Gill v. Selling

• Decision Date: 29 May 1928
• Citation: 125 Or. 587,267 P. 812
• Parties: GILL v. SELLING ET AL.
• Court: Oregon Supreme Court

267 P. 812

125 Or. 587

GILL v. SELLING ET AL.

Supreme Court of Oregon

May 29, 1928

Department 2.

Appeal from Circuit Court, Multnomah County; Louis P. Hewitt, Judge.

Action by Ruby S. Gill against Dr. Laurence Selling and another. Judgment for plaintiff, and defendants appeal. Reversed, and remanded for new trial.

F. S. Senn, of Portland (Senn & Recken and Omar C Spencer, all of Portland, on the brief), for appellants.

J. C McCue, of Portland, for respondent.

BELT J.

This is an action for damages arising out of alleged negligence of the defendants. The defendants are physicians and surgeons associated together in the practice of their profession at Portland, Or. The plaintiff was a patient of Dr. Selling. On March 31, 1926, she was given a thorough physical examination, including a blood test. Dr. Margason assisted in this work. She was instructed to return on the following Monday, April 5th, for report of the examination. It appears that another woman patient, upon whom a spinal puncture test was to have been made, had an appointment at the same time. The plaintiff returned at the designated hour, and, with several other patients, was waiting in the reception room. According to plaintiff's testimony, one of the staff nurses "came to the reception room and told me, without calling any name, to 'come on.' " Plaintiff complied. She says she asked the nurse, "What are you going to do?" and was advised, "Oh, that is nothing; we are going to give you a test something like a blood test." Plaintiff removed her clothing, was wrapped in a sheet and told to get on the operating table. She says the nurse told her "Dr. Margason will perform this operation." Plaintiff testified that she had no knowledge of the kind of operation or test to be performed, but followed the directions of those having her in charge. Dr. Margason made a spinal test in the usual manner by inserting a hypodermic needle about three inches below the spinal cord and withdrawing a small quantity of spinal fluid. There is no contention that the test was not done in a proper or skillful manner. It is conceded that it was not intended for the plaintiff, but was given through mistake, having been intended for another patient named Mrs. Stone. Dr. Selling, with commendable frankness, testified that such test was not necessary in plaintiff's case and was made as a result of "carelessness of the assistants in the office."

Plaintiff's action is based upon negligence, in that the defendants, without her knowledge or consent, unnecessarily and carelessly performed a spinal puncture upon her, under the mistaken belief that she was a woman by the name of Stone. Plaintiff claims that, as a result of this test, she has suffered and still suffers great physical and mental pain. She complains of severe headaches, nausea, and pains in her legs. Plaintiff asked judgment for compensatory and punitive damages aggregating $15,000.

Defendants admitted that they were associated together in the practice of medicine and surgery, but denied all other allegations of the complaint.

Verdict and judgment was had for plaintiff against both defendants in the sum of $6,250. There was no segregation of compensatory and punitive damages in the verdict. Defendants appeal.

It was not error to deny defendants' motion for nonsuit and directed verdict. To subject a patient, under such circumstances, to an admittedly unnecessary operation of this kind is, indeed, evidence of negligence. The argument that she consented to the spinal puncture does not appeal to us. Neither did it to the jury. Most patients place implicit confidence and trust in their physicians. They do what they are told to do. Questions by the patient are usually not in order. There is evidence that the plaintiff did not know the nature of the test to be performed. If such is true, how could she have given consent? We agree with the trial court that a prima facie case of negligence was established.

Did the court err in submitting to the jury the question of punitive damages? Whether the evidence was sufficient to go to the jury on this issue was a question of law for the court to determine. Rennewanz v. Dean, 114 Or. 259, 229 P. 372. It is for the jury, in the exercise of its discretion, to assess such damages after the court, as a preliminary matter of law, has held that it is a proper matter for its consideration. The mere fact in itself that the defendants may have been negligent does not warrant inclusion in the verdict of the jury of what is sometimes referred to as "smart money." Punitive or vindictive damages are assessed on the theory of punishment and as a deterrent effect on others who might commit similar wrongs. Ordinarily the person who has been injured must be content with full and complete compensation. It is only in exceptional cases of negligence that the law will permit punitive damages to be awarded. The rule was well stated by Mr. Justice Strahan in Day v. Holland, 15 Or. 464, 15 P. 858, and cited with approval in Hamerlynck v. Banfield, 36 Or. 436, 59 P. 712, as follows:

"Where a tort is committed with a bad motive, or so recklessly as to imply a disregard of social obligations, and generally when the defendant appears to have done the act wantonly, maliciously, or wickedly, the jury may, in their discretion, give exemplary damages."

In Rennewanz v. Dean, supra, it is said such damages are awarded where the defendant is grossly negligent. The court did not in the case last cited define "gross negligence." Since no precise meaning was given to the term, that case is not helpful in determining whether the question of punitive damages should have been submitted to a jury under this state of facts. In 20 R. C. L. 23, it is said:

" 'Gross' negligence, however, is not characterized by inadvertence, but 'by an absence of any care on the part of a person having a duty to perform to avoid inflicting an injury to the personal or property rights of another, by recklessly or wantonly acting or failing to act to avoid such injury, evincing such an utter disregard of consequences as to suggest some degree of intent to cause such injury.' "

Viewing the evidence in the light most favorable to plaintiff, and measuring the conduct of defendants by the standard of law announced, we reach the conclusion that the question of...