Goldfoot v. Lofgren

• Decision Date: 17 March 1931
• Parties: GOLDFOOT v. LOFGREN.
• Court: Oregon Supreme Court

296 P. 843

135 Or. 533

GOLDFOOT v. LOFGREN.

Supreme Court of Oregon

March 17, 1931

Department 1.

Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.

Action by Rose Goldfoot against Mabel W. Lofgren, doing business as the Weatherly Building Surgical Hospital. Judgment for plaintiff, and defendant appeals.

Affirmed.

The complaint avers that the defendant, who operates a small private hospital in Portland, so negligently attended to the plaintiff's care, after her services had been engaged and the plaintiff had been subjected to a surgical operation for the removal of her tonsils, that infected blood from the incisions was aspirated into plaintiff's lungs, causing two large abscesses to form therein. Specifically the complaint charges defendant with negligence in the following particulars: (1) Failure to provide a competent nurse for the care of the plaintiff; (2) failure to give the plaintiff proper care and attention; (3) failure to prevent the insufflation of infected matter into the lungs; (4) neglect to supervise the plaintiff, while she was recovering consciousness, by keeping her lying upon her side with her head in a sufficiently low position so as to cause the blood nowing from the incisions and vomited from her stomach, to ooze out of her mouth; and (5) permitting the plaintiff to remain unattended for long periods of time while still unconscious. The answer admits that the defendant operated a small surgical hospital, "and that in the said operation a considerable time was necessary and during said time a considerable amount of blood flowed from the point of the severed tonsils and much of said blood was swallowed by plaintiff, causing her to become nauseated and to vomit, and that some of the blood from said source was breathed or drawn into plaintiff's lungs during the time of said operation that plaintiff's tonsils were infected and diseased and that the infection therein was conveyed to plaintiff's lungs through the fact that infected blood from said tonsils was breathed or drawn into plaintiff's lungs as aforesaid." It avers that the defendant received in her hospital patients only "where prior arrangements therefor" were made by the physician in charge of the patient, and that the defendant "usually gives to the cases brought to said hospital her personal services, and defendant denies that she held herself out as providing in said hospital skilled nurses for patients of various doctors." The answer, after denying that arrangements had been effected for the entry of the plaintiff into the hospital, denies all charges of negligence. From a judgment based upon a verdict, in favor of the plaintiff in the sum of $2,500, the defendant appealed, and presents eight assignments of error.

John S. Coke, of Portland (Griffith, Peck & Coke, of Portland, on the brief), for appellant.

E. M Morton and Robert L. Jewell, both of Portland (Morton & Littlefield, of Portland, on the brief), for respondent.

ROSSMAN, J.

The first assignment of error contends that the circuit court erred when it overruled defendant's objection to a hypothetical question submitted to two medical experts called by the plaintiff. The question purported to outline the history of the infection that developed in the plaintiff's lungs as it had previously been narrated by the plaintiff and her witnesses. This question is too long for quotation; but a sufficient understanding of its nature can be gained from the following synopsis of its more important recitals: It requested the witness to assume that the operation was performed while the plaintiff was under the influence of general anæsthetic; that, while her tonsils were being removed, she was lying upon her back upon an operating table so tilted that her head was lower than the rest of her body and her face was turned to one side so as to permit the blood to flow out of her mouth; no more bleeding than the normal amount occurred; the surgeon used sponges to stanch the flow of blood and to prevent it from entering her throat; no vomiting or coughing occurred during the course of the operation; when the plaintiff was removed to a bed in one of the other rooms of the hospital, her throat was dry of blood; the physician placed her upon her side upon the bed with her head in a lowered position, a pillow to her back; the nurse did not remain in the room with the plaintiff; a few moments later the plaintiff, while still under the influence of the anæsthetic, and while still unattended by a nurse, but while sitting up in the bed, had a vomiting spell, during which she expelled a clot of blood and that she "threshed about at times and at other times lay upon her back while the incisions were still bleeding." The objection to this question was thus expressed:

"The witness is not competent to testify upon that question. The question does not contain a correct basis, as a hypothetical question, and does not correctly state the facts proven, and that the question is incompetent, irrelevant and immaterial; and furthermore, that the question calls for an answer from this witness which involves the very thing the jury is called upon to determine; it calls for the opinion of the witness as to what was the cause of the alleged damage.

