Lippold v. Kidd

• Decision Date: 11 July 1928
• Citation: 269 P. 210,126 Or. 160
• Parties: LIPPOLD v. KIDD.
• Court: Oregon Supreme Court

269 P. 210

126 Or. 160

LIPPOLD v. KIDD.

Supreme Court of Oregon

July 11, 1928

Department 1.

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

Action by F. J. Lippold against Dr. Allen E. Kidd. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

This is an action for malpractice against a physician who is an eye specialist. A small sliver of steel entered the plaintiff's left eye January 31, 1924; he employed the defendant to attend to the injury, and at that time informed the latter that he believed an object had entered his eye. The defendant made an examination which convinced him that the plaintiff was mistaken; he bandaged the eye, and later gave the plaintiff six or seven more treatments. Upon the occasion of the last treatment, he instructed the plaintiff to return if he experienced further pain or trouble with the eye. The plaintiff did not return. About seven months later the plaintiff consulted another physician, who discovered the foreign substance in the eye, but found it impossible to withdraw it by the use of a magnet. A few days later this physician removed the eye. The plaintiff charges the defendant with negligence. In the circuit court the verdict and judgment were for the plaintiff. The defendant has appealed, and presents for our consideration seventeen assignments of error.

F. S Senn, of Portland (Omar C. Spencer, of Portland, on the brief), for appellant.

Roy F Shields, of Portland (Robert R. Rankin and W. A. Robbins both of Portland, on the brief), for respondent.

ROSSMAN J. (after stating the facts as above).

Much of the testimony upon which the plaintiff predicated his charges of negligence was objected to by the defendant. The latter's particular objections were that this testimony was inadmissible to establish the charge that the defendant was guilty of negligence, and that the plaintiff's inquiries were unaccompanied with a hypothesis showing the treatment afforded the plaintiff by the defendant. Previously the plaintiff had outlined in his testimony quite fully the specific efforts which the defendant had made to determine whether any object had invaded the eye. These services, as described by the plaintiff, consisted of examinations of the exterior of the eye, a painful examination of a scar on the white of the eye caused by the impact of the flying particle, and two or more examinations of the interior of the eye with a retinascope. When the defendant's services were engaged, the left eyelid was injured, rent and swollen. This caused irritation of the surface of the eye; the plaintiff complained that he could see a blood clot and a foreign particle in the interior of his eye, and upon the surface of the eye, or in the rent of the eyelid, the defendant found a small foreign particle.

The plaintiff did not embody in his questions a description of the injured eye, plaintiff's complaint to the defendant and the efforts which the defendant made to locate the object. He never submitted to his expert witnesses, Drs. Wetherbee and Babbitt, hypothetically the foregoing symptoms and course of treatment for the purpose of inquiring whether these services under those circumstances conformed to the standard established by eye specialists in the city of Portland and similar communities. In Emerson v. Lumbermen's Hospital Association, 100 Or. 472, 198 P. 231, Mr. Justice Bean, speaking on behalf of the court, said:

"In a malpractice case the opinion of medical men may be received in evidence as to what would be the proper treatment, but in order for such expert witnesses to have a basis for their testimony they should be informed as to what treatment was given the patient, or what the physician in attendance had failed to do. * * *"

In Lehman v. Knott, 100 Or. 59, 196 P. 476, this court said:

"As an expert is not allowed to draw inferences or conclusions of fact from the evidence, his opinion should be exact upon a hypothetical statement of fact. It is the privilege of counsel to assume any state of facts which there is any testimony tending to prove, and to have the opinion of the expert based on the facts assumed. * * * In a malpractice case the question whether a physician has in a given case adopted the proper treatment is one in which the opinions of medical men may be received in evidence, and they may state whether in their opinion the treatment was proper or not, whether it was in conformity with the rules. * * *"

