Gebhardt v. McQuillen
| Decision Date | 08 April 1941 |
| Docket Number | 45549. |
| Citation | 297 N.W. 301,230 Iowa 181 |
| Parties | GEBHARDT v. McQUILLEN. |
| Court | Iowa Supreme Court |
Appeal from District Court, Floyd County; M. H. Kepler, Judge.
Appeal from order overruling demurrer, motion to strike, and motions for more specific statement.
Affirmed in part; reversed in part.
Larson & Carr, of Charles City, and Senneff & Senneff, of Mason City, for appellant.
W. G Henke and R. W. Zastrow, both of Charles City, for appellee.
This is an appeal from ruling on defendant's demurrer, motion to strike, and motions for more specific statement.
The action was begun by plaintiff for alleged malpractice, and the petition therefor is in two counts. The first count alleges the fact of injury to plaintiff's right leg and hip, the employment of the defendant, and his careless and negligent treatment, setting out various particulars wherein defendant failed in his duty. This count was assailed by a motion for more specific statement, which motion was sustained except as to one ground: " That the defendant failed and neglected to place said fractured bone or bones into their natural position and condition" . The motion asking for more specific statement as to this specification was: " a. To so plead that the defendant may know whether plaintiff claims he did not attempt to put the bones in their natural position or, b. Whether he did make the attempt and failed to get them in their natural position, as from the specification it is wholly impossible for the defendant to know what the claim of the plaintiff is in such respect." To comply with the ruling of the court sustaining the motion as to other grounds of count 1 plaintiff filed an amendment to the petition, setting out with particularity the matters asked for in that part of the motion sustained. The only claim of error as to count 1 therefore, is the failure to require more specific statement of the ground above set out.
This motion, asking that plaintiff more specifically state the allegation of negligence therein, is, we think, not well taken. The allegation is as to the fact, and we think it sufficient to call attention to it, and it is in general explained by other allegations in the amendment to the petition. That he " failed and neglected" is alleged. Such failure and neglect, taken in connection with the other allegations, we hold is sufficient on which to introduce testimony of negligence in that respect.
The second count of the petition alleges the fact of injury, and that plaintiff did not know the nature or extent of her injuries; the employment of defendant as physician and surgeon; acceptance by him of such employment and his undertaking to heal plaintiff's injuries, and to do such other things in the treatment thereof as professional skill and care would require. The petition then recites: " Yet said defendant, not regarding his duties in the premises, so carelessly, negligently and unskillfully treated plaintiff's said injuries, that by reason thereof plaintiff, to a large extent, has lost the use of her right limb and hip without any fault or negligence on her part; that said right hip and limb have thereby suffered injuries which are permanent in character; that by reason thereof her right limb became shortened and plaintiff has suffered and will continue to suffer great pain; * * *." The petition sets out the amount of damage claimed, and recites: " Further, that the management and control of plaintiff's injuries and the medical and surgical attention given the same were exclusively vested in the defendant and that defendant at all time was possessed of superior knowledge and superior means of information pertaining thereto."
Count 2, above quoted, was assailed by demurrer and by motion to strike for the same reasons as are set out in the demurrer, and by motion, in the alternative, for more specific statement, all of which were overruled. Defendant did not elect to stand on the ruling on the demurrer and the motion to strike was exactly the same as the demurrer; hence no further consideration need be given to these.
The alternative motion for more specific statement as to ground 2 of the petition states: " The defendant moves the court to require the plaintiff to set forth with particularity each and every act of omission or commission upon which plaintiff relies and for which she claims defendant was responsible, setting out with particularity all acts done which she claims were negligent or unskillful and all things which the defendant failed to do which she claims were negligent and unskillful."
This count of the petition is based on the doctrine of res ipsa loquitur. So far as the pleadings are concerned, under such rule all that would be necessary would be the general allegation of negligence and injury. The meaning of the phrase is, " The thing speaks for itself", and it applies ordinarily where the circumstances speak for themselves in unexplained points of negligence. In cases such as the one under consideration, it is established by this court as the general rule, applied in many cases, that the result of the treatment is not in itself evidence of negligence or want of skill on the part of the physician or surgeon. Hair v. Sorensen, 215 Iowa 1229, 1235, 247 N.W. 651, 653, and cases cited therein, including Berg v. Willett, 212 Iowa 1109, 1111, 232 N.W. 821, 823. See also Thorpe v. Talbott, 197 Iowa 95, 196 N.W. 716, wherein it is held that the failure of a physician to make and maintain a perfect adjustment of a broken limb creates no presumption of negligence. Also it has been determined by this court, as shown by the opinion in Nelson v. Sandell, 202 Iowa 109, 111, 209 N.W. 440, 443, 46 A.L.R. 1447, that a physician does not impliedly guarantee that his treatment of a patient will be beneficial. The court there said: " It is not the mere failure to effect a cure that determines the practitioner's liability, * *."
It is evident, and it has often been held in this state, that the mere unsuccessful result of a treatment by a physician cannot, of itself, produce a liability on the part of the practitioner; and it would necessarily follow that the rule of res ipsa loquitur would not apply under such circumstances. It is true, as plaintiff alleges, that res ipsa loquitur is a rule of evidence and not a rule of pleading. Whitmore v. Herrick, 205 Iowa 621, 218 N.W. 334. It is also true that a petition containing a general averment of negligence states a good cause of action, and, if unassailed by motion such as we have in the instant case, plaintiff would be entitled to introduce such evidence of specific acts of negligence as might tend to establish his case. There are cases where the mere pleading and proof of an injury are sufficient to sustain a general allegation of negligence, but these are cases where the common experience of men is such that the result complained of would ordinarily follow. Such was the case in Van Huekelom v. Black Hawk Hotels Corp., 222 Iowa 1033, 270 N.W. 16, where the plaintiff's intestate received injuries causing his death as a result of a fall into an elevator shaft. No other reasonable conclusion than negligence could arise under the facts. And many other cases arise where the effect would reasonably or necessarily have been the result of negligence. In such cases no specific allegation ordinarily would be necessary.
The opinion of the court in the case of Harvey v. Borg, 218 Iowa 1228, 1230, 257 N.W. 190, 192, states the general rule as...
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