Hamilton v. Kelsey

• Decision Date: 26 June 1928
• Citation: 268 P. 750,126 Or. 26
• Parties: HAMILTON v. KELSEY.
• Court: Oregon Supreme Court

268 P. 750

126 Or. 26

HAMILTON v. KELSEY.

Supreme Court of Oregon

June 26, 1928

Department 1.

Appeal from Circuit Court, Multnomah County; T. E. J. Duffy, Judge.

Action by Olga Hamilton against R. C. Kelsey. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action against a physician in which the complaint charges him with malpractice and seeks damages. It is alleged that the defendant diagnosed plaintiff's ailment as the disorder commonly called gall stones, gave her some medicine and that, when this failed to relieve her, he advised her that an operation was necessary. Continuing, the complaint alleges that the defendant informed the plaintiff that such an operation would be of a slight nature, and could be readily performed in his office under a local anæsthetic. It avers that thereafter the plaintiff submitted herself to the defendant; that he made an incision into her abdomen examined her gall bladder, and discovered that she did not have gall stones, but proceeded with an exploratory operation. The complaint alleges that in the course of this further incision the defendant conducted himself in such a negligent manner that he brought about a rent in the plaintiff's transverse colon. The precise specifications of negligence alleged are: First, that he performed this operation in his office, where he lacked the proper facilities of light, assistants, anæsthetics, and instruments; second, that he failed to exercise the requisite degree of care; third, that he failed to ascertain the rent in the colon and remedy it when he could have done so had he exercised due care. The ill effects of the tear in the colon are set forth in detail, but, since no error is predicated on this phase of the case, we shall not review these allegations. The answer admitted that the defendant in his professional capacity had performed an operation upon the plaintiff, but denied all charges of negligence.

There are nine assignments of error; one arises out of the order of the court overruling a motion for a nonsuit; another arises out of a similar disposition of a motion for a directed verdict; the other seven are founded upon the receipt of evidence. Judgment below was for plaintiff; defendant appeals.

F. S Senn, of Portland (Senn & Recken, of Portland, on the brief) for appellant.

Paul R. Harris, of Portland (Davis & Harris, of Portland, on the brief), for respondent.

ROSSMAN J. (after stating the facts as above).

First, we shall determine whether the court erred when it denied the motions for a nonsuit and a directed verdict; these two assignments of error we shall consider together. Before the plaintiff could recover it was necessary that a preponderance of the evidence should establish that the defendant was negligent in one or more of the particulars set forth in the complaint, and that such negligence was the proximate cause of the injury to her physical condition of which she made complaint. Let us now ascertain whether the evidence supplied these two necessary elements. When the defendant entered upon his employment, there arose out of his undertaking a duty to use due care. Since the parties did not fix by contract the degree of care, the law implied that the defendant should employ ordinary care. The term "ordinary care" is quite complete in itself. But, if we may be permitted to elaborate, we shall state the physician's duty and undertaking in this language; his undertaking is not an absolute one to cure, not to restore a condition of good health; nor is he an insurer of the efficacy of his services. His undertaking is to exercise that degree of care, skill, diligence, and knowledge which is ordinarily possessed by the average of the members of his profession in good standing in similar localities. This is the generally accepted rule. Emerson v. Lumbermen's Hospital Ass'n, 100 Or. 472, 198 P. 231; Lehman v. Knott, 100 Or. 59, 196 P. 476; Hills v. Shaw, 69 Or. 460, 137 P. 229; Langford v. Jones, 18 Or. 307, 22 P. 1064; Williams v. Poppleton, 3 Or. 139. In the following cases and their annotations in the selected cases reporters, the foregoing rule is applied to a variety of situations. Dorris v. Warford, 124 Ky. 768, 100 S.W. 312, 9 L. R. A. (N. S.) 1090, 14 Ann. Cas. 605; Friend v. Kramer, 236 Pa. 618, 85 A. 12, Ann. Cas. 1914A, 272; Whitesell v. Hill, 101 Iowa, 629, 70 N.W. 750, 37 L. R. A. 830; Burk v. Foster, 114 Ky. 20, 69 S.W. 1096, 59 L. R. A. 277, 1 Ann. Cas. 304.

