Dishman v. Northern P. Beneficial Ass'n

• Decision Date: 08 May 1917
• Docket Number: 13813.
• Citation: 96 Wash. 182,164 P. 943
• Court: Washington Supreme Court
• Parties: DISHMAN v. NORTHERN PAC. BENEFICIAL ASS'N et al.

164 P. 943

96 Wash. 182

DISHMAN v. NORTHERN PAC. BENEFICIAL ASS'N et al.

No. 13813.

Supreme Court of Washington

May 8, 1917

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Action by Ora P. Dishman against the Northern Pacific Beneficial Association, the Northern Pacific Railway Company, and A. W Z. Thompson. Judgment of dismissal was entered as to the corporate defendants. From a judgment for plaintiff against the defendant Thompson, he appeals, and plaintiff cross-appeals from the judgment dismissing the defendant Northern Pacific Beneficial Association. Judgment against Thompson reversed, with direction to the superior court to dismiss the case, and judgment of dismissal as to the Beneficial Association, from which plaintiff was cross-appealed, affirmed.

Griffin & Griffin, of Seattle, for appellant.

C. H Winders, of Seattle, for respondents.

PARKER J.

The plaintiff, Ora P. Dishman, commenced this action in the superior court for King county seeking recovery of damages from the Northern Pacific Railway Company, the Northern Pacific Beneficial Association and Dr. A. W. Z. Thompson, one of the surgeons of the Beneficial Association. The damages sought to be recovered are for alleged personal injuries suffered by Dishman as the result of malpractice and negligence on the part of Dr. Thompson in failing to properly treat the injured extensor tendons of Dishman's left hand and wrist. The Railway Company and the Beneficial Association were made defendants, and sought to be held liable to Dishman upon the theory that Dr. Thompson was acting as their agent in the treatment of Dishman in pursuance of the duty which it is claimed they each owed to him, resulting from monthly payments to the Beneficial Association from his wages as an employé of the Railway Company, entitling him to medical and surgical treatment as occasion might require. The case proceeded to trial before the court sitting with a jury, when at the close of the evidence introduced in Dishman's behalf a motion was made in behalf of each of the three defendants challenging the sufficiency of the evidence to support any recovery as against either of them. This motion was granted by the trial court as to the Railway Company and the Beneficial Association, and judgment of dismissal entered accordingly, and denied as to the defendant Dr. Thompson. The trial thereupon proceeded as against Dr. Thompson, and at the close of the evidence introduced in Dishman's behalf counsel for Dr. Thompson again challenged the sufficiency of the evidence to support any judgment as against him, and moved that the court so decide as a matter of law and enter judgment accordingly. This motion was by the court denied, the case was submitted to the jury, and a verdict rendered awarding damages in Dishman's favor and against Dr. Thompson. The sufficiency of the evidence was again challenged by counsel for Dr. Thompson by motion timely made for judgment notwithstanding the verdict, which motion was by the court denied, and judgment thereafter rendered in accordance with the verdict. Dr. Thompson has appealed from this judgment, claiming he is entitled to judgment absolving him from liability as a matter of law, or in any event that he is entitled to a new trial. Dishman has cross-appealed from the judgment of dismissal as to the Beneficial Association, claiming that the court erred in its judgment of dismissal as to the Beneficial Association, and that he is entitled to a new trial as against it. No appeal is taken from the judgment of dismissal as to the railway company.

