Lagerpusch v. Lindley

• Decision Date: 08 May 1962
• Docket Number: No. 50606,50606
• Citation: 115 N.W.2d 207,253 Iowa 1033
• Parties: Horace H. LAGERPUSCH, Administrator of the Estate of Gladys Lagerpusch, Deceased, Appellant, v. E. L. LINDLEY, Appellee, St. Lukes Methodist Hospital, Inc., a Corporation, Appellee.
• Court: Iowa Supreme Court

Page 207

115 N.W.2d 207

253 Iowa 1033

Horace H. LAGERPUSCH, Administrator of the Estate of Gladys Lagerpusch, Deceased, Appellant, v. E. L. LINDLEY, Appellee, St. Lukes Methodist Hospital, Inc., a Corporation, Appellee.

No. 50606.

Supreme Court of Iowa.

May 8, 1962.

Messer & Cahill and Jay H. Honohan, Iowa City, for appellant.

Barnes, Wadsworth, Elderkin, Locher & Pirnie, and John D. Randall, Cedar Papids, for appellee, E. L. Lindley.

Simmons, Perrine, Albright, Ellwood & Neff, Cedar Rapids, for appellee, St. Lukes Methodist Hospital, Inc.

PETERSON, Justice.

This is an action by plaintiff for $150,000 damages because of the death of his wife through alleged negligence by defendants. The petition alleged in Court I that defendants were negligent in diagnosing and treating plaintiff's wife, and because of this negligence she died. In Counts II and III the doctrine of res ipsa loquitur is invoked against defendants. After plaintiff complied with a motion for more specific statement, defendants filed motion to dismiss as to all three counts, which motion was sustained by the trial court. Plaintiff appeals.

I. The facts alleged by plaintiff are that E. L. Lindley is a physician and surgeon practicing in Cedar Rapids. Defendant St. Lukes Methodist Hospital, Inc., is an Iowa corporation with a hospital located in Cedar Rapids. Defendant Dr. Lindley is connected with defendant hospital.

On March 10, 1959, plaintiff's decedent called defendant Dr. Lindley to treat her and for a compensation he accepted her case. He directed defendant to go to St. Lukes Hospital and on March 13, 1959 the hospital accepted decedent as a patient for compensation and undertook to attend her.

Defendant Dr. Lindley carelessly, unskillfully and negligently diagnosed said sickness and defendant hospital carelessly, unskillfully and negligently delayed in making proper examination of plaintiff's decedent. At all times material to this action plaintiff's decedent was under the care and supervision of both defendants. That as a result of the negligence of defendants on or about 5 P.M., on March 13, 1959, plaintiff's decedent died at said hospital.

Plaintiff alleges defendants were negligent in the following particulars:

'a. In failing to provide supervision and care for plaintiff's decedent during her attendance in the hospital.

'b. In failing to give plaintiff's decedent a medical examination.

'c. In failing to keep plaintiff's decedent under observation when defendants knew, or in the exercise of reasonable care should have known, that her condition was such as to require observation.

'd. In allowing time to elapse between the time that it was apparent, or in the exercise of reasonable care should have been apparent that the patient's condition was changing and in need of some type of treatment or action, and the time when such action was finally taken.

'e. In failing to institute treatment which would have saved the life of plaintiff's decedent.

'f. In failing to take any steps or give medical assistance which would have saved the life of the plaintiff's decedent.'

Plaintiff adds to his petition the following, designated as Paragraphs 11A and 11B of Count I:

'11A. Defendant, E. L. Lindley, was specifically negligent in failing to be in attendance to his patient for the purpose of diagnosis, care and treatment.

'11B. The negligence of the defendant was the sole cause of the death of plaintiff's decedent.'

In this case we do not consider the merits of the controversy. The only question is whether or not plaintiff has stated a cause of action which should be submitted to a jury, provided plaintiff can adduce sufficient testimony to justify such submission.

We are first confronted with the well established principle that on a motion to dismiss we must view plaintiff's petition in the light most favorable to him. Newton v. Grundy Center, 246 Iowa 916, 70 N.W.2d 162; 1 Cook, Iowa Rules of Civil Procedure, Rev.Ed. 673, and Author's Comment; 29 Iowa Law Review, 23, 26; Schmidt v. United States, 7 Cir., 198 F.2d 32, 34; Montgomery Ward & Co. v. Langer, 8 Cir., 168 F.2d 182, 185.

In Newton v. Grundy Center, supra, the court said: 'However, we think the law is well settled that upon motions to dismiss a complaint on the ground that it does not state a claim upon which relief can be granted, such complaint should be construed in the light most favorable to the plaintiff, with all doubts resolved in his favor and the allegations accepted as true. If, in view of what is alleged, it reasonably can be conceived that plaintiff can upon the trial make a case which would entitle him to some relief, the complaint should not be dismissed.'

