Helland v. Bridenstine

• Decision Date: 02 November 1909
• Citation: Helland v. Bridenstine, 104 P. 626, 55 Wash. 470 (Wash. 1909)
• Parties: HELLAND v. BRIDENSTINE.
• Court: Washington Supreme Court

104 P. 626

55 Wash. 470

HELLAND v. BRIDENSTINE.

Supreme Court of Washington

November 2, 1909

Department 1. Appeal from Superior Court, King County; A. E. Rice Judge.

Action by Emma G. Helland against Sylvester J. Bridenstine. Judgment for plaintiff, and defendant appeals. Remanded, with instructions.

Peters & Powell, for appellant.

Walter D. Peters, James W. Carr, John E. Humphries, and George B Cole, for respondent.

FULLERTON J.

The respondent, a widow, brought this action against the appellant, who was a physician and surgeon in active practice in the state of Washington, to recover for injuries received by her arising from alleged malpractice on the part of the appellant. The alleged malpractice consisted of the use in and on her genital organs of unclean and unsterilized instruments, whereby there was communicated to her a loathsome disease technically known as gonorrhea, from which she suffered great bodily pain and mental anguish, to her damage in a large sum of money. The appellant answered the complaint, admitting his attendance upon her in the manner claimed, but denied that the instruments he used upon her person were unclean or unsterilized, or that the disease known as gonorrhea, or any disease, had been communicated to her therby, and denied that she had such a disease as gonorrhea, or that she had been damaged in any sum whatsoever through any act of his. The cause was tried on the issues thus made before the court sitting with a jury, and resulted in a verdict and judgment in favor of the respondent in the sum of $4,000, from which this appeal is taken.

The assignments of error suggest four principal questions: (1) That the evidence was insufficient to sustain the verdict and judgment; (2) that the court erred in refusing to give an instruction requested by the appellant; (3) that the court erred in permitting a witness to answer a certain hypothetical question; (4) that the court erred in instructing the jury as to the amount of the recovery; and (5) that the verdict is excessive. These questions we will notice in their order.

The evidence on the part of the respondent tended to show that the respondent had been suffering for a number of years with some nervous affliction. That early in the year 1906 her troubles became more acute, when she called in the appellant to prescribe for her. That he examined her as to her symptoms, and prescribed some form of medicine, which she took as directed, but which gave her only temporary relief. That the appellant thereupon stated to her that her symptoms indicated some derangement of the genital organs, and that if she would call at his office, he would examine her for the purpose of ascertaining whether any such derangement was the source of her ill health. That she called as requested, on or about February 1, 1906, when the doctor proceeded to examine her genital organs, using for that purpose certain instruments, called a speculum and probe which he took from a drawer nearby. That the instruments when taken from the drawer were wrapped in a towel, and were used upon her as they were when taken from the towel, without being washed or cleansed in any manner. That between 5 and 10 days thereafter she began to be troubled with inflammation and pain in the parts affected, accompanied by a discharge, which gradually became more severe, causing her to take to her bed. That she again called in the appellant as her physician, stated to him her trouble, and received from him certain remedies which she applied as directed. Then he continued to treat her for about a month thereafter, when she notified him that she did not require his services further. That shortly after this he called at her residence, and offered her free treatment, which she accepted, and for some time thereafter he treated her medically, giving both internal remedies and remedies to apply locally in the form of suppositories. That during this latter treatment he made another examination with the speculum, and stated to her that she would probably have to be operated on surgically before she could be cured. That the respondent refused to submit to such an operation, whereupon he ceased to treat her further. The respondent further testifies that she was in bed most of the time, suffering from pain in the genital region of her body, accompanied by a discharge of a purulent nature between the time the appellant quit treating her and August 15, 1906, when she consulted another physician of Ballard, who pronounced her disease to be gonorrhea. That this physician treated her for some three months thereafter, finally pronouncing her substantially cured. She also testified that her husband died on January 11, 1906, and that she had not had sexual intercourse with him for some weeks preceding his death. She was not asked, and did not testify directly, that she had not had sexual intercourse with any other man, but did state that her husband had no venereal disease, and that there was no other way than from the appellant's instruments by which she could have obtained the disease. The physician treating her last also testified that when she called upon him in August, 1906, for treatment she was suffering from chronic gonorrhea, which he ascertained not only from her diagnostic symptoms, but by finding in the discharge from her genital organs the specific microbe of the disease. He testified also as an expert that the respondent could acquire the disease from an infected speculum used upon her in the manner she testified this one was used.

The appellant testified that he was called upon the treat the respondent in January, 1906, when he found her complaining of much pain in the side in the region of the liver and pleura and of considerable pain in the abdomen and right ovary; that later she complained of soreness in the ovaries and womb and some discharge; that he requested her to come to his office for an examination; that she did come, and he examined her genital organs, finding an enlarged condition of the womb, some inflammation of the mucous membrane, accompanied by a discharge; that in making the examination he used a speculum, a probe, and forceps; that...