Crewse v. Munroe
| Decision Date | 05 October 1960 |
| Citation | 224 Or. 174,355 P.2d 637 |
| Parties | Guy CREWSE, Appellant, v. Walter R. MUNROE, Respondent, and Board of Hospital Trustees of the Diocese of Oregon, a corporation, Defendant. |
| Court | Oregon Supreme Court |
Clifford B. Olsen, Portland, argued the cause for appellant. With him on the brief were Anderson, Franklin & Jones, Portland.
Cleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Hart, Rockwood, Davies, Biggs & Strayer, Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN, and KING, JJ.
This is an action to recover damages for personal injuries. The plaintiff was a patient of the defendant, a practicing physician, and claims his injuries are due to negligence. The claim of malpractice is based upon the administration by the defendant of an anesthetic. At the close of the plaintiff's case the defendant moved for an involuntary nonsuit, which was granted, and the plaintiff appeals.
Since the motion for an involuntary nonsuit challenges the legal sufficiency of the plaintiff's evidence, we must consider his evidence in a light most favorable to him. Phillips v. Colfax Co., Inc., 195 Or. 285, 243 P.2d 276, 245 P.2d 898.
The record discloses plaintiff was suffering from hemorrhoids; that he submitted himself to the defendant for a hemorrhoidectomy; that an anesthetic was administered and the operation performed; that following the operation the plaintiff was paralyzed from the waist down and suffered injuries that are probably permanent; that the paralysis of plaintiff is due to arachnoiditis, an inflammation of the arachnoid membrane. This membrane is located immediately within the dura, the heavy outside covering of the spinal canal.
The record further discloses that in administering the anesthetic in question the defendant's object was to anesthetize the areas supplied by the motor and sensory nerves stemming from the sacral and lumbar regions (the lower portion of the back). The desired result may be accomplished either by administering an anesthetic in the sacral canal, which is located between the coccyx (tailbone) and the subarachnoid space, or by administering an anesthetic in the subarachnoid space, which contains the spinal cord. The subarachnoid space begins a few inches above the coccyx and continues up the backbone toward the head. The former procedure is called a 'caudal block'; the latter, a 'spinal.' Different strengths and types of drugs are used for each. The defendant stated that he intended to and did administer a caudal block in the instant case. The use of the caudal block is good medical practice. A caudal block anesthetic is to operate 'extra dural,' that is, it is not intended that the injected fluid should enter the subarachnoid space.
It in the contention of the plaintiff that the negligence of the defendant consisted of directly introducing into the subarachnoid space the caudal anesthetic which induced the arachnoiditis. It is admitted by the plaintiff that there is no direct evidence that the defendant did inject the anesthetic into the subarachnoid space. The plaintiff, however, contends that the circumstantial evidence is sufficient to establish a presumption of this fact. Clemens v. Smith, 170 Or. 400, 134 P.2d 424. His argument may be summarized as follows:
(1) After the operation the plaintiff suffered from an arachnoiditis; (2) the arachnoiditis occurred because of the caudal anesthesia; (3) the defendant administered the anesthesia; (4) the direct introduction of a caudal anesthesia into the subarachnoid space is bad practice and can produce arachnoiditis; (5) therefore, a presumption may arise that the defendant was negligent and did inject this space.
The difficulty with this argument is that a physician is not a warrantor of a cure. His liability rests solely on accountability for his negligent or wrongful acts. Ritter v. Sivile, 206 Or. 410, 293 P.2d 211.
If the evidence in a case discloses two or more possible causes for an injury, for only one of which a defendant is responsible, liability does not attach unless the evidence discloses that the cause for which he is responsible is the more probable. Eitel v. Times, Inc., Or., 352 P.2d 485; Ritter v. Sivils, supra; Simpson v. Hillman, 163 Or. 357, 97 P.2d 527.
A physician who had examined the plaintiff was called by the plaintiff as an expert witness and testified on direct examination as follows:
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