As a statement of the law a petition must show: 1. The existence of a duty on the part of defendant; 2. A failure by defendant to perform such duty; 3. An injury to plaintiff from such failure. 38 Am.Jur., Negligence, Section 258; Newton v. Grundy Center, supra; Liken v. Shaffer, D.C., 64 F. Supp. 432; City of Osceola v. Gjellefald Construction Co., 220 Iowa 685, 263 N.W. 1; Townsend v. Armstrong, 220 Iowa 396, 260 N.W. 17.

In Townsend v. Armstrong, supra, the court said: 'A good pleading consists of a statement of the ultimate facts in the case, and, when so stated, the pleader has a right to plead his conclusion based upon those facts.'

In a malpractice case the pleader must either show an affirmative act of negligence, or it may show lack of skill or care, or failure to give careful and proper attention to his patient. Wilson v. Corbin, 241 Iowa 593, 41 N.W.2d 702; Bartholomew v. Butts, 232 Iowa 776, 779, 5 N.W.2d 7, 9; 41 Am.Jur., Physicians and Surgeons, Section 92; In re Johnson Estate, 145 Neb. 333, 16 N.W.2d 504, 511; Van Sickle v. Doolittle, 173 Iowa 727, 155 N.W. 1007; 70 C.J.S. Physicians and Surgeons, § 48d; Simonelli v. Cassidy, 336 Mich. 635, 59 N.W.2d 28; Wheatley v. Heideman, 251 Iowa 695, 102 N.W.2d 343.

As a general statement of a physician's duty Wilson v. Corbin, supra, states: 'A physician is bound to use that degree of knowledge, skill, care, and attention ordinarily exercised by physicians under like circumstances and in like localities. He does not impliedly guarantee results.'

In Wheatley v. Heideman, supra, this court stated: 'Malpractice may consist in lack of skill or care in diagnosis as well as in treatment.'

As to Count I we hold the motion to dismiss should not have been sustained.

II. In Count II plaintiff alleges the doctrine of res ipsa loquitur pertains to defendant Lindley. In Count III he contends such doctrine pertains to defendant hospital.

The essential component parts of res ipsa loquitur are: 1. The instrumentalities causing the injury must be under the exclusive control of defendant. 2. The happening of the injury must be such that in the ordinary course of events it would not occur without lack of due care on the part of defendant.

In the absence of either of the above elements the doctrine does not apply. Gebhardt v. McQuillen, 230 Iowa 181, 297 N.W. 301; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425; Mogensen v. Hicks, Iowa, 110 N.W.2d 563.

In the case at bar neither the doctor nor the hospital were in full control of the instrumentalities involved. They could deal with the body of plaintiff's wife, but they had no control over her physical frailties, allergies, reactions or idiosyncrasies.

The doctrine of res ipsa loquitur should be used very rarely in medical cases. Shinofield v. Curtis, 245 Iowa 1352, 66 N.W.2d 465, 471, 50 A.L.R.2d 964; 65 C.J.S. Negligence § 220(10); Mogensen v. Hicks, supra.

In many medical cases the doctrine of res ipsa has been rejected: Berg v. Willett, 212 Iowa 1109, 232 N.W. 821; Gebhardt v. McQuillen, supra; Lippard v. Johnson, 215 N.C. 384, 1 S.E.2d 889; Prewitt v. Higgins, 231 Ky. 678, 22 S.W.2d 115; Groce v. Myers, 224 N.C. 165, 29 S.E.2d 553; Mogensen v. Hicks, supra.

The second element of res ipsa is also absent in the case at bar. In considering the second element it rests on common experience and not on evidence in the particular case that tends in itself to show such occurrence was, in fact, the result of negligence. Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 769, 11 A.L.R.2d 1164; 38 Am.Jur., Negligence, Sec. 297; Kapros v. Pierce Oil Co., 324 Mo. 992, 25 S.W.2d 777, 78 A.L.R. 722, 729; Anno. 59 A.L.R. 468.

In view of the uncertainty as to the time of death as to any person, the happening of such event as to plaintiff's wife on March 13, 1959, is not sufficiently certain to justify res ipsa, for that in the ordinary course of events the death could have occurred without lack of due care on the part of defendants.

Appellant bases his res ipsa loquitur claim primarily on three cases. Frost v. Des Moines Still College, 248 Iowa 294, 79 N.W.2d 306; Whetstine v. Moravec, supra; Ybarra v. Spangard, 25...