Sound reason is the foundation for this requirement that the facts should be stated to the witness hypothetically. The expert witness is granted the privilege of expressing to the jury an opinion because his superior training enables him to arrive at a conclusion which is more likely to be sound than that of the average juror. But all opinions are based upon facts; generally the recipient of an opinion is at a loss to know what use he may advisedly make of an expert's opinion, unless he also knows what facts the expert took for granted when he formulated his conclusion. And it is equally necessary to the expert that, before he is required to express an opinion, he should be supplied with the necessary data. We see this exemplified in the daily affairs of life: A building contractor cannot safely submit a bid without detailed plans and specifications, and his bid is worthless to an owner, unless plans and specifications give the owner a detailed impression of the contemplated structure. The hypothetical question serves to the court and the jury the purpose of the plans and specifications. Upon the other hand, Drs. Wetherbee and Babbitt testified concerning the use of the ophthalmoscope and X-ray as means employed by eye specialists, without having been first acquainted with the symptoms apparent when the plaintiff came to the defendant. We do not believe that their answers are capable of an interpretation that in all eye injury cases these instrumentalities are used. If not, then we are concerned only with the case which the plaintiff brought to the defendant January 31st.

But Drs. Wetherbee and Babbitt described to the jury the condition of the eye as it was when they first saw it August 30, 1924, 7 months after the plaintiff had discontinued the defendant's services. In the meantime, the pain in the eye had first subsided, and later became excruciating; the vision of the eye had materially lessened, the rent in the eyelid had become healed, the interior of the eyeball had become highly inflamed, and the scar on the surface of the white of the eye had closed. The lower court permitted Drs. Wetherbee and Babbitt to outline fully the efforts which they expended to locate the foreign object. The care, knowledge, and skill of these specialists, commendable as it is, is not the yardstick by which the defendant's case is to be determined. Further, it will be observed that the circumstances had materially changed. The passage of 7 months' time first brought a diminution of the pain, and then a marked increase of it, accompanied by a lessening of vision. This perhaps would be sufficient in itself to convince a physician that the surface scar could not be the cause of the condition from which the patient was suffering. Also, when the plaintiff came to these physicians, there was no blood clot within the eye that might have been the cause of the pains within, nor was there a swelling in the eyelid to irritate the surface of the eye; likewise there was no foreign particle on the eye which might have misled the physician into the belief that it was the object which had caused the injury. August 30th the scar upon the white of the eye which must have given the plaintiff some pain had healed.

In order to sustain the questions, counsel for the plaintiff relies upon the rule that, when an expert possesses knowledge, which he gained from personal observation, he may employ it as the premise for a conclusion, and impart the latter to the tribunal in response to the ordinary type of a question, and that a hypothetical question is necessary only where the exert is asked to give his opinion upon facts which he has not gained by the process of personal observation. It is true that, if the expert testfies to a conclusion based upon a premise with which he has become familiar through personal observation, the question which elicits from him the conclusion need not be a hypothetical one. In such an instance he supplies both premise and conclusion. But, where he is unfamiliar with the premise, and is asked to express a conclusion, a premise must be stated to him in a hypothetical form. Wigmore on Ev. (2d Ed.) 676; Jones, Com. on Ev. (2d Ed.), § 1325 and § 1333. The material fact in this case was what attention ordinary care would have bestowed upon the eye as the facts appeared to an eye specialist on January 31st. In lieu of that, the witnesses apparently responded in regard to the situation as of August 30th when the plaintiff called upon Drs. Wetherbee and Babbitt. If Drs. Wetherbee and Babbitt supplied both premise and conclusion, their answers were insufficient to establish negligence because the only premise with which they were familiar was that of August 30th. If they undertook to base their conclusions upon the facts of January 31st, the question should have supplied the premise in hypothetical form. Moreover, the premise itself was in dispute. Thus the plaintiff and defendant did not agree as to whether a retinascope or ophthalmoscope was used; they did not agree as to what took place upon the occasion of the second treatment. Be this as it may, neither Dr. Wetherbee nor Dr. Babbitt testified that under the circumstances as they appeared to the defendant January 31st, his treatment fell short of the established standard. Drs. Wetherbee and...