Hayes v. Hulswit

• Decision Date: 09 May 1968
• Docket Number: No. 38992,38992
• Citation: 440 P.2d 849,73 Wn.2d 796
• Court: Washington Supreme Court
• Parties: Ada E. HAYES, Appellant, v. Franklin F. HULSWIT and Jane Doe Hulswit, husband and wife, Respondents.

Page 796

73 Wn.2d 796

440 P.2d 849

Ada E. HAYES, Appellant, v. Franklin F. HULSWIT and Jane Doe Hulswit, husband and wife,

Respondents.

No. 38992.

Supreme Court of Washington, Department 1.

May 9, 1968.

Rehearing Denied July 22, 1968.

Horton, Wilkins, Horton & Bennett, Hugh B. Horton, Kennewick, for appellant.

Karr, Tuttle, Campbell, Koch & Granberg, R. D. Morrow, Seattle, for respondent.

WEAVER, Judge.

Plaintiff appeals from a judgment dismissing her action entered after the court had sustained a challenge to the sufficiency of the evidence.

We are mindful of the oft-quoted rule that a challenge to the sufficiency of the evidence admits the truth of the opposing party's evidence, and all inferences that can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and most favorably for the party against whom the motion is made. Hellriegel v. Tholl, 69 Wash.2d 97, 98, 417 P.2d 362 (1966), and authorities cited.

This is an action by plaintiff, a resident of Walla Walla, against Franklin F. Hulswit, a licensed dentist specializing in oral surgery in Pasco, Washington, for damages allegedly arising from defendant's malpractice.

In actions such as this:

(1) Plaintiff must establish by competent evidence the standard and degree of care and skill expected of the average medical or dental practitioner, in the class to which defendant belongs, acting in the same or similar circumstances. As this court recently said:

This standard of care is that established in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of the patient. Pederson v. Dumouchel, 72 Wash.Dec.2d 73, 431 P.2d 973 (1967).

(2) Plaintiff's evidence must establish that defendant failed to meet this standard of care.

(3) Plaintiff's evidence must establish that defendant's alleged failure to meet the standard of care was a proximate cause of her alleged damage.

(4) Plaintiff's evidence must establish that she suffered damage by reason of defendant's failure to meet this standard of care.

In a recent action for damages for medical malpractice in which the trial court held that plaintiff had failed to establish a prima facie case, this court said:

The prima facie case in negligence is the showing of an act or omission by the defendant which breaches a standard of care owed by him to the plaintiff, which breach is the cause, both in fact and proximately, of damage to the plaintiff. The sole question on appeal is whether plaintiff introduced proof that defendant failed to observe a standard of care owed the plaintiff. Versteeg v. Mowery, Wash., 435 P.2d 540 (1967).

With this foundation we turn to the facts.

Plaintiff, 63 years of age, was edentulous; she wore upper and lower dentures. She developed an impacted third molar (wisdom tooth), which infected the jawbone and surrounding tissue; this caused discomfort beneath her lower denture. Plaintiff was referred to defendant, an oral surgeon, for removal of the impacted tooth.

September 17, 1963, defendant operated upon plaintiff. The operation entailed incision into the gum and entry into the jawbone, which covered one-half of the crown of the tooth and all of its roots. During the course of removal, plaintiff's jaw broke at the site of the impacted tooth. Defendant set the fracture during the same surgical procedure by placing a wire loop through the two segments of the jaw and drawing them together. Defendant testified that alignment of the jaw was satisfactory, but not perfect. He, of course, visually observed the positioning secured when he set the fracture. Plaintiff's professional witness, Dr. Donald Smith, testified that 'slightly above two millimeters of displacement would be acceptable.'

Plaintiff returned to defendant five times for care and treatment between September 17, 1963, the date of the operation, and October 30, 1963. She advised defendant of continuing pain. In the meantime and prior to her last visit to defendant on October 30, plaintiff on eight different occasions, consulted two physicians in Walla Walla.

October 31, 1963, the day after plaintiff had visited defendant, she consulted Dr. Fred F. Crutcher, a licensed dentist practicing in Walla Walla and specializing in orthodontics. She told him that her lower denture would no longer fit. Dr. Crutcher told her that she would probably need a new lower denture because of the extraction. Dr. Crutcher, who testified by deposition as an expert witness for plaintiff stated that had plaintiff's lower denture been corrected, the significance of the jaw displacement would have been reduced while she was wearing the denture.

Not having her previous dental history, Dr. Crutcher had plaintiff's lower jaw X-rayed. After seeing the X rays, Dr. Crutcher diagnosed plaintiff to have 'an offset in the mandible at the site of the fracture of approximately five millimeters.' He did not see her again until November 11, 1963, at which time he assisted Dr. Donald Smith, a licensed medical doctor and orthopedic surgeon practicing in Walla Walla, in an operation in which plaintiff's jaw was broken and reset in order to relieve a nerve impingement.

Dr. Smith first saw plaintiff on November 10 or 11 at the request of Dr. Bohlman, a general practitioner. He testified that the offset, or discrepancy at the site of the fracture in plaintiff's jaw after defendant had set it, would not be considered significant in the absence of pain; that the position of the reduced fracture evidently was the same between September 17 and November 11; that a month to six weeks would be a reasonable period of time to recover from a jaw fracture; and that defendant would possibly be justified in waiting that period of time to determine plaintiff's recovery. It was not until November 10 or 11, when Dr. Smith first saw plaintiff, that he reached the conclusion that an additional procedure would be necessary because of a nerve impingement.

When the trial judge dismissed the jury, he explained that a case like this 'requires testimony by other physicians of a failure to live up to the standard of care of a doctor in this community, and basically my decision to dismiss the case is based on the failure of the medical testimony to come up to that requirement.'

After a careful reading of the record, we agree with the trial court's conclusion.

Keeping in mind that this action is not based upon defendant's negligence causing the original fracture when the impacted wisdom tooth was extracted, but upon the claim that defendant's subsequent treatment was negligent, we find nothing in the record to establish a medical standard of care that defendant breached during this period.

It is true that Dr. Crutcher, testifying by deposition, stated that it was standard procedure to take an X ray if a person came to the office with this type of complaint; however, there is no testimony to establish that defendant's failure to X-ray plaintiff's jaw during this period was negligence on his part. In fact, negligence is negatived; for Dr. Smith, testifying for plaintiff, observed that the oral surgeon who performed the first operation could tell by visual inspection at the time of the operation and by palpation the extent of the malalignment; the X ray would merely have confirmed what he already knew.

In the last analysis, all that plaintiff's evidence establishes is a difference of professional opinion as to diagnosis and treatment. This alone is not evidence of malpractice.

Our disposition of this case is governed by the rule announced in Richison v. Nunn, 57 Wash.2d 1, 16, 340 P. 793 (1959), and recently reaffirmed in Versteeg v. Mowery, Wash., 435 P.2d 540 (1967):

The testimony of other physicians that they would have followed a different course of treatment than that followed by the defendant, or a disagreement of...