Lindquist v. Dengel, 45737

• Decision Date: 31 May 1979
• Docket Number: No. 45737,45737
• Citation: 92 Wn.2d 257,595 P.2d 934
• Parties: Bruce LINDQUIST and Audrey Lindquist, his wife, Respondents, v. Dr. Daniel M. DENGEL and Jane Doe Dengel, his wife, Everett B. Myer and Jane Doe Myer, his wife, and the partnership of Dr. Daniel M. Dengel and Everett B. Myer, known as the Okanogan Valley Clinic, Petitioners.
• Court: Washington Supreme Court

Page 257

92 Wn.2d 257

595 P.2d 934

Bruce LINDQUIST and Audrey Lindquist, his wife, Respondents, v. Dr. Daniel M. DENGEL and Jane Doe Dengel, his wife, Everett B. Myer and Jane Doe Myer, his wife, and the partnership of Dr. Daniel M. Dengel and Everett B. Myer, known as the Okanogan Valley Clinic, Petitioners.

No. 45737.

Supreme Court of Washington, En Banc.

May 31, 1979.

Gavin, Robinson, Kendrick, Redman & Mays, William H. Mays, Yakima, for petitioners.

Edward A. Dawson, Spokane, for respondents.

HOROWITZ, Justice.

This case raises the question whether we must carve out an exception for physicians to the general rule that a tort-feasor is liable for the exacerbation, or augmentation in severity, of a plaintiff's injuries resulting from later medical treatment where the tort-feasor's negligence arguably created the need for that treatment. We hold the rule does apply to physicians and affirm the decision of the Court of Appeals.

Respondent Bruce Lindquist first consulted petitioner Dr. Daniel Dengel, a family practitioner, in February 1972. A family practitioner is not considered to be a specialist, and may be described as a general practitioner. At the time of the February visit Mr. Lindquist had a fever and other symptoms suggesting bronchitis. He had a history of lung disease which may have been tuberculosis, and as a part of the examination Dr. Dengel had a chest X-ray made. The X-ray was sent to Dr. George Rodkey of the Edgecliff Tuberculosis Sanitarium for evaluation. Dr. Rodkey examined the film, found evidence of possible tuberculosis, and recommended both that sputum studies be made to determine whether the disease was active, and that further X-rays be made in 3 to 4 months.

In April Dr. Dengel discussed these recommendations with Mr. Lindquist and gave him a complete physical examination. Dr. Dengel testified that he ordered his nurse to give Mr. Lindquist a container for sputum, and that he himself gave Mr. Lindquist directions for giving the sample and sending it to a laboratory for analysis. Mr. Lindquist testified he was not given such a container. Dr. Dengel further testified that he told Mr. Lindquist to schedule a repeat X-ray pursuant to Dr. Rodkey's recommendation. Mr. Lindquist did not do so, however, and the X-ray was not taken.

Although Dr. Dengel treated Mr. Lindquist for an unrelated illness in May, 1972, no further discussion or treatment of the lung problem occurred until October of 1973, when Mr. Lindquist consulted the doctor for treatment of pneumonia-like symptoms. Mr. Lindquist did not respond to treatment and was hospitalized. Tests done during that hospitalization confirmed a diagnosis of tuberculosis, and Dr. Dengel immediately referred Mr. Lindquist to Dr. Rodkey of the Edgecliff Clinic for further treatment. Dr. Dengel thereafter had no responsibility for Mr. Lindquist's treatment and was not consulted again until after Mr. Lindquist was discharged from the Edgecliff Clinic.

At the Edgecliff Clinic Dr. Rodkey surgically removed a substantial portion of Mr. Lindquist's left lung. Although Mr. Lindquist is cured of the disease, he alleges he is permanently partially disabled as a result of the loss of a part of his lung, and is unable to resume his former job. He testified he must now be confined to more sedentary jobs than he performed in the past, and has suffered a substantial loss in salary.

Mr. Lindquist brought suit against Dr. Dengel, alleging the doctor negligently failed to make a diagnosis early enough to prevent the ultimate development of his disease which necessitated surgery. He introduced evidence at trial by means of the testimony of Dr. Rodkey that if the disease had been diagnosed earlier less drastic forms of treatment could have been used, surgery would not have been required, and Mr. Lindquist's work potential would not have been diminished.

Dr. Dengel introduced evidence, also by means of an expert witness, that surgery was not an appropriate treatment for Mr. Lindquist's condition even at the more advanced stage diagnosed in the fall of 1973. The witness, Dr. Leonard Hudson, testified that drug therapy was the treatment which should have been given, and that Mr. Lindquist's medical records do not indicate that surgery should have been performed.

The jury was instructed on the rule that physicians acting independently of one another in diagnosing and treating a patient are not liable for the negligence of the other. ¹ The court rejected Mr. Lindquist's proposed instruction that a negligent doctor cannot avoid liability for aggravation of injuries on the ground they resulted from negligent later treatment, where that treatment was necessitated by his own negligence. ² The jury found Mr. Lindquist 50 percent negligent and Dr. Dengel 50 percent negligent, and set total damages at $5000. Judgment was accordingly entered for Mr. Lindquist in the amount of $2500.

Mr. Lindquist, hereinafter referred to as respondent, appealed the judgment, contending the trial court's failure to give his requested instruction led the jury to believe Dr. Dengel was not responsible for the bulk of his injuries which resulted from the surgery, and thus to assess damages at such a low figure. The Court of Appeals agreed that the instruction should have been given, holding that the failure to give the requested instruction, while giving Instruction No. 15 regarding separate liability, effectively excused the doctor from liability for damages arising from subsequent medical treatment, even though his alleged negligence may have created the need for that treatment. The Court of Appeals thus remanded for a new trial on all issues. This court granted Dr. Dengel's petition for discretionary review. We affirm.

The key argument urged by petitioner is that the tort rule of liability for harm resulting from medical treatment necessitated by a tort-feasor's negligent conduct should not apply where the alleged tort-feasor is a physician. Thus, he claims, respondent's requested instruction on this rule was properly rejected. He urges first that the rule was not intended to apply to physicians, and second, that application of the rule would discourage general practitioners from referring patients to specialists. We cannot agree.

The basic rule of liability for harm resulting from treatment of injuries caused by a tort-feasor's negligent conduct is stated in Restatement (Second) of Torts § 457 (1965):

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

This rule has long been applied in this state. See Adams v. Allstate Ins. Co., 58 Wash.2d 659, 669, 364 P.2d 804 (1961); Martin v. Cunningham, 93 Wash. 517, 518, 161 P. 355 (1916). See also DeNike v. Mowery, 69 Wash.2d 357, 368-371, 418 P.2d 1010 (1966). The rationale of...