Horn v. National Hospital Association

• Decision Date: 01 December 1942
• Parties: HORN <I>v.</I> NATIONAL HOSPITAL ASSOCIATION
• Court: Oregon Supreme Court

169 Or. 654

131 P.2d 455

HORNv.

NATIONAL HOSPITAL ASSOCIATION

Supreme Court of Oregon.

Argued September 15, 1942.

Affirmed December 1, 1942.

Negligence

1. Where there are two or more possible causes of injury for one or more of which defendant is not responsible, plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable.

Hospitals

2. In malpractice action, evidence that alleged negligence of defendant hospital association, if any, in failing to diagnose condition of plaintiff and advise her was the proximate cause of any injury to her was insufficient for jury.

Trial

3. If there is no substantial evidence tending to establish any one of the essential elements, a cause of action should not be submitted to the jury.

Hospitals

4. Where alleged negligence of a defendant consists of physical nonfeasance and the negligence, if any, was failure to diagnose and advise, it is not sufficient for a plaintiff to show subsequent ailments and rest his action for malpractice upon the specious doctrine of "post hoc ergo propter hoc" but he must go further and show that competent action would have been substituted for inaction, and that there was reasonable probability that the subsequent ailments would have been less if the substitution had been made.

Hospitals

5. Uncertainty regarding amount of damages will not always prevent recovery but where the causal connection between alleged negligent failure of defendant hospital association to diagnose and advise and subsequent ailments of plaintiff is left to mere speculation, a nonsuit is required.

                  See 41 Am. Jur. 223
                  30 C.J., Hospitals, § 31
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Malpractice action by Deborah Horn against National Hospital Association, a corporation. From a judgment of involuntary nonsuit, plaintiff appeals.

AFFIRMED.

Gunther F. Krause, of Portland (Victor R. Griggs, of Portland, on the brief), for appellant.

Frank S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for respondent.

Alleging malpractice, Deborah Horn brings this action against the National Hospital Association, a corporation. From a judgment of involuntary nonsuit plaintiff appeals.

In her complaint the plaintiff alleges that the defendant was engaged in the business of a hospital association and undertook to and did, through its agents and servants, diagnose and treat, pain, wounds, fractures and other conditions and that

"* * * On or about March 8, 1937, plaintiff went to said Portland office of the defendant for the purpose of ascertaining her physical condition and determining from what, if any, disease she was suffering, and whether or not she was in need of any medical or surgical treatment and the nature of the same, if any, and the defendant then and there, through its agents and servants, undertook to diagnose plaintiff's physical condition and advise her as to whether or not she was in need of medical or surgical treatment."

The plaintiff alleges further that she was then

"* * * Suffering from a chronic gall bladder condition for which immediate medical and surgical treatment was indicated, which condition, by the exercise of that degree of care, skill, diligence and knowledge which is ordinarily possessed by the average member of the medical profession in the said City of Portland and similar localities could and should have been discovered and properly diagnosed."

She alleges that the defendant negligently failed to exercise the said degree of skill, diligence and knowledge and that by reason of such alleged negligence the plaintiff's condition was not recognized, and plaintiff, "being ignorant of the nature of said condition, did not at that time obtain any medical or surgical treatment for the same." She alleges further that by reason of said failure of the defendant to recognize plaintiff's condition, and as the proximate result thereof, her condition was not discovered for a period of several months, and that as a result thereof, her system was permeated with toxic poisons from said gall bladder,

"And on account of such poisoning and irritation of the gall bladder, plaintiff developed a serious nervous and mental condition, suffered excruciating headaches and great mental and physical pain and discomfort."

And that, although her condition is improved, nevertheless "Her condition is permanent," and that, "She will suffer for the balance of her life from nervousness and headaches," to her alleged damage in the sum of $10,000. The complaint also alleges that she suffered special damages on account of expenses for hospital, medical, surgical and nurses' care, drugs and traveling expenses from Sisters, Oregon, to Portland, in the total alleged sum of $1,419.64.

