricia BAILEY, Appellee, v. Ruth WILLIAMS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An order overruling a motion for judgment in accordance with a motion for a directed verdict may be reviewed on appeal although no verdict was returned by the jury.
2. A physician is required to exercise the care, skill, and diligence that physicians and surgeons in the same neighborhood and similar communities, engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients.
3. A physician is required to use reasonable skill and care in diagnosing the condition of a patient.
4. Malpractice may consist of a lack of skill or care in making the diagnosis as well as in the treatment of the ailment.
David A. Johnson, Omaha, for appellant.
Martin A. Cannon, Matthews, Kelley, Cannon & Carpenter, Omaha, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
This is an appeal in an action for malpractice. At the first trial the jury was unable to agree. The trial court declared a mistrial and ordered a new trial. The defendant appeals from the order overruling her motion for judgment in accordance with her motion for a directed verdict made at the close of the evidence and granting a new trial. Appellate review of such an order is authorized by section 25--1315.03, R.R.S.1943, although no verdict was returned. In re Estate of Fehrenkamp, 154 Neb. 488, 48 N.W.2d 421.
The plaintiff is 43 years of age. The defendant is a licensed physician who was practicing medicine in Omaha, Nebraska, in 1968. On Friday or Saturday, July 12 or 13, 1968, the plaintiff telephoned the defendant and stated that she had 'severe pain' under her stomach. The defendant said it was 'flu' and prescribed Darvon and Lomotil. On Tuesday, July 16, 1968, the plaintiff was feeling worse and called at the defendant's office. The defendant took a brief history and again prescribed drugs to alleviate the symptoms. There is a dispute as to whether the defendant made an examination of the plaintiff's abdomen at that time.
On Wednesday, July 17, 1968, the plaintiff again called the defendant's office but did not reach her until about 11 a.m. In the meantime the plaintiff had taken an enema. The defendant told the plaintiff she would send out some suppositories and a stronger prescription. At noon the plaintiff was taken to the hospital by her brother. At the hospital she was examined by an intern and another physician and a tentative diagnosis of a perforated bowel was made. An operation performed that afternoon disclosed a ruptured appendix.
The only issue here is whether the evidence presented a question for the jury. In determining the issue the evidence must be considered most favorably to the plaintiff, every controverted fact must be...
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