Now, that is a question for the jury, and not for this witness, and we think it is improper on that ground."

The question concluded with the inquiry: "State whether in your opinion the abscesses would be likely to have been caused by the infected blood drawn into the lungs." The first witness replied: "I would say yes, due to the fact that. * * *" Dr. Bueermann replied: "Certainly one is led to the conclusion--cause and effect--that the abscesses in this particular hypothetical question that you mention must be due to the factors preceding the abscesses, in this particular instance, the aspiration of blood or mucus." Each witness, after he had replied to the aforementioned question, was asked: "Having in mind the same facts which you have been asked to assume about this patient, state when in your opinion, the aspiration of blood into the patient's lungs would be most likely to have occurred." Substantially the same objection was made to this question as to the preceding one. The first witness replied that it was "most likely" to have occurred in the post-operative period while "the patient is coming out from under the anæsthetic" and is "struggling around and when the vomiting, due to the anæsthetic, occurs." The second witness, after explaining that the bronchial tubes, being very sensitive to any extraneous foreign material, cause paroxysms of coughing to occur the moment any such substance is inhaled into them, expressed the belief that the absence of coughing during the operation, but its presence when the patient was struggling about on the bed, was a strongly persuasive circumstance indicating that at that time the infected blood entered the lungs. He concluded his reply as follows: "I would say that it most likely occurred during the time that this coughing spell was on, when the presence of blood and mucus was in the posterior pharynx, the back of the throat, and where the constant choking and straining in an attempt to get air there, and expel again that which had been taken in along with air occurred, and that, in my opinion, would be the period in this particular hypothetical case, when this occurred, and I believe it occurred during the postoperative period." Following the above reply Dr. Bueermann was asked whether the attention of a competent nurse, while the patient was recovering consciousness, would have prevented the entry of the infected blood into the lungs. The defendant objected that the question was incompetent, irrelevant, and immaterial. The witness replied: "I believe the probabilities of any aspiration occurring would certainly be reduced to a minimum."

We do not believe that the defendant's objections pointed out to the circuit court any reason for holding the questions improper. The general objection, "incompetent, irrelevant and immaterial," is not a favorite of the law, and is sustained only when the question is obviously improper. Hamilton v. Kelsey, 126 Or. 26, 268 P. 750; Wallace v. Am. Toll Bridge Co., 124 Or. 179, 264 P. 351; and State v. Lee Wye, 123 Or. 595, 263 P. 60. Certainly the information sought by the aforementioned questions was not immaterial, and hence the questions were not subject to this objection. We come now to the portion of the objection which contended "the witness is not competent to testify." Each witness in support of his competency testified to his familiarity with tonsillectomies, which we understand is the medical title applied to this type of operation. Dr. Phillips, one of the two, who was apparently a very young man, testified that he had performed "about 150 tonsillectomies;" the competency of Dr. Bueermann was not disputed. Whether an alleged expert possesses sufficient experience to render his opinions valuable, and therefore admissible, is generally intrusted to the discretion of the trial court; its rulings will not be disturbed on appeal, unless it appears that the discretion has been abused. Wigmore on Evidence (2d Ed.) § 561 (citing Oregon decisions).

We come now to the next subdivision of the objection, which argues that the hypothetical question "does not contain a correct basis * * * and does not correctly state the facts proven." The hypothetical question was predicated upon extensive preceding testimony which described the plaintiff's condition both before and after the tonsil operation, and it apparently endeavored to faithfully state the essence of this evidence as the hypothesis for the answer. Neither appellant's objection nor her brief points out any fact omitted by...