Livingston v. Portland General Hospital Ass'n
| Decision Date | 21 December 1960 |
| Citation | 225 Or. 416,357 P.2d 543 |
| Parties | Katherine M. LIVINGSTON, Respondent, v. PORTLAND GENERAL HOSPITAL ASSOCIATION, a corporation, and Donald Nickelsen, Appellants. |
| Court | Oregon Supreme Court |
John C. Beatty, Jr., Portland, argued the cause for appellants. On the briefs were Dusenbery, Martin, Beatty & Parks, Portland, and Orville T. Boyle, Portland.
Dwight L. Schwab, Portland, argued the cause for respondent. With him on the brief were Hutchinson, Schwab & Burdick, Portland, and Donald H. Joyce, Portland.
Before McALLISTER, C. J., and WARNER, PERRY, GOODWIN and KING, JJ.
This is an action against the defendants for personal injuries suffered by the plaintiff as a result of alleged malpractice.
The defendant Dr. W. Donald Nickelsen was a general practitioner in Portland, Oregon. The defendant Portland General Hospital was partially owned and generally controlled by Dr. Nickelsen.
The plaintiff, on February 27, 1953, was 68 years of age. She was in very good health except that she was considerably overweight, her weight being approximately 210 pounds.
Mrs. Livingston, the plaintiff, also known as Mrs. Gilham on account of remarriage between the date of the accident and the time of trial, was the owner and operator of a drug store adjacent to the portland General Hospital. On February 27, 1953, she fell on the floor of her drug store and landed on her left side and on her outstretched left arm and left hand.
Dr. W. Donald Nickelsen was called and he immediately came from the hospital and, with the help of an assistant, placed the plaintiff in a wheel chair and took her to the defendant hospital. Dr. Nickelsen examined and took x-rays of the plaintiff's arm and shoulder. He found a fracture of the left humerus and placed her left arm in a cast which extended from the shoulder to the fingers of the hand and held the elbow at about a 90 degree angle.
The plaintiff complained to the defendant when the cast was first put on that it was too tight but the defendant assured her it was all right and that the tight feeling was the natural swelling of the arm and was nothing to be alarmed about. The plaintiff returned to her home later in the day of February 27.
On March 1, 1953, after many complaints by the plaintiff that the cast was too tight, and considerable swelling in her hand and shoulder and some discoloration in the hand and fingers, the plaintiff was readmitted to the hospital where she remained until the afternoon of March 4, 1953. During this time the plaintiff's left arm was placed on a pillow and heat was applied.
Dr. Nickelsen was present while the plaintiff was in the hospital and saw the plaintiff's condition and heard her complaints but he did not deem it necessary to split, or bivalve, the cast or to remove it. He did trim off the ends of the cast some and shortened it slightly.
About the time the plaintiff was discharged from the hospital, Dr. Nickelsen was planning and did take a trip to Mexico, lasting about two weeks. The plaintiff asked him what doctor would be assigned to her during his absence and she claims he assured her there were plenty of doctors around there and that the technician would take care of her.
Mrs. Livingston called and made a number to trips to the hospital during Dr. Nickelsen's absence. In each instance, she complained bitterly of the severe pain and pressure from the cast and asked for a doctor. No other doctor was called to see her and the only treatment administered was heat applied to the hand and arm.
On April 3, 1953, Mrs. Livingston was again admitted to the hospital and the cast was bivalved and removed by Dr. Nickelsen. At this point there is at least one important variation in the testimony. Dr. Nickelsen testified that there was absolutely no obstruction inside the cast. Mrs. Livingston testified there was a roll of plaster and gauze, approximately the size and shape of a cigarette, imbedded in the flesh in the inside of the arm at the elbow joint, that the flesh had partly grown over it, that the adjacent skin had a greenish color and the odor was very bad.
The plaintiff was released from the hospital the next day April 4, 1953, and shortly thereafter quit going to the defendant for treatment and sought and received other medical treatment.
The trial of the case was originally started in 1957 and was terminated by a mistrial; and, after much delay, was again heard in late 1959 and a jury verdict was returned on November 6, 1959, in favor of the plaintiff and against both defendants in the amount of $17,500.
The defendants had duly moved for a directed verdict which was denied. After judgment was entered on the verdict, the defendants moved for judgment notwithstanding the verdict and for a new trial. This motion was denied by the circuit court, hence, this appeal.
The general question to be determined is whether the defendants or either of them, should be held for malpractice and negligence, as alleged, in their treatment of the plaintiff.
The defendants' first assignment of eror is:
The court erred in failing to direct a verdict and in denying the motion for judgment notwithstanding the verdict. The motion was stated as follows:
'Mr. Beatty: Now, at this time both defendants move the Court to direct a verdict against the plaintiff and in favor of each defendant upon the ground and for the reason that there is no competent evidence in this case that establishes that either defendant was negligent in any particular alleged in plaintiff's complaint which proximately caused any damage which plaintiff has complained of in her complaint.
'I might say only this further by way of argument, that it is our position that under the law of this State that the testimony of Dr. Mickel has been proved to be so unreliable as to be worthless and, consequently, his testimony is insufficient to make out a jury question.'
By the latter statement above it could be construed that the defendants limited their position in the motion for directed verdict to the credibility of the witness which is a jury question. However, we will consider the entire question of whether a directed verdict should have been granted.
In considering this motion, of course, the general rule will be followed that all evidence favorable to the plaintiff and all reasonable inferences therefrom must be taken as true. Hicklin v. Anders, 201 Or. 128, 253 P.2d 897, 269 P.2d 521; Stroh v. Rhoads, 188 Or. 563, 217 P.2d 245; Pond v. Jantzen Knitting Mills, 183 Or. 255, 190 P.2d 141; Carruthers v. Phillips, 169 Or. 636, 131 P.2d 193; Ellenberger v. Freemont Land Co., 165 Or. 375, 107 P.2d 837.
The evidence showed in this case that the cast was left on the arm for a period of over five weeks. During all that time the plaintiff complained constantly and bitterly that the pain and pressure were terrific and unbearable. The attention of each of the defendants was called to this many, many times. She was admitted to and remained in the hospital several days on account of the swelling and pain. There was testimony of discoloration of the hand and fingers on the back side, and that her hand and fingers were later cold and white on the inside.
As above mentioned, the plaintiff testified that a piece of plaster about the size and shape of a cigarette was imbedded in the flesh inside her arm at the elbow joint.
Lillian B. Anderson, a witness for the plaintiff, not an expert, testified regarding that place in the plaintiff's arm immediately after the cast was removed, as follows:
'The Court: * * * [S]tate what you observed.
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Smith v. Fields Chevrolet Co.
...correctly informed as to the law. The instructions must be considered as a whole and not in fragments. Livingston v. Portland Gen. Hospital Ass'n, 225 Or. 416, 425, 357 P.2d 543 (1961). In a number of ways, the jury was told that the defendants were entitled to use reasonable force to remov......