Douglas v. Bussabarger

Decision Date28 March 1968
Docket NumberNo. 37823,37823
Citation438 P.2d 829,73 Wn.2d 476
CourtWashington Supreme Court
PartiesJames L. DOUGLAS and Edna C. Douglas, husband and wife, Appellants, v. R. A. BUSSABARGER and Sterling Drug, Inc., Respondents.

Frank A. Peters, Tacoma Bernard B. Kliks, Portland, Oregon, for appellants.

Frank H. Roberts, Jr., Seattle, Stark & Wieland, Raymond, Allan R. Billett, Tacoma, for respondents.

FINLEY, Chief Justice.

This is a suit for damages for personal injuries brought against a doctor who performed an operation to repair a stomach ulcer of the plaintiff-wife, and against the drug company which supplied a portion of the anesthetic used in the operation. The plaintiff-wife will be referred to hereafter as though she were the sole plaintiff.

The results of the operation mentioned above were partly beneficial and partly disastrous to the patient. Her gastric symptoms were alleviated, but when the plaintiff recovered consciousness, her lower trunk had lost feeling or sense of touch, and she could not move her legs. The source of this disability centers around the spinal block administered to plaintiff to anesthetize her during the operation.

At the time of trial, although there had been some slight improvement in her condition, her right foot, bowels, and bladder were still in a state close to paralysis.

The jury returned a verdict in favor of both defendants, and plaintiff has appealed. We believe that plaintiff is entitled to a new trial as to defendant-Dr. Bussabarger because of certain errors which occurred at trial.

There is no substantial basis for appeal as to defendant-drug company. No question is raised regarding the correctness or purity of the substance which the company delivered to the hospital. The only question raised by plaintiff is whether the company should have labeled the drug's container so as to warn of possible dangers of use of the drug. However, even if we assume such labeling should have taken place, defendant-Dr. Bussabarger testified that he relied on his own knowledge of anesthetics and, in fact, did not read the labeling which was on the container. Thus, if defendant-drug company was negligent in not labeling its container so as to warn of dangers, this negligence was not a proximate cause of plaintiff's disability. We therefore will devote the remainder of this opinion exclusively to issues relating to Dr. Bussabarger.

The author of a recent article prefaced his remarks by saying:

(A)s the following consideration of medical professional liability in Washington indicates, no single group occupies a more favorable position at law than members of the medical profession. J. Steincipher, Survey of Medical Professional Liability in Washington, 39 Wash.L.Rev. 704, 710 (1964).

If we were to affirm the judgment of the trial court, not only would we perpetuate the advantageous position of the medical profession, but we would exaggerate and extend it unnecessarily. Three assigned errors in particular were highly prejudicial to plaintiff's case, and unnecessarily beneficial to defendant-Bussabarger.

The first of plaintiff's three assignments of error which we will consider relates to the trial court's instruction No. 11. This instruction reads as follows:

In this case the plaintiffs claim that the defendant Bussabarger was guilty of negligence in the professional services he performed for them; you are instructed that such matters involve technical professional questions and can only be proven by physicians and surgeons trained in their profession, and in Ascertaining in this case whether the defendant Bussabarger was guilty of malpractice, you are limited exclusively to the testimony of doctors. (Italics ours.)

In the absence of negligence so obvious that a layman can recognize it, Some medical testimony is necessary to support a finding that the doctor departed from the standard of reasonable care. Often this requirement becomes a difficult, almost insurmountable obstacle for plaintiffs in malpractice suits when they encounter what has been termed the 'conspiracy of silence.' 1 But none of the cases go so far as to require that malpractice be established Exclusively by the testimony of doctors. If the rule is to have any rational justification at all, it should be limited to the requirement that, in those cases in which negligence is not apparent, Some medical testimony is necessary to establish the proper standard of care. See Note, Malpractice and Medical Testimony, 77 Harv.L.Rev. 333, 334--36 (1963). This would satisfy the avowed rationale of the rule in that it would prevent laymen from speculating as to what is the standard of reasonable care in a highly technical profession. But certainly it is putting a heavy burden or impediment upon the victim of medical negligence to require him to show the specific acts of negligence (as well as all the other elements of his cause of action if the trial courts' words are to be taken literally) exclusively by the testimony of doctors when, frequently, as here, the only doctor who witnessed the allegedly negligent acts was the defendant.

