King v. Ditto

• Decision Date: 21 March 1933
• Citation: 142 Or. 207,19 P.2d 1100
• Parties: KING v. DITTO et ux.
• Court: Oregon Supreme Court

19 P.2d 1100

142 Or. 207

KING v. DITTO et ux.

Supreme Court of Oregon

March 21, 1933

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Jennie King against Johnson F. Ditto and wife. From the order setting aside the judgment in favor of defendants, and ordering a new trial, defendants appeal.

Affirmed.

James Arthur Powers, of Portland (Senn & Recken, of Portland, on the brief), for appellants.

Frank J. Lonergan, of Portland (Lonergan & Wagner and Neal R Crounse, all of Portland, on the brief), for respondent.

BELT Justice.

This is an action to recover damages for personal injuries sustained as a result of an alleged improper use of an X-ray machine. Plaintiff employed the defendants, who are duly licensed physicians and surgeons, to remove a needle which had become imbedded in her right hand.

Plaintiff alleged, and there was evidence tending to show, that the defendants were negligent in exposing her hand to X-rays in such manner as to result in a serious and permanent injury. Plaintiff testified, in substance, that, in accordance with the direction of the defendants, she held her hand in front of the X-ray machine at a distance of 10 inches for a period of from 15 to 20 minutes, and that, after a lapse of five or six minutes, the X-ray machine was again used five or six times for the same length of exposure. Drs Ralph C. Walker and Thomas W. Ross, who are specialists in X-ray diagnosis and therapy, testified, in answer to hypothetical questions, that such use of the X-ray machine without filter and using four milliamperes of electric current, would result in overdosage. These doctors further testified that the injury of which plaintiff complains was the result of an X-ray burn.

The defendants, who have been engaged for many years in the practice of their profession at Rainier, Or., denied the negligence charged and that the hand of the plaintiff was injured through the use of the X-ray machine. Dr. J. F. Ditto admitted that he had made a fluoroscopic examination five or six times on the day in question, but asserted that at none of these times was there a greater exposure than ten seconds. He said, "We could not use the fluoroscope fifteen or twenty minutes at a time. It would not last that long. It would blow the tube." His wife, the other defendant admits that she aided her husband in the operation to remove the needle, and that she also used the fluoroscope to determine its location.

The cause was submitted to a jury and a verdict returned in favor of the defendants.

On motion of the plaintiff, based on "error in law occurring at the trial and excepted to by the plaintiff," the trial court set aside the judgment and ordered a new trial. From this order the defendants appeal.

Defendants contend that the court erred in granting a new trial, for the reason that the motion failed to specify the ground upon which it was based. Appellants seem to confuse this case with one wherein the court refused to grant a new trial as was done in Easton v. Quackenbush, 86 Or. 374, 168 P. 631; Fassett v. Boswell, 59 Or. 288, 117 P. 302; State v. Kapsales, 90 Or. 56, 175 P. 433, cited in their brief. The trial court has the inherent power, in the interest of justice, to grant a new trial, even on its own motion, if error was committed which would warrant a reversal on appeal. Every contention which the defendants have made with reference to a new trial has been answered adversely to them in Timmins v. Hale, 122 Or. 24, 256 P. 770, 773, wherein the court said: "From these decisions [referring to prior decisions of this court] it is now settled law in this state that a trial court is authorized to set aside a judgment and grant a new trial because of some error of law occurring upon the trial as to matters not called to the attention of the court during the trial and as to matters to which no exception was taken. *** In respect to the necessity of there having been a ruling in the lower court and an exception taken which is requisite to a reversal upon appeal, there is a clear and well-recognized distinction between the power of the trial court on the one hand to set aside a judgment and grant a new trial and the power of the Supreme Court to reverse a judgment upon appeal, for it has been repeatedly held by this court that it is not error alone, but error legally excepted to, that constitutes grounds for reversal. ***"

