Just v. Littlefield

• Decision Date: 24 September 1915
• Docket Number: 12587.
• Parties: JUST et al. v. LITTLEFIELD.
• Court: Washington Supreme Court

151 P. 780

87 Wash. 299

JUST et al. v. LITTLEFIELD.

No. 12587.

Supreme Court of Washington

September 24, 1915

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Mamie Just and another against Charles W. Littlefield. From a judgment for plaintiffs, defendant appeals. Affirmed.

Robert A. Devers, of Seattle, for appellant.

Jackson Silsbaugh, of Seattle, for respondents.

HOLCOMB J.

During the latter part of 1912 respondent Mrs. Just was suffering some physical ailment, and for a time was treated by a Dr Dawson. She did not improve as she desired, and a lady osteopathist, rooming at the apartment house of which respondents had charge, recommended the appellant as a physician, and took Mrs. Just to consult him, on about January 25 or 26, 1913. Appellant examined her and diagnosed her ailment as cystic tumors. Mrs. Just testified that she informed appellant that Dr. Dawson had diagnosed her case as pregnancy. Appellant was positive, she says, that the trouble was cystic tumors, and advised her that an immendiate operation was necessary. Before deciding to accept and act upon appellant's advice, Mrs. Just consulted with her husband, and again consulted with Dr. Dawson, informing him of appellant's diagnosis and advice. Dr. Dawson then, to confirm his diagnosis, called in another physician, a Dr. Bourns, who had previously treated Mrs. Just, who in company with Dr. Dawson made an examination of her and determined that her condition was that of pregnancy of the stage of three or four months. Dr. Dawson then took her to a hospital for treatment for membranous colitus. She did not seem to improve, and after talking the matter over with her husband they concluded that perhaps Dr. Littlefield was right, and they again called him in and discharged Dr. Dawson. Appellant again assured her that his diagnosis was right, but that to make sure he would call in another doctor for consultation, and called in a Dr. Palmer, who also made an examination and declared that the ailment was cystic tumors, and not pregnancy. Dr. Palmer had also been informed that both Dr. Dawson and Dr. Bourns had declared the case one of pregnancy. This examination was made on January 31st, and on the next morning, February 1, 1913, appellant procured Dr. Palmer to perform an operation. The surgeon merely made an incision about four inches long into the abdomen of Mrs. Just, examined the interior of the abdomen, found what appeared, and then closed the incision, sewed it up, and left her in the hospital for care. They did not find any cystic tumors. She remained in the hospital five days, and was then removed to her home. On the thirteenth day after the operation appellant came to her house and removed the stitches. Five weeks afterwards he came to her home, accompanied by both the Dr. Palmer who performed the operation and another Dr. Palmer, and made further examination to ascertain whether or not she was actually pregnant, and the doctors all then heard, by means of the stethoscope, the foetal heart beats and were convinced that she was pregnant. Mrs. Just claimed that she suffered the pains of childbirth from the time of the operation until the birth of the child, on July 2, 1913, five months later, and that the birth of the child was delayed one month by reason of the operation, and that by reason of that delay and her weakness and illness the child was necessarily removed with forceps and later died. She contends that her health has been permanently injured by reason of the operation and that she is no longer able to perform her duties.

Respondents brought this action for damages in the sum of $6,200. The negligence alleged in their complaint is as follows:

'That the defendant unskillfully and negligently failed to apply the usual test, which, if so applied, would have disclosed the condition as that of pregnancy, and failed and neglected to use proper care and skill, not only in the diagnosis of the case, but failed and neglected to give the plaintiff Mamie Just proper care after the operation, in that he failed to visit and treat her but one time, and then only for the purpose of removing the stitches from the wound.'

The jury rendered a verdict for respondent for $500.

Before issues were joined upon the facts, appellant moved to strike certain paragraph and portions of paragraphs from the complaint, and to make the fifth paragraph more definite and certain by alleging specifically what test is referred to as 'the usual test.' There was no prejudice to appellant in the denial of all the motion to strike. The motion to make more definite and certain the allegation that appellant failed and neglected to apply 'the usual test' should have been granted. What the pleader meant by 'the usual test' might have been entirely different from what appellant or any reputable physician or obstetrician would mean by 'the usual test,' and at most pleaded nothing but a conclusion, which, upon motion directed to that purpose, the pleader should have been required to make definite and certain, by stating the character of the 'usual test' which respondents meant in charging appellant with negligent failure to use it. But, on the trial, as the case developed, it did not appear that the appellant was in any way surprised or prejudiced, or prejudiced, or prevented from procuring and introducing testimony upon the nature and informative value of 'the usual test' in the early stages of pregnancy, which is simply the 'bimanual test' or examination or palpation with the hands.

Our statute (Rem. & Bal. Code, § 1752) requires this court to 'hear and determine all causes * * * upon the merits thereof, disregarding all technicalities,' etc. It not being made to appear that appellant was misled or surprised in any way to his disadvantage in the trial of the cause, this technical error of the court is now unavailing to him. Rem. & Bal. Code, §§ 307, 1752; Rattelmiller v. Stone, 28 Wash. 104, 68 P. 168; Peterson v. Barry, 50 Wash. 361, 97 P. 239.

The principal question here is whether a physician is, as a matter of law, liable for a wrong diagnosis and ensuing treatment based thereon, even where there may be an honest difference of opinion among members of the medical profession as to the diagnosis, if the diagnostician proceeded with due care, skill, and diligence in treating the patient. The law is, of course, well settled that a physician is liable for a wrong diagnosis of a case, resulting from a want of skill or care on the part of the physician, and followed by improper treatment, to the injury of the patient; but unless improper treatment follows a wrong diagnosis gives no right of action. 30 Cyc. 1575; 22 Am. & Eng. Ency. Law (2d Ed.) 802; 5 Thompson on Negligence, § 6717; Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 P. 95.

It is now well settled that a physician is entitled to practice his profession, possessing the requisite qualifications, and applying his skill and judgment with due care, and is not ordinarily liable for damages consequent upon an honest mistake or an error of judgment in making a diagnosis, in prescribing treatment, or in determining upon an operation, where there is reasonable doubt as to the nature of the physical conditions involved, or as to what should have been done in accordance with recognized authority and good current practice. 30 Cyc. 1578; Merriam v. Hamilton, 64 Or. 476, 130 P. 406; Wells v. Ferry-Baker...