In the instant case, defendant-Dr. Bussabarger testified that when a patient is undergoing a stomach operation, injection of spinal anesthesia above the second lumbar vertebra is not proper procedure. Plaintiff produced further expert testimony to show that if the needle insertion were too high, particularly if it hit the spinal cord, there likely would be a spasm or some immediate reaction from the patient. Plaintiff testified that she felt a sharp pain low in her back on the entry of the spinal needle, and complained of the hurt before losing consciousness. In addition, one of plaintiff's witnesses, Dr. Durkin, testified that he found some evidence of damage to her spinal cord. The trial court's instruction No. 11 did allow the jury to consider this evidence. However, it apparently was not enough, standing alone, to persuade the jury of defendant-Bussabarger's negligence.

Plaintiff attempted to provide additional evidence of negligence. Various hospital records admitted into evidence at trial showed the diagnosis of plaintiff's postoperative condition to be cord damage, which could well indicate improperly high injection of the spinal anesthetic. Other evidence was introduced by plaintiff which indicated that the amount of anesthetic injected was excessive. However, under the trial court's instruction No. 11, none of this additional evidence could be considered by the jury since It was not the testimony of doctors.

In our judgment, it was error for the trial court to give instruction No. 11 to the jury and thereby exclude from their consideration the additional evidence of negligence which plaintiff attempted to provide. Testimony of doctors is not the only type of evidence which may be considered by juries when deciding whether or not physicians are guilty of malpractice.

Defendant-Bussabarger cites Teig v. St. John's Hospital, 63 Wash.2d 369, 387 P.2d 527 (1963), to support his contention that negligence can be shown only by the testimony of doctors. In Teig, a doctor testified for the plaintiff as to what would be the reasonable standard of care in that particular situation and what would constitute a violation of that standard; but nurses' notes, X-rays, and hospital records were used to show the fact of the departure from the established standard of care. This court reversed a judgment for the defendant doctor and reinstated a verdict for the plaintiff.

It seems to us that the proper approach toward any evidentiary requirement of expert testimony was expressed in Byrom v. Eastern Dispensary and Casualty Hospital, 78 U.S.App.D.C. 42, 136 F.2d 278 (1943), in which the court had before it a jury instruction possibly less objectionable than the one before us. The instruction in Byrom read: "If you find from the testimony of the experts in this case that the treatment and conduct of defendant, Dr. Young, was in keeping with good and approved practice among physicians of like qualifications and experience * * * then your verdict must be for the defendant." In reversing a judgment for the defendants, the court said, 136 F.2d at 279:

We think this instruction went a little too far. It in effect told the jury to ignore all of the evidence in the case save that of the doctors who testified as experts * * *.

Unquestionably only experts are qualified to express an intelligent opinion as to what constitutes the proper method of treatment of a serious bone injury. But that their evidence should be accepted in exclusion of other evidence of conditions and results is contrary to the applicable rule, both in this jurisdiction and elsewhere. As was said in Cornell v. Sleicher, 119 Wash. 573, 205 P. 1059, 1061, the proposition that experts alone are qualified to testify as to the manner of treatment of a patient is 'sound only when soundly applied,' * * *.

We adopt the view indicated by the Byrom opinion. The jury should have been instructed that the need for expert medical testimony is limited to establishing the proper standard of care that defendant-Dr. Bussabarger should have followed. Furthermore, the jury should have been instructed to consider all the evidence in determining whether the defendant failed to meet that standard of care.

As has been observed, 'Except for malpractice cases (against a doctor, dentist, et cetera) there is no general rule or policy Requiring expert testimony as to the standard of care, and this is true even in the increasingly broad area wherein expert opinion will be received.' 2 F. Harper & F. James, The Law of Torts § 17.1, at 966 1956). It has also been observed that, 'nevertheless, the possible distinction (between malpractice actions and other tort actions) has not seemed to most courts sufficient to warrant a unique requirement of expert testimony for the purpose of providing general background facts * * *.' Note,...

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