On December 25, 1914, while in the employ of the Railway Company as a brakeman, Dishman was severely injured. He was standing on the stirrup of a freight car, holding to one of the grabirons above, his wrist resting on the iron, and his left hand down between it and the side of the car, when his foot slipped off the stirrup, resulting in the weight of his body forcing his wrist down upon the iron, injuring the carpal bones of his wrist and the tendons on the back of his wrist and hand. The severity of the injury evidently resulted from the fact that his hand was held between the grabiron and the side of the car, so that his wrist was forced down upon the iron as a lever upon a fulcrum. The injury was first treated by Dr. Hoye, the local surgeon of the association at Auburn, soon after the accident occurred. Dr. Hoye immobilized the wrist and hand with splints and bandages, and upon examination of it a day or two later sent Dishman to the hospital of the association at Tacoma for treatment. Upon arriving at the hospital on December 28th Dishman was placed in charge of Dr. Thompson, who was one of the hospital surgeons, for treatment. Dr. Thompson then removed the bandages, and took an X-ray photograph of the wrist and hand, and again immobilized the injured parts. Dishman did not stay at the hospital for treatment, but went to his home at Auburn of his own accord, being entitled to remain at the hospital for treatment if he so desired, but choosing to go to his home and be treated as an outside patient, returning to the hospital from time to time for treatment. He went to the hospital several times for treatment up until February 25th, two months following the accident. During these visits Dr. Thompson re-dressed the injury several times and took additional X-ray photographs of the wrist and hand, giving Dishman liniment, with directions for its use. Dr. Hoye redressed the injury at Auburn two or three times during these two months, though he was not the physician having charge of the case.

Dishman, becoming dissatisfied with the treatment received, did not go back to the hospital after February 25th, but went to Dr. Silliman, at Seattle, who thereafter had charge of the case. On January 25th, evidently for the first time, it was discovered that one or two of the carpal bones were broken. This was dimly shown by the X-ray photographs, but was apparently overlooked up to that time. No portion of the outer flesh or skin of the wrist or hand was broken, or became broken, at any time during the two months' treatment by Dr. Thompson. The result of the injury was such that Dishman, while under Dr. Thompson's care, could not raise his hand or extend it backward beyond the projected line of the forearm, and it was with some difficulty that he could extend it even in a straight line with his forearm. This weakened condition of the hand and wrist, it is contended in Dishman's behalf, was caused by the rupture and severance of the extensor tendons, being those tendons on the back of the hand and wrist which enable one to open and extend the hand backward, even beyond the projected line of the forearm, when the wrist and hand are in a normal healthy condition. As we proceed, it will appear that the several surgeons who testified upon the trial do not agree in their opinions as to the extensor tendons being severed.

The alleged negligence in the treating of Dishman's hand and wrist during the two months following the accident, upon which Dishman rests his right to recover damages, is stated in his complaint as follows: 'That when the plaintiff arrived at said hospital for surgical treatment the defendants wrongfully, carelessly, and negligently failed, neglected, and refused to perform any surgical operation upon plaintiff's left wrist to bring the ends of the broken tendons together, and wrongfully, carelessly, and negligently failed, neglected, and refused to perform any surgical operation upon plaintiff's left wrist, to suture or in any manner to fasten the ends of the broken tendons together, and wrongfully, carelessly, and negligently failed to do anything whatsoever to afford the plaintiff any relief whatsoever from the condition he was then in, but wrongfully, carelessly, and negligently allowed the plaintiff's left wrist and extensor tendons thereof to remain without any treatment of any kind whatsoever, and that thereafter for two months, during all of which said time the defendants had complete control of the plaintiff and complete control of the care and treatment of the plaintiff's left wrist, the defendants did not, nor did either or any of them ever, do anything whatsoever to benefit the plaintiff's left wrist or tendons thereof, excepting the application of bandages and liniment to the surface, which was wholly ineffective, afforded no relief or benefit whatsoever to the plaintiff, or to his injured left wrist. That immediately after the time the plaintiff was injured, and at all times during the time the plaintiff remained at the hospital of the defendant Northern Pacific Beneficial Association, the defendants and each of them knew, or by the exercise of reasonable care the said defendants would have known, of the rupturing and severing of the said extensor tendons of plaintiff's left wrist, and that during all of said time the defendants and each of them knew that the only proper treatment for the injured wrist of the plaintiff was by bringing together the broken ends of the said tendons and the suturing and securely fastening the same.'

This is followed by allegations in substance that, had the wrist and hand been operated upon within a few days following the injury and the severed tendons brought together and sutured the wrist and hand would have been in a short time rendered strong and useful, that Dr. Thompson's failure to so operate upon the wrist and hand has rendered them useless, that they will always remain so, and that because of the lapse of time the extensor tendons have so shrunken and lost their vitality that it has become impossible to unite and suture them. That the issue is narrowed to the question of Dr. Thompson's negligence in failing to operate upon the hand...