The lack of a successful result is not to be considered as evidence that the physician failed to exercise the requisite degree of care. Emerson v. Lumbermen's Hospital Assn., supra; Hills v. Shaw, supra. In determining whether the physician's treatment met the standard exacted by law, it is generally necessary to know what medical men ordinarily do under like circumstances. To secure this information, the opinion of medical men may be received. Emerson v. Lumbermen's Hospital Assn., supra, Lehman v.

Knott, supra. Having now ascertained the degree of care exacted by law of the physician and the general rules which should guide us in our inquiry, let us now ascertain whether there was any evidence to the effect that the professional services of this defendant failed to meet the law's requirements. In proceeding with our investigation, we must bear in mind that we are not authorized to weigh and appraise the value of the evidence. The Constitution of this state has limited our powers to that of detecting its presence. Substantial evidence upon any subject necessitates that the party favored by it was entitled to have the issue in support of which it was presented submitted to the jury.

The record contains evidence substantiating the following: That the plaintiff, a woman 30 years of age, who had always been in good health, experienced suddenly some severe pains in the right side of her abdominal section. After these pains had continued for 2 or 3 days, the services of the defendant were obtained. He advised the plaintiff that the cause of her pains was gall stones, and requested her to visit him at his office as soon as she was able to do so. Two or three days later, when she called, he took her to the office of the X-ray practitioner, and some plates were made. Upon the occasion of this visit the defendant gave her some medicine, saying that its use might dissolve the stones. The hoped for effect was not produced, however, and, when the plaintiff came to the defendant's office a day later, the surgical operation was performed which resulted in this action. Preceding the operation, the defendant had stated to the plaintiff and her husband that a surgical operation to remove gall stones was not serious, and that it could be readily performed in his office under the influence of a local anæsthetic. Plaintiff's husband testified that the defendant brought forth a medical book, and employed some of its recitals to corroborate the foregoing statement. Eight a. m. of June 3d the defendant proceeded with the operation. The plaintiff testified that she would have been willing to have gone to a hospital, but was persuaded by the defendant that this was unnecessary. The latter testified that he had never performed an operation in any of the public hospitals of Portland. His office consisted of a suite of four or nve rooms. In one of these was a surgeon's chair which could be placed in a reclining position for use as an operating table; over it hung an adjustable light. Before making the incision, the defendant administered to the plaintiff a local anæsthetic. After the incision had been opened, the plaintiff twice heard the defendant say to a nurse. who was assisting him, that there was "nothing in there." Shortly thereafter the plaintiff gave sufficient evidence of feeling pain that the defendant determined that he would administer a general anæsthetic. Ether was thereupon administered to the plaintiff, and she was unable to observe what occurred thereafter, until consciousness was restored to her. In the meantime the defendant sent to a store for an additional quantity of ether. Upon its receipt it was taken into the operating room. At about 5 or 6 o'clock p. m. the plaintiff was removed to her home in an ambulance.

Prior to the operation, the defendant informed the plaintiff that the operation would cause "a very small incision only about an inch long," but when she returned home the cut was about six inches in length and about four inches deep. Two days later, after she had digested a small quantity of food, the fecal matter was ejected through this incision and, as it oozed forth, it pushed out of place the gauze drain. This unexpected development alarmed the family, and the defendant was sent for. He had made no intimations to the plaintiff or her family that such an occurrence was to be expected. Upon his arrival, the defendant said that at some time the plaintiff had probably swallowed something sharp, and that this object had caused a rent in the colon. The defendant cleansed the incision, prescribed a course of treatment, and left. The plaintiff's condition did not improve; the fecal matter continued to come forth from the open incision; and a few days later the plaintiff procured the services of another physician, Dr. L. O. Roberts. June 14 the plaintiff was taken to a hospital, where a course of treatment was adopted in the hopes that nature would repair the rent in the colon. When this desired result did not occur, another operation was resorted to August 6th by Dr. T. W. Kirby, with the assistance of Dr. Roberts. Dr. Kirby testified that in the course of the operation he found the transverse colon adhering to the wound, and an opening in the colon an inch and a half to two inches in extent attached to the body wall of the incision....