Fritz v. Horsfall, 29608.

• Decision Date: 01 November 1945
• Docket Number: 29608.
• Parties: FRITZ v. HORSFALL.
• Court: Washington Supreme Court

163 P.2d 148

24 Wn.2d 14

FRITZ v. HORSFALL.

No. 29608.

Supreme Court of Washington, En Banc.

November 1, 1945

Rehearing Denied Jan. 4, 1946.

Action by Harry Fritz against Frank L. Horsfall for malpractice. From an order granting plaintiff's motion for new trial after a verdict in favor of defendant, the defendant appeals.

Order reversed with instructions to dismiss the action.

BEALS C.J., and BLAKE, J., dissenting.

Appeal from Superior Court, King County; Howard M. Findley, judge.

Robert S. Terhune and Truscott & Bovingdon, all of Seattle, for appellant.

George F. Hannan, of Seattle, for respondent.

SIMPSON Justice.

This action was brought to recover damages for malpractice. The case tried to a court and jury resulted in a verdict in favor of the defendant.

The plaintiff presented a motion for a new trial upon several grounds. The motion was granted by a general order, without the giving of any reasons therefor. Defendant has appealed from the order to which we have just referred and assigns as error the granting of plaintiff's motion for a new trial.

The rule in those cases in which the order granting a new trial is general and does not specify the grounds upon which it was rested will not be disturbed by this court unless it finds that the evidence was not sufficient to warrant the court in submitting the case to the jury. The rule is well stated in the following excerpt from Henry v. Larsen, 19 Wash.2d 690, 143 P.2d 841, 842:

'Where the order granting the motion for a new trial is general and does not specify the ground or grounds upon which it was based, our inquiry is limited to the determination of the question whether the evidence was sufficient to take the case to the jury. Hobba v. Postal Telegraph Co. 141 P.2d 648. Unless we can say in such case that the verdict of the jury was, as a matter of law, the only verdict that could be rendered, the order granting a new trial must be affirmed.'

Under the above rule it becomes necessary to examine the statement of facts and the numerous exhibits admitted in evidence. In doing so it will be necessary to give full credit to the evidence favorable to respondent and the reasonable inferences to be deducted therefrom.

Before referring to the facts, however, it seems advisable to set out certain general rules of law governing actions for malpractice which are almost universally accepted by the courts and which are applicable to the present situation. We set them out as follows: (1) An individual licensed to practice medicing is presumed to possess that degree of skill and learning which is possessed by the average member of the profession in the community in which he practices and that he has applied that skill and learning with ordinary and reasonable care to those who come to him for treatment. (2) The contract which the law implies from the employment of a physician or surgeon is that the doctor will treat his patient with that diligence and skill just mentioned. Sawdey v. Spokane Falls & N. R. Co., 30 Wash. 349, 70 P. 972, 94 Am.St.Rep. 880. (3) He does not incur liability for his mistakes if he has used methods recognized and approved by those reasonably skilled in the profession. Wells v. Ferry-Baker Lumber Co., 57 Wash. 658, 107 P. 869, 29 L.R.A.,N.S., 426; Peddicord v. Lieser, 5 Wash.2d 190, 105 P.2d 5. (4) Before a physician or surgeon can be held liable for malpractice he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases or he must have neglected to do something required by those standards. 48 C.J. 112. (5) In order to sustain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown and, further, that the doctor failed to follow the methods prescribed by that standard. (6) It is not required that physicians and surgeons guarantee results, nor that the result be what is desired. Williams v. Wurdemann, 71 Wash. 390, 128 P. 639; Lorenz v. Booth, 84 Wash. 550, 147 P. 31; Dishman v. Northern Pac. Ben. Ass'n, 96 Wash. 182, 164 P. 943; Howatt v. Cartwright, 128 Wash. 343, 222 P. 496; Barker v. Weeks, 182 Wash. 384, 47 P.2d 1. (7) The testimony of other physicians that they would have followed a different course of treatment than that followed by defendant, or a disagreement of doctors of equal skill and learning as to what the treatment should have been, does not establish negligence. In such cases the court must hold that there is nothing upon which the jury may pass, the reason being that the jury may not be allowed to accept one theory to the exclusion of the other. Howatt v. Cartwright, supra; Kemp v. McGillivray, 129 Wash. 592, 225 P. 631; Hollis v. Ahlquist, 142 Wash. 33, 251 P. 871; Peterson v. Hunt, 197 Wash. 255, 84 P.2d 999. (8) Negligence on the part of the physician or surgeon by reason of his departure from the popular standard of practice must be established by medical testimony. Wharton v. Warner, 75 Wash. 470, 135 P. 235; Dahl v. Wagner, 87 Wash. 492, 151 P. 1079; Dishman v. Northern Pacific Ben. Ass'n, supra; Howatt v. Cartwright, supra; Brear v. Sweet, 155 Wash. 474, 284 P. 803; Jordan v. Skinner, 187 Wash. 617, 60 P.2d 697; Peterson v. Hunt, supra; Hoover v. Goss, 2 Wash.2d 237, 97 P.2d 689; Peddicord v. Lieser, supra; Crouch v. Wyckoff, 6 Wash.2d 273, 107 P.2d 339. The reason is that juries must be informed as to the facts or criterion upon and by which the standard of ordinary skill and ordinary care and diligence rests and is regulated by the medical profession. To supply the need, evidence may properly be introduced to show such facts. This evidence, from the very nature of the case, must come from men learned in the profession because other witnesses are not competent to give it. Jurors and courts are not in any way conversant with what is entirely peculiar to the practice of medicine and surgery. They may not arbitrarily determine the proper methods of treating an ailment--that is a medical question. Ewing v. Goode, C.C., 78 F. 442.

