Flowerdew v. Warner

• Decision Date: 23 December 1965
• Docket Number: No. 9520,9520
• Citation: 90 Idaho 164,409 P.2d 110
• Parties: Lester G. FLOWERDEW, Plaintiff-Appellant, v. Wendell S. WARNER, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 110

409 P.2d 110

90 Idaho 164

Lester G. FLOWERDEW, Plaintiff-Appellant, v. Wendell S. WARNER, Defendant-Respondent.

No. 9520.

Supreme Court of Idaho.

Dec. 23, 1965.

Reginald R. Reeves, Idaho Falls, for appellant.

Holden, Holden & Kidwell, Idaho Falls, for respondent.

McFADDEN, Justice.

Plaintiff, Lester G. Flowerdew, the appellant herein, fell while carrying a battery, and immediately suffered pains in his back. He was treated by a naturopath, and about two or three weeks later, on April 19, 1960, consulted Dr. Wendell S. Warner, the defendant-respondent, an osteopathic physician. On the first visit, Dr. Warner examined appellant and took X-ray pictures of the pelvic and lumbar region of appellant's back. Dr. Warner stated his diagnosis of appellant's condition causing the pain as:

'The diagnosis is a thin fifth lumbar disc, injured fifth lumbar disc, degenerative fifth lumbar disc, fibrositis, lumbosacral and dorsal.'

After completing the examination and diagnosis, Dr. Warner treated appellant by traction and osteopathic methods, by having appellant lie on a table designed for that purpose. Dr. Warner described the table and its operation as follows:

'It's a table for treatment which is divided in the middle, approximately. The lower half of the table moves back and forth in intermittent fashion at the rate of about 17 to 18 tractions per minute. At the foot of this table, at the foot of the lower half of the table, is an extension for ankle straps and between the extension and the end of the table is a spring which operates and activates the scale, which is located just below that. Now this is intermittent traction, as I said, and is not steady at any time. To finish up the table, the upper half is removable away from the lower half to increase or decrease pull. It contains and holds a harness. The abdominal harness, which fastens around the lower abdomen below the--above the level of the crest of the ilium, and the lower half--the lower edge of the strap crosses above the belt line. And this abdominal strap is fastened to the table by long straps attached to the head of the table- --the head of the upper leaf of the table.'

Dr. Warner continued his care of appellant twice a week, by giving him a total of eleven additional osteopathic treatments, consisting of manipulation, heat treatment, application of tension, and on the last two occasions with x-ray treatment.

Appellant instituted this action seeking damages for alleged malpractice of the respondent. Appellant's amended complaint consisted of three counts,--the first count being based on an oral agreement that respondent would cure appellant, alleging specific failures of the respondent as constituting negligence; the second count, on an allegation that respondent was engaged in the practice of medicine although not licensed as a physician and surgeon, and that he failed to exercise the skill ordinarily exercised by competent physicians in the area; the third, that the doctrine of res ipsa loquitur was applicable.

Respondent's answer constituted a general denial of the allegations of the appellant's amended complaint, and set forth as an affirmative defense that he possessed and exercised the degree of care exercised by osteopathic physicians in like communities, and as a further defense, alleged that there was no causal connection or proximate cause between the respondent's acts and the appellant's alleged injuries.

On the issues thus framed, the cause was tried before a jury. At the close of the appellant's case in chief, the respondent, claiming appellant failed to prove his case as a matter of law, moved for a judgment of dismissal on all three counts. The trial court granted the motion as to the first and third counts, i. e., the first count pertaining to an alleged agreement to cure, and the third count pertaining to the doctrine of res ipsa loquitur.

At the termination of all testimony, respondent moved for a directed verdict as to the second count, which the trial court granted, and entered judgment for respondent on the directed verdict. This appeal is from the judgment.

Appellant claims the trial court erred in granting respondent's motion to dismiss made at the close of the appellant's case, as to the first and third counts; also, in granting respondent's motion for a directed verdict as to the second count; by other assignments appellant questions the trial court's rulings on certain objections presented by respondent as to testimony sought to be elicited from two doctors and from the appellant himself.

