Eckleberry v. Kaiser Foundation Northern Hospitals

• Decision Date: 21 February 1961
• Citation: 84 A.L.R.2d 1327,359 P.2d 1090,226 Or. 616
• Parties: , 84 A.L.R.2d 1327 Dorothy O. ECKLEBERRY, Appellant, v. KAISER FOUNDATION NORTHERN HOSPITALS, a corporation, and Robert W. Reubendale, Respondents.
• Court: Oregon Supreme Court

Page 1090

359 P.2d 1090

226 Or. 616, 84 A.L.R.2d 1327

Dorothy O. ECKLEBERRY, Appellant, v. KAISER FOUNDATION NORTHERN HOSPITALS, a corporation, and Robert W. Reubendale, Respondents.

Supreme Court of Oregon, Department 1.

Argued and Submitted Dec. 7, 1960.

Decided Feb. 21, 1961.

Charles P. Paulson and Nels Peterson, Portland, argued the cause for appellant. With Charles P. Paulson on the briefs were Peterson & Lent, Portland.

Bruce Spaulding, Portland, argued the cause for respondents. On the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and KING, JJ.

PERRY, Justice.

The plaintiff brought this action to recover damages for a personal injury. The jury returned a verdict in favor of the plaintiff and against the defendant Kaiser Foundation Northern Hospitals, with a separate verdict in favor of the defendant Dr. Robert W. Reubendale. Judgments were entered on the verdicts. The defendant hospital then moved for a judgment non obstante veredicto, which was granted. The plaintiff has appealed, alleging prejudicial error in the trial of the case which resulted in a judgment for the defendant Reubendale, and error in the trial court's granting of the judgment non obstante veredicto.

The record discloses that plaintiff, a 43 year old housewife, fell from a stepladder while picking cherries. Her left arm struck the ground, resulting in a shattering of the bones in her left wrist, with some of the bone protruding through the flesh. Plaintiff was covered by a policy of health insurance issued by the defendant Kaiser Foundation Northern Hospitals (hereinafter referred to as defendant hospital). After plaintiff's injury she was taken to the Kaiser Permanente Clinic in Portland for first aid treatment, and thence transferred to the Kaiser hospital in Vancouver, Washington, where she was under the care of the hospital's orthopedic specialist, the defendant Dr. Reubendale. On plaintiff's arrival at the hospital she was taken to surgery where Dr. Reubendale cleansed the wound, cut away the devitalized tissue, and reduced the fracture, using wire to help hold the broken bones in position. He then placed the fractured wrist in a circular cast which extended above plaintiff's elbow. Plaintiff regained consciousness the following morning and complained of pain and pressure from the cast. Dr. Reubendale then split the cast slightly. The following day, a Saturday, in the morning Dr. Reubendale again saw the plaintiff and on this occasion further split the cast. During all of this time the plaintiff complained of pressure from the cast and severe pain. Dr. Reubendale next saw the plaintiff Sunday morning and at this time he noticed the capillary pulse was absent, the hand was dark in color and cold. He then removed the cast entirely, and exploratory surgery was tried to effect circulation of the blood. At this time a smear was taken from the wound. From an examination of this smear, the odor of the wound and the lack of blood circulation, the doctor was of the opinion gas gangrene had developed in the wound, and to save the life of the plaintiff it would be necessary to amputate the arm approximately three inches below the shoulder. This was done.

We will first consider plaintiff's assignments of error as they may affect the jury's verdict forn the defendant Dr. Reubendale.

The plaintiff assigns as error the action of the trial court in sustaining an objection which prevented the plaintiff from showing by her own medical expert that a certain medical treatise was a recognized standard medical work in the profession. The only conceivable purpose that could have been served was to either read excerpts from the work and ask plaintiff's own witness if he agreed with the text's statements, or to offer the book as independent evidence, or to impeach the defendant Reubendale and his medical experts.

To have permitted the identification for the first purpose would clearly have been error. Devine v. Southern Pac. Co., 207 Or. 261, 295 P.2d 201; Kern v. Pullen, 138 Or. 222, 6 P.2d 224, 82 A.L.R. 434.

The same must be said of the second purpose. It is almost a universal rule that extracts from medical works and treatises may not be used as probative evidence of the truth of the statements therein contained, because the author is not present and no opportunity exists to test the accuracy or weight to be given to the author's statements. See Annotation 65 A.L.R. 1102. This rule is not as to medical treatises and textbooks changed by ORS 41.670, which reads as follows:

'Historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, are primary evidence of facts of general notoriety and interest.'

