Langford v. Jones

• Decision Date: 06 January 1890
• Citation: 22 P. 1064,18 Or. 307
• Parties: LANGFORD v. JONES.
• Court: Oregon Supreme Court

22 P. 1064

18 Or. 307

LANGFORD v. JONES.

Supreme Court of Oregon

January 6, 1890

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

The respondent commenced an action against the appellant in said circuit court to recover damages for alleged malpractice as a surgeon and physician. The complaint contains the usual allegations of negligence and unskillfulness charged in such cases, which are denied in the answer, and the denials followed by a statement claimed to be the facts concerning the affair. This statement was treated as new matter, and denied in the reply. The case was tried by a jury, who returned a verdict for the respondent in the sum of $1,000 upon which the judgment appealed from was entered. The appellant seeks to have this judgment reversed upon exceptions taken at the trial, which are shown in the opinion of the court, as far as necessary to an understanding of the case.

(Syllabus by the Court.)

In the trial of an action against a physician and surgeon for alleged unskillfulness and negligence in the treatment of a special case of sickness or infirmity which he is employed to attend, a liability cannot be established against him in consequence of his failure to learn the peculiar condition of the patient in another respect, unless the evidence clearly shows that he does not possess such a reasonable degree of learning and skill as is requisite for the practice of his profession, or that he did not exercise his best judgment and ordinary care and diligence, to discover whether such condition existed or not.

And where, in such a case, it appeared that there was goodreason for believing that such condition did not exist, and that thephysician applied all the test known to medical science which could be employed, under the circumstances of the case to ascertain such fact, and was unable to detect it held, that a cause of action against him on account of such failure was not made out, and that a nonsuit, if properly applied for, should have been granted.

The provision of the Civil Code of this state which authorizes the party producing a witness to contradict him by other evidence, and to show that the witness has made at other times statements inconsistent with his present testimony does not entitle the party producing the witness to inquire of him as to his having made statements at other times regarding matters upon which he is examined, but concerning which he denied any knowledge, except for the purpose of refreshing the witness' recollection as to such matters.

Said provision of the Code was not intended to allow the party to prove matters favorable to his side of the case by the unsworn statements of persons not parties to the action, but to prevent him from being bound by testimony against him given by his own witness: that is, it enables the party, in such case, to weaken the force of such testimony by impeaching the witness in the manner specified in the provision.

The opinions of experts as evidence upon questions of medical science or treatment, although based upon hypothetical statements, are entitled to the same consideration as other direct oral testimony, when such statements are found to be real. Then the facts cease to be hypothetical, and for the purposes of the case, become fixed and certain.

An instruction given by a trial court to a jury as to the law to be applied, in case they found certain facts, where there was no evidence in the case which would justify such a finding, held to be irrelevant and erroneous.

An exception to an instruction given by a trial court to a jury, where the exception is only to a part of the instruction, must specify the particular portion of the instruction excepted to; otherwise, an appellate court will not consider it.

George H. Williams, for appellant.

Alfred F. Sears, Jr., for respondent.

THAYER, C.J., (after stating the facts as above.)

The grounds upon which the appellant claims a reversal of the judgment appealed from are, mainly, that the circuit court erred in its refusal to nonsuit the respondent upon motion of the appellant's counsel made at the trial; that it erred in permitting the respondent's counsel to inquire of their own witness, Dr. W.E. Rinehart, at the trial, if, at a certain time and place, in the presence of J.V. Bridges and wife, he did not say, in reference to an operation performed by appellant upon respondent, in which a growth had been removed from the neck of the womb: "It was a bad job. Mrs. Langford had no cancer It was a growth on the womb, prevalent in the case of pregnant women; and she could have been operated upon on his table in the doctor's office for a small fee, and have gone about her business at once,"--or words to that effect; and in allowing the testimony of said witness to be contradicted upon that point, and the said J.V. Bridges to testify that the witness made such statement; and that the court also erred in giving certain instructions to the jury, which are hereafter more particularly referred to.

The first and most important question to be considered is the one arising upon

the motion for a nonsuit. It appears from the pleadings in the case, and the bill of exceptions contained in the transcript, that the respondent on the 22d day of November, 1887, applied to the appellant as a surgeon and physician for medical treatment. The respondent was a married lady,--was the wife of Mr. George Langford, who has been a resident of the city of Portland for a number of years past; that she had given birth to three children, two of whom were then living; and she had also had two miscarriages. It appears that she had been suffering more or less for a long time from an affection of the womb; that the neck of it had been lacerated in giving birth to her eldest child, a boy, who at the time of her application for treatment was about 16 years of age; that the difficulty at times had occasioned excessive hemorrhage, and been a source of great annoyance and suffering; that, some six or seven years prior to her application to the appellant, she had been treated by another physician, Mrs. Dr. Owens Adair, for some trouble of the stomach; that said physician examined her, and, she testified upon the trial, found a lacerated and torn condition of the neck of the womb, presenting what doctors call a "granulated surface," which looked raw and sore. The witness testified "I treated that, and found that she had repeated hemorrhages. I do not remember that they occurred excepting at her regular periods of menstruation. I treated her for that. I do not remember that I gave her any medicine for it, but I do remember that I considered it due to some enlarged condition of the body of the womb, and applied tincture of iodine on what we call an 'applicater,' and that month she missed her regular flow, and improved very rapidly from not having lost any blood. The next month she had her regular menstrual flow, and considered herself well; and that is the last I ever knew of Mrs. Langford professionally."

Another physician, Mrs. Dr. Hunt, had treated respondent from February, 1887, until in April of that year, and had called in as consultant Dr. Kenneth McKenzie. Mrs. Dr. Hunt testified, as a witness upon the stand, that the respondent came to her office in February, 1887, complaining of frequent irregular profuse hemorrhage, exhaustion, and pain; and that she found, upon a digital examination, a growth on the side of the uterus about the size of a dollar. That the most gentle touch of it gave pain, and caused great hemorrhage; so much so that it filled the witness' hand, and ran down her arm, when she made the examination. That she called in counsel, at the request of the respondent, to know whether it was really malignant growth or benign growth, and with a view to an operation. The respondent was twice in her office,--once, the last of March; and once, she thought, about the 7th or 8th of April. That they gave her an anaesthetic, and removed a small piece of the growth, which was sent to Dr. Kelly for microscopical examination. That they found one third of the posterior lip of the uterus, and the anterior also, involved somewhat with that papular mass, dark colored,--a sort of blue, red bluish, color; then a lighter, yellowish tint. That she had heard the testimony of Dr. Jones and Mrs. Young; and taking into consideration their testimony upon the subject, and what she knew personally of the condition of the disease, she was of the opinion that it was cancerous. That she told respondent of the same, and advised an operation as soon as possible. That the respondent came to her office, making ready to go east. That it was the great hemorrhage which gave her alarm. That all witness was trying to do was to relieve and check that, so that respondent might go east, and there have an operation performed. That witness gave that advice to her and to her husband.

Dr McKenzie, the consultant with Mrs. Dr. Hunt, gave testimony, as a witness in the case, which fully corroborated the testimony of the latter in regard to the condition of the respondent, and the extent and severity of her affliction at the time. He testified: "We made a careful examination, and found a large excrescence or growth projecting from the posterior lip of the womb, the surface of which was soft and pliable, readily broken down, and bled at the slightest touch." This seems to have been the condition the respondent was in six months prior to her application to appellant for treatment, and in all human probability the disease had made alarming progress during that time, although the respondent appears to have been inclined to represent her general health as favorably as possible. The tumor, however, was there, still developing, and exhibiting...