Ball v. Mudge

• Decision Date: 16 April 1964
• Docket Number: No. 36844,36844
• Citation: 391 P.2d 201,64 Wn.2d 247
• Parties: Lynton L. BALL and Florence R. Ball, his wife, Appellants, v. Carl E. MUDGE, individually, and the marital community composed of Carl E. Mudge and Jane Doe Mudge, his wife, Bryce E. McMurry and Jane Doe McMurry, his wife, Bernard J. Goiney and Jane Doe Goiney, his wife, the partnership doing business as 'Doctors' Clinic of Lake City', Respondents.
• Court: Washington Supreme Court

Page 247

64 Wn.2d 247

391 P.2d 201

Lynton L. BALL and Florence R. Ball, his wife, Appellants, v. Carl E. MUDGE, individually, and the marital community composed of Carl E. Mudge and Jane Doe Mudge, his wife Bryce E. McMurry and Jane Doe McMurry, his wife, Bernard J Goiney and Jane Doe Goiney, his wife, the partnership doing business as 'Doctors' Clinic of Lake City', Respondents.

No. 36844.

Supreme Court of Washington, Department 2.

April 16, 1964.

Rehearing Denied June 12, 1964.

Vaughn E. Evans, Seattle, for appellants.

Williams, Lanza, Kastner & Gibbs, Joseph J. Lanza, Seattle, for respondents.

DENNEY, Judge. ^*

In this action, plaintiff Lynton L. Ball and Florence R. Ball, his wife, sought recovery covery of damages against Carl E. Mudge and wife, Bryce E. McMurry and wife, and Bernard J. Goiney and wife for alleged breach of warranty and negligence by defendant Carl E. Mudge in failing to successfully sterilize Mr. Ball in a vasectomy performed by Dr. Mudge. Verdict of a jury was for defendants an judgment was entered thereon. Plaintiffs, Ball, appeal.

Respondents are partners in the practice of medicine under the name of 'Doctors' Clinic of Lake City.' Dr. Mudge is the only respondent who took part in the treatment, so he will be referred to as though he were the only respondent.

Appellants first consulted Dr. Mudge on August 29, 1957, relative to the performance of an operation on Mr. Ball which would protect Mrs. Ball from a fourth pregnancy. Three children had been born to the appellants in as many years. All had been delivered by Caesarean section. Appellants were led to seek the services of respondent because of the expense incident to the birth and rearing of three children, and a suggestion by the obstetrician who delivered the last child that further deliveries by Caesarean section would be inadvisable. Dr. Mudge believed these to be valid reasons for performance of a vasectomy, a surgical procedure by which a section of the vas deferens, a tube which carries spermatozoa, is cut, and the severed ends sutured, thus preventing escape of sperm to a point where the male may impregnate the female. The appellants testified that Dr. Mudge told them that his method of cutting and suturing, rather than simply tying the cord, would insure sterility. Dr. Mudge, denied that he made such a statement.

The vasectomy was performed on November 1, 1957. Respondent did not advise nor make a post-operative test of semen to determine if Mr. Ball was producing sperm. Respondent told him that he could resume sexual relations with his wife after healing of an infection which occurred at the site of the operation. Mr. Ball resumed relations with his wife 4 to 6 weeks after the operation and continued thereafter without use of contraceptives. Mrs. Ball became pregnant in November, 1958, and was delivered of a normal, healthy daughter on August 10, 1959, by another Caesarean section, without any extraordinary or permanent adverse effect on Mrs. Ball's health.

Appellants asked for damages for expenses of delivery of the fourth child, care, maintenance and support of said child, pain, suffering and mental anguish of parents and loss of the services, society, companionship and consortium of the wife.

Respondent invites us to determine that the case should not have been allowed to go to the jury because the birth of a normal child without extraordinary pain, suffering or abnormal discomfort to the mother during pregnancy, delivery and recuperation, cannot be damage compensable in law. Two cases are cited by respondent which so hold in actions based on breach of contract and deceit. Christensen v. Thornby, 192 Minn. 123, 255 N.W. 620, 93 A.L.R. 570; Shaheen v. Knight, 11 Pa. Dist. & Co.R.2d 41. ¹ We decline this invitation because of our conclusion that the verdict for respondents must be sustained. Proceeding to a consideration of appellants' assignments of error should not be construed as an expression of opinion by this court on respondent's contention that the case should, or should not, have been resolved in his favor as a matter of law.

Additional facts will be noticed in considering appellants' assignments of error, the first of which is that the trial court erred in refusing to direct a verdict for appellants on the issue of liability. No error was committed in this regard for several reasons.

(1) The contention that the standard of practice in Seattle made post-operative testing mandatory was in dispute. Respondent testified 'Some doctors do and some don't.' Dr. Jack N. Nelson, a genitourinary surgeon with extensive experience in the performance of vasectomies, testified that he knew of no standard of practice in the community in that regard. the absence of an accepted standard of practice is due partially to the fact that the operation is usually performed in the physician's office rather than a hospital.

(2) The jury was justified in finding that any negligence or breach of warranty by Dr. Mudge was not a proximate cause of Mr. Ball's fertility in November, 1958, I year after the surgical procedure. All of the medical witnesses testified that a process known as recanilization, while rare, sometimes occurs after the operation and such cannot be prevented by the surgeon. Dr. Nelson testified that the history of frequent pregnancies showed Mr. Ball had a high degree of fertility before the operation, and that the sperm count disclosed by tests 1 1/2 years, and 4 1/2 years after the operation 'fits well into the picture of recanilization.'

(3) As reasonable presons, the jury may well have concluded that appellants...