(At the trial, the plaintiff introduced evidence of expenses aggregating $1,995.06, but thereafter counsel for plaintiff stated:

"With respect to those medical expenses * * * we concede that they are not * * * properly recoverable in this case and that the jury may be instructed to disregard all of the bills with the exception of the bill of Dr. Edmund Berger for $150."

The court accordingly withdrew all the evidence with reference to the items of expense aggregating $1,995.06, with the exception of the bill of Dr. Berger. This action was taken by reason of the fact that these expenses, being for medical services and the like, were the subject of another suit between the same parties which had been previously settled.)

The answer of the defendant is in the nature of a general denial, but the defendant affirmatively alleges that the action of the defendant was pursuant to a contract which had been entered into between plaintiff's husband, H.H. Horn, and the defendant corporation, and that

"Under and by virtue of said contract, this defendant did agree to bear the expense of medical and surgical services, and other expenses enumerated in said contract."

and defendant alleges that upon the plaintiff becoming ill, on or about November 1, 1936, the plaintiff consulted various physicians relative to her ailments and that

"This defendant under and by virtue of its contract has borne the expenses of medical and surgical services and all the services provided for in said contract and has fully complied with all of its agreements contained in said written contract."

The execution of the contract was admitted by the plaintiff in her reply.

As stated in plaintiff's brief:

"It was incumbent upon the plaintiff to prove that she sought the services of the defendant, that the defendant undertook to diagnose her condition; that at the time, plaintiff suffered from gall stones and calcified gall bladder which defendant failed to discover due to its negligent failure to use and exercise reasonable skill and care, and that as a result of such negligence plaintiff suffered damages."

At the close of plaintiff's case and upon motion of the defendant, judgment of involuntary nonsuit was rendered, and the plaintiff appeals.

It was the contention of the defendant at the trial and before this court that it never undertook as a corporation to diagnose the plaintiff's case, and that its activities were limited to the performance of its contract with H.H. Horn, whereby the defendant has promised

"To bear the expenses of Medical and Surgical Services, Services by Specialists, Hospital Care, Medicines (and listing other named services) for the employes of the Employer engaged in its sawmill and logging operations in the State of Oregon, by Physicians, Surgeons, and Specialists, Hospitals, Druggists and/or other parties designated by the Medical Contractor, and subject to the provisions, conditions and limitations contained in this agreement."

The contract further provides that the

"* * * Liability of the medical contractor hereunder is limited to reasonable care in designating doctors, hospitals, nurses, druggists and/or other parties required for the purposes of this agreement * * *."

The execution of this contract was admitted. The plaintiff was one of the employees of her husband, H.H. Horn, and the evidence disclosed that she had come to the hospital association as such employee and presumably under the contract. The plaintiff's position was that the defendant corporation had gone beyond the terms of its contract and had in fact undertaken the duties of care and skill in diagnosis as alleged in the complaint.

BRAND, J.

If we were required to determine whether there was substantial evidence in support of plaintiff's allegation that the defendant, by its agents, undertook to diagnose the plaintiff's condition, a serious and difficult question would be involved by reason of the written contract, which purported on its face at least to limit the undertaking of the defendant to the payment of expenses for the services of persons designated by it, and which further purported to limit the liability of the defendant to the exercise of reasonable care in designating the doctors, etc., required for the purpose of the agreement. But in the view which we have taken of the evidence, it becomes unnecessary to pass upon this question.

Assuming for the purposes of this decision that the plaintiff did present evidence sufficient to go to the jury in support of her claim that the defendant, by its agents, did undertake to diagnose plaintiff's case, and assuming that she was not barred from such a contention by reason of the provisions of the written contract, and assuming further, but without deciding, that there was substantial evidence of negligence on the part of the defendant in failing to discover the diseased condition of her gall bladder, we will first consider whether or not the plaintiff has presented evidence sufficient to go to the jury for the purpose of proving that ...