As stated in Obermeier v. Mortgage Co., 111 Or. 14, 224 P. 1089, 1094: "The trial court has inherent power to grant a new trial, and, whenever the court timely discovers that error has been committed to the prejudice of a party, it may correct the error by setting aside the judgment and granting a new trial, either upon its own motion or upon motion by a party and upon grounds not specified in the motion. De Vall v. De Vall, 60 Or. 493, 500, 501, 118 P. 843, 120 P. 13, Ann. Cas. 1914A, 409, 40 L. R. A. (N. S.) 291; Rudolph v. P. R., L. & P. Co., 72 Or. 560, 569, 144 P. 93; Smith Typewriter Co. v. McGeorge, 72 Or. 523, 143 P. 905; Frederick & Nelson v. Bard, 74 Or. 457, 461, 145 P. 669; Archambeau v. Edmunson, 87 Or. 476, 487, 171 P. 186. It is not necessary for the court to specify in the order granting a new trial, the grounds or reasons for the same. Cathcart v. Marshfield, 89 Or. 401, 405, 174 P. 138."

The new trial was granted because of erroneous instructions. In determining whether the court erred in granting a new trial, we shall, in the light of the above authorities, consider the instructions in question, even though it be assumed that no proper exception was taken. The jury was instructed in part as follows:

I. "There is another rule of law to which the Court wishes to call your attention. A physician or surgeon practicing his profession is not liable for errors or mistakes of judgment. A professional man is employed to exercise his best judgment and honest opinion in the treatment of a case. If he does that then he has done all that the law requires. The mere fact that a bad result may follow or the mere fact that the patient does not improve or does not recover is not evidence that the doctor or surgeon has been guilty of malpractice. So in this case if in the removal of this needle the defendants exercised their best judgment and their honest judgment and did what they thought was proper, then merely because the result may not have been satisfactory would not make them liable. When they undertook to remove this needle they were not liable for mistakes or errors of judgment, and the mere fact that the hand may have been burned, if it was burned, by the X-ray, and the Court expresses no opinion upon that question, is no evidence that these defendants have been guilty of malpractice."

II. "These defendants are not to be judged by the standards of care which are used by doctors or surgeons in all localities, where modern conveniences and assistance are easily secured. They are only to be judged by the standard of care which is exercised by physicians and surgeons in localities like Rainier and similar localities. The physician or surgeon practicing in rural communities of our state is not held to that same degree of care to which a physician or surgeon is held who practices in a large city. The standard of care is always that care which is exercised by physicians and surgeons in cities of like localities."

III. "I will state to you that if you find that the defendants, when they undertook to remove this needle at Rainier on the 21st of January, 1929, used and exercised that degree of care which is ordinarily used by physicians and surgeons in the same or like localities, and if you find that while undertaking to remove this needle these defendants used their honest and best judgment as to the method to be pursued, then I instruct you that they would not be liable in this case, regardless of what the result may have been."

IV. "In considering whether or not these defendants used that degree of care which is usually and ordinarily exercised by physicians and surgeons in like localities you may take into consideration the surrounding circumstances. You may take into consideration the fact that these people were acquainted, where they lived, and you may take into consideration the place where the treatment was accorded, the size of Rainier, and you may take into consideration the experience of the defendants, the time they had used the X-ray machine, and all such matters, and then, based upon all those facts connected with this transaction you may consider whether or not these defendants used that degree of care which is usually and ordinarily exercised by physicians and surgeons in like localities."

Before stating the law applicable to the above instructions, it is important to consider the precise issues of fact. This is not a case of the negligent use of an X-ray machine in administering treatment to a patient. Neither are the defendants charged with negligence in performing the operation to remove the needle. The issues were: Did the defendants fail to use reasonable care and diligence in the use of the X-ray machine; i. e., was the plaintiff subjected to an overdosage of electric current? If this question be answered in the affirmative, the next logical...