In Gallagher v. Market St. Ry. Co., 67 Cal. 13, 15, 6 P. 869, 870, 56 Am.Rep. 713, the California court, in considering this question under a statute identical with ORS 41.670, stated:

'Under common-law procedure it was not competent to read books of science to a jury as evidence, because the statements therein contained were not only wanting in sanctity of an oath, but were made by one who was not present, and was not liable to cross-examination. For that reason they were excluded, notwithstanding the opinion under oath of scientific men that they were books of authority. Ashworth v. Kittridge, 12 Cush. [Mass.] 193; Com. v. Wilson, 1 Gray, 337 [Mass.]; Washburn v. Cuddihy, 8 Gray [Mass.] 430; Melvin v. Easley, 1 Jones, Law. (N.C.) 387; Carter v. State, 2 Ind. 617; Fowler v. Lewis, 25 Tex.Supp. 380.

'But it is contended that the common-law rule has been changed by the Code law. Section 1936, Code Civil Proc., makes 'historical works, books of science or art, and published maps or charts, when made by persons indifferent between the parties, * * * prima facie evidence of facts of general notoriety and interest;' and the question arises whether such books, which were not regarded before the adoption of the Codes as competent evidence, are not, by force of that provision of the Code, made competent. Doubtless the intention of that legislation was to extend the rule of evidence rather than restrict it. But the extension is limited by the terms 'facts of general notoriety and interest.'

'What are 'facts of general notoriety and interest?' We think the terms stand for facts of a public nature, either at home or abroad, not existing in the memory of men as contradistinguished from facts of a private nature existing within the knowledge of living men, and as to which they may be examined as witnesses. It is of such public facts, including historical facts, facts of the exact sciences, and of literature or art, when relevant to a cause, that, under the provisions of the Code, proof may be made by the production of books of standard authority. So, Mr. Justice Story, in Morris v. Lessees of Harmer's Heirs, 7 Pet. 558 speaking upon this subject, says: 'Historical facts of general and public notoriety may, indeed, be proved by reputation, and that reputation may be established by historical works of known character and accuracy. But evidence of this sort is confined in a great measure to ancient facts which do not presuppose better in existence; and where, from the nature of the transaction, or the remoteness of the period, or the public and general receiption of the facts, a just foundation is laid for general confidence. But the work of a living author, who is within the reach of the process of the court, can hardly be deemed of this nature.' And the appellate court of New York says: 'Such evidence is only admissible to prove facts of a general and public nature, and not those which concern individuals or mere local communities.' McKinnon v. Bliss, 21 N.Y. 210. See, also, Bogardus v. Trinity Church, 4 Sandf. ch. 633; Missouri v. Kentucky, 11 Wall. 395 .

'Such facts include the meaning of words and allusions which may be proved by ordinary dictionaries and authenticated books of general literary history, and facts in the exact sciences founded upon conclusions reached from certain and constant data by processes too intricate to be elucidated by witnesses when on examination. 1 Whart. Ev. § 667. Thus mortuary tables for estimating the probable duration of the life of a party at a given age, chronological tables, tables of weights, measures, and currency, annuity tables, interest tables, and the like, are admissible to prove facts of general notoriety and interest in connection with such subjects as may be involved in the trial of a cause. Wager v. Schuyler, 1 Wend. 553; Schell v. Plumb, 55 N.Y. 592; Mills v. Catlin, 22 Vt. 98; Donaldson v. [Mississippi &] Missouri R. Co., 18 Iowa 291.

'But medicine is not considered as one of the exact sciences. * * *'

To the same effect, under a similar statute, see: Bixby v. Omaha & C. B. Railway & Bridge Co., 105 Iowa 293, 75 N.W. 182, 43 L.R.A. 533; Union Pac. Ry. Co. v. Yates, 8 Cir., 79 F. 584, 40 L.R.A. 553.

As to the third conceivable purpose, that of cross-examination, it would at this point be entirely immaterial whether or not the writer of the medical work was considered an expert in his particular filed. This, for the reason that the use of such a scientific work is for purposes of cross-examination only, and is limited to works which the witness has either relied upon for his opinion, or works with which he is familiar. Devine v. Southern Pac. Co., supra; Tuite v. Union Pacific Stages et al., 204 Or. 565, 284 P.2d 333.

The plaintiff also assigns error in the sustaining by the trial court of defendants' objection during the cross-examination of Dr. Reubendale.

'Q. Doctor, are you familiar with the treatise entitled Fractures, Dislocations and Sprains, 5th Edition, 1951, By Drs. Key and Conwell, 5th Edition? A. Not the 5th Edition. The edition I read was published in 1941.

'Q. Now, is that a recognized medical treatise? A. It is a textbook that is...