Jankelson v. Cisel, 147--I

• Decision Date: 03 August 1970
• Docket Number: No. 147--I,147--I
• Citation: 473 P.2d 202,3 Wn.App. 139
• Parties: Bernard JANKELSON, Respondent, v. Madeline CISEL, Appellant.
• Court: Washington Court of Appeals

Page 139

3 Wn.App. 139

473 P.2d 202

Bernard JANKELSON, Respondent, v. Madeline CISEL, Appellant.

No. 147--I.

Court of Appeals of Washington, Division 1, Panel Two.

Aug. 3, 1970.

Helsell, Paul, Fetterman, Todd & Hokanson, William A. Helsell and John Stocker, Seattle, for appellant.

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

UTTER, Judge.

Dr. Bernard Jankelson, a dentist, brought this action against Madeline Cisel, to recover damages for libel and slander and to permanently enjoin Mrs. Cisel from making further slanderous publications. Mrs. Cisel counterclaimed to recover damages for personal injuries received by her as a result of his alleged malpractice. The trial court dismissed her counterclaim with prejudice, awarded Dr. Jankelson $12,000, and permanently enjoined Mrs. Cisel from making false and/or derogatory statements that might tend to prejudice Dr. Jankelson. Mrs. Cisel appeals.

Mrs. Cisel contends the court erred in refusing to grant her motion for a continuance, and that the trial judge erred in failing to disqualify himself following the filing of her affidavit of prejudice. She also urges the court should not have sustained respondent's objections to hypothetical questions which she sought to ask her expert witness, and claims she was prejudiced by the court's comments on the evidence in the presence of the jury.

In 1964, Mrs. Cisel, upon recommendation of the Seattle Dental Society, consulted Dr. Jankelson concerning occasional discomfort she was suffering from a 'click' in her jaw. He diagnosed the problem as a muscle spasm, which was related to an occlusal problem, and concluded the most practical method of treatment was to grind her teeth in order to alter her occlusion.

After completion of the treatment, Mrs. Cisel became dissatisfied with Dr. Jankelson and consulted Dr. James Hooley of the University of Washington Dental School. Mrs. Cisel subsequently became dissatisfied with Dr. Hooley also. During the next year Mrs. Cisel consulted many dentists. She did not pursue treatment with any of these. During these consultations, however, she continually complained about Dr. Jankelson's treatment. She also wrote numerous letters to various dentists, dental societies and governmental agencies complaining of the treatment she had received.

In February, 1966, Mrs. Cisel commenced a suit against Dr. Jankelson for medical malpractice. She dismissed her original attorney fearing that he would be unable to prepare the case in time for trial, and later retained a second attorney who informed her that there was insufficient time in which to prepare for trial. On his advice, a voluntary nonsuit was taken on April 14, 1967.

Doctor Jankelson then commenced the present action against Mrs. Cisel. A third attorney appeared for her, but later withdrew. She finally appeared pro se, and filed an answer and counterclaim.

Trial was set for June 9, 1969. Mrs. Cisel's fourth attorney withdrew on May 1, 1969. Mrs. Cisel obtained her fifth attorney on May 26, 1969. He promptly filed a motion for a continuance, which motion was denied by the presiding judge on June 3, 1969. The motion was renewed before him prior to assignment of the case on June 9, 1969, and again denied. The motion was again renewed after assignment of the case to Judge Mifflin, and denied by him.

The withdrawal of an attorney in a civil case or his discharge does not give the party an absolute right of continuance. Grunewald v. Missouri Pacific R.R., 331 F.2d 983 (8th Cir. 1964); Annot., 48 A.L.R.2d 1155 (1956). The rationale for this rule is that if a contrary rule should prevail, all a party desiring a continuance, under such circumstances, would have to do would be to discharge his counsel or induce him to file a notice of withdrawal. Peterson v. Crockett, 158 Wash. 631, 291 P. 721 (1930).

The corollary of this rule is that the decision whether to grant or to refuse a continuance in such a situation rests in the discretion of the court to which the application is made, and the ruling of the trial court in the exercise of that discretion will not be disturbed except for manifest abuse of discretion. Swope v. Sundgren, 73 Wash.2d 747, 440 P.2d 494 (1968); Barrinuevo v. Barrinuevo, 47 Wash.2d 296, 287 P.2d 349 (1955); Donaldson v. Greenwood, 40 Wash.2d 238 242 P.2d 1038 (1952); See note and cases cited in 26 Wash.L.Rev. 212 (1951).

In this case, Mrs. Cisel obtained counsel nearly 2 weeks prior to the date the case was set for trial. Mrs. Cisel's prior counsel had been preparing for 11 months and indicated he was withdrawing because she had not responded to any of his letters requesting she contact him right away.

Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Rehak v. Rehak, 1 Wash.App. 963, 465 P.2d 687 (1970). In this case, reasonable men could differ as to the action taken by the trial court, and we find no abuse of discretion.

On the second day of trial, appellant filed an affidavit of prejudice pursuant to RCW 4.12.050. ¹ Mrs. Cisel contends the court is bound by the terms of RCW 4.12.050 to disqualify itself. We disagree.

Prior to the filing of the affidavit of prejudice, the trial judge presided over the impaneling of the jury. During the impaneling of the jury, the judge dismissed one juror for cause, and denied a challenge for cause as to a second juror. Ruling on the challenges for cause involved the exercise of the trial judge's discretion. The affidavit of prejudice, having been filed after the trial judge made rulings involving the exercise of discretion, was not timely and the failure of the trial judge to disqualify himself did not constitute error.

It is next argued by Mrs. Cisel that it was error to sustain Dr. Jankelson's objections to certain hypothetical questions which were sought to be asked her expert witness, Dr. Wanamaker. In order to obtain appellate review of trial court action in excluding evidence, there must be an offer of proof. Mason v. Bon Marche Corp., 64 Wash.2d 177, 390 P.2d 997 (1964). One of the purposes of such an offer is to inform the appellate court whether the appellant was prejudiced by the exclusion of the evidence. Mason v. Bon Marche Corp., Supra. In this case, appellant made an offer of proof which failed to state there was a recognized standard of practice or that the doctor departed from that standard, if it existed.

In view of her offer of proof, Mrs. Cisel was not prejudiced by the court's refusal to allow her hypothetical questions. To sustain a judgment against a physician or surgeon for malpractice, the standard of medical practice in an area coextensive with the medical and professional means available in those centers that are readily accessible for appropriate treatment of patients must be shown, and, further, that the doctor failed to follow the methods prescribed by that standard. Negligence on the part of the physician or surgeon by reason of his departure from the recognized standard of practice must be established by medical testimony. Versteeg v Mowery, 72 Wash.2d 754, 435 P.2d 540 (1967); Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967); Stone v. Sisters of Charity of the House of Providence, 2 Wash.App. 607, 469 P.2d 229 (1970).

Dr. Benedict Petraitis, Mrs. Cisel's first expert witness, testified he was not...