An exception is recognized in those cases in which negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Helland v. Bridenstine, 55 Wash. 470, 104 P. 626; Williams v. Wurdemann, 71 Wash. 390, 128 P. 639; Wharton v. Warner, 75 Wash. 470, 135 P. 235; Wynne v. Harvey, 96 Wash. 379, 165 P. 67; Swanson v. Hood, 99 Wash. 506, 170 P. 135; Jordan v. Skinner, 187 Wash. 617, 60 P.2d 697; Crouch v. Wyckoff, supra.

We deem it proper at this time to give a description of the gall bladder, its location, and the ducts connected therewith, as described in Vol. VII of Practice of Medicine, edited by Frederick Tice, M.D., published in 1944, p. 140:

'The gall bladder is a pear-shaped sac having a thin, flaccid wall and a capacity of from 30 to 50 cc. It is attached to the undersurface of the right lobe of the liver by a loose connective tissue network rich in lymphatics and small blood vessels. A peritoneal coat incompletely surrounds the gall bladder and is reflected over the surface of the liver, thus leaving an extraperitoneal surface which is in direct relation to the liver. In a variable percentage of cases--Judd placed it at 10 per cent--the gall bladder is completely surrounded by a peritoneal investment forming a mesentery-like attachment. According to Erdheim, this loose, leaf-like attachment may allow angulation and produce stasis or may predispose the organ to torsion.

'The gall bladder can be divided roughly into two parts, the fundus and the neck. The fundus is the sac-like portion which extends downward and forward from the neck and may extend beyond the border of the liver. The tip may be completely surrounded by a peritoneal coat. The neck of the gall bladder makes an acute angle with the fundus and points upward, thus forming a pouch which is known as Hartmann's pouch. The cystic duct is a direct continuation of the neck and extends downward, backward and to the left to form a Z-shaped contour. Its length is approximately 4 cm., although there is great variation. It may join with the common duct at practically a right angle, in which case it is very short. Again it may follow along the common duct for some distance and finally communicate with the latter at a very acute angle, forming a double-barrel gun arrangement. The diameter of the cystic duct is, as a rule, the narrowest of any of the extrahepatic ducts, varying from 2 to 4 mm., and its mucosa is thrown into five to twelve folds of a crescentic arrangement, the valves of Heister, which project into the lumen of the duct. * * *

'The intrahepatic biliary ducts unite within the substance of the liver to form the two major hepatic ducts, the right and the left. These two ducts, which are of about equal size, unite to form the common hepatic duct at a variable location, at times the junction being not over 0.5 to 1 cm. from their exit from the liver. The common hepatic duct extends downward and to the left to give off the cystic duct to the gall bladder. From this junction onward it is called the common duct. The common duct is from 7 to 8 cm. in length, 4 to 6 mm. in diameter and lies in the free border of the duodenohepatic ligament in close anatomic relation to the portal vein and the hepatic artery. It passes behind the descending portion of the duodenum, passing through a groove or furrow in the lateral surface of the pancreas. Occasionally the terminal end of the duct is completely embedded in the pancreas. It passes obliquely through the wall of the duodenum to empty into the bowel at the papilla. This terminal end of the common duct is in close anatomic and physiologic relation to the major pancreatic duct. These ducts may join to form a common ampulla...