As to the first court, the evidence fails to sustain the contention that respondent orally agreed he would cure appellant. Moreover, in the absence of a specific agreement, an agreement of a practitioner with his patient is one for services and treatment, not for a particular result. Riley v. Layton, 329 F.2d 53 (10th Cir. 1964); Marsh v. Pemberton (1959), 10 Utah 2d 40, 347 P.2d 1108; 41 Am.Jur. 198, Physicians and Surgeons § 79. No state of facts is disclosed which can remotely be considered as establishing any agreement or warranty to cure as was presented in the following cases where such an agreement is discussed: Noel v. Proud (1961), 189 Kan. 6, 367 P.2d 61; Safian v. Aetna Life Ins. Co., 260 App.Div. 765, 24 N.Y.S.2d 92 (Sup.Ct.1940), aff'd 286 N.Y. 649, 36 N.E.2d 692 (1941). There being no evidence to support a contract to cure the trial court did not err in dismissing this count.

Furthermore the record does not disclose any testimony that the treatment given, diagnosis made, or use of traction was not in full accord with the standards of practice of an osteopathic physician in the community. Aside from Dr. Warner, no other osteopathic physician was called to testify as to the standards of practice to be maintained by an osteopathic physician.

During appellant's case in chief, three other physicians were called as witnesses. One was a physician and surgeon specializing in neurosurgery, who had requested a myelogram, which was performed in April, 1961, and who performed the operation upon appellant; another was a physician and surgeon who had examined and treated appellant for tenderness in the abdomen. The other physician was a specialist in radiology, to whom appellant was referred in August, 1960, by the neurosurgeon for an x-ray examination of appellant's back, and who performed the myelogram in April, 1961. None of these physicians claimed to be familiar with the standards of practice of an osteopathic physician.

The general rule is that a practitioner of one of the healing arts, while remaining within the scope of his field of practice, is entitled to have the standard of treatment he gave a patient tested by the rules and principles of the school of medicine to which he belongs, and not by those of some other school. Klimkiewicz v. Karnick (1962), 150 Colo. 267, 372 P.2d 736; Bolles v. Kinton (1928), 83 Colo. 147, 263 P. 26, 56 A.L.R. 814; Wilkins' Adm'r v. Brock (1908), 81 Vt. 332, 70 A. 572; 41 AmJur. 203, Physicians and Surgeons § 85; 70 C.J.S. Physicians and Surgeons § 44, p. 952; Annot.: 31 A.L.R. 830; 19 A.L.R.2d 1193.

The trial court did not err in dismissing the first count of appellant's action, inasmuch as the evidence failed to support the allegations of that count.

Nor did the trial court err in dismissing the third count based upon the doctrine of res ipsa loquitur. During the appellant's case in chief, under the provisions of I.R.C.P. 43(b), he called as a witness the respondent, who testified as to the treatment he afforded the appellant, and that in his opinion appellant was suffering from a degenerative fifth lumbar disc. This diagnosis was based on the result of examination, manipulation, and x-rays taken by respondent of appellant's lower spine.

Respondent further testified that he did not take a myelogram of the spine to determine any other difficulties. His treatment of the appellant, consisted of manipulation, heat treatments, use of tension, and on the last two treatments, the use of x-ray. The tension used varied from 25 pounds to a maximum of 160 pounds, applied by means of a table upon which appellant would lie, with his feet in straps, and a strap over his abdomen. The length of time that the maximum tension would be applied would be only a few seconds and then decreased.

Appellant asserts that the doctrine of res ipsa loquitur is applicable in this case, and that the trial court erred in dismissing his third count, and erred in directing the verdict for respondent. Appellant contends that there was excessive traction used upon the appellant by the respondent, and that as a consequence the injuries he is now suffering resulted from the excessive traction. He points to the fact that the appellant was bound to respondent's stretching table, that he did not know what the respondent was doing, and that the instrumentality causing the injury was solely under respondent's control and hence the doctrine of res ipsa loquitur is applicable. With this contention we cannot agree.

This court in the case of Hale v. Heninger, 87 Idaho 414, 393 P.2d 718, discussed the applicability of the doctrine of res ipsa loquitur in malpractice cases. There this court pointed out that for the doctrine to be applicable it must be proven (1) that the agency or instrumentality causing the injury is under the control and management of the defendant, and (2) that the circumstances must be such that common knowledge and experience would justify the inference that the accident is of a kind which normally does not occur unless...