Malila v. Meacham

• Decision Date: 15 November 1949
• Citation: 187 Or. 330,211 P.2d 747
• Parties: MALILA <I>v.</I> MEACHAM
• Court: Oregon Supreme Court

187 Or. 330

211 P.2d 747

MALILAv.

MEACHAM

Supreme Court of Oregon.

Argued September 27, 1949.

Reversed November 15, 1949.

Evidence — Malpractice — Proper treatment — Opinions of medical men

1. In a malpractice case, question whether a physician has 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 and in conformity with the rules and practice of the profession.

Physicians and surgeons — Treatment — Standard of care and skill — General practice — Specialist

2. In treating a patient a physician must exercise such reasonable and ordinary care, skill and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases, and medical practitioner who specializes in any branch of his profession must exercise greater skill than one who engages in general practice, and the same rules apply equally to dentists.

Physicians and surgeons — Malpractice — Burden of proof — Standard of care and skill

3. In action against dentist for malpractice, plaintiff had burden of proving that conduct of dentist in his treatment did not measure up to standard exercised by other dentists in similar practice and in same neighborhood.

Physicians and surgeons — Malpractice — Opinion of qualified medical expert — Evidence of negligence

4. In a malpractice case, opinion of a qualified medical expert that a given treatment is not proper constitutes evidence of negligence.

Evidence — Medical witness — Qualify as an expert

5. A medical witness is not permitted to testify as an expert unless he has first qualified by showing that he possesses the requisite skill and knowledge to arrive at an intelligent conclusion touching the subject-matter of the dispute.

Evidence — Malpractice — Physicians — Qualified as expert witness — Assumed to have knowledge

6. In a malpractice case that includes knowledge of the method of treatment customarily used by other members of profession practicing in locality where alleged negligent act occurred, physicians who have practiced at that place and who have been found by court to be qualified expert witnesses must be assumed to have such knowledge, and when such a witness answers question whether a particular treatment is proper or improper it

is unreasonable to suppose that opinion he gives has reference to anything other than the standard of care generally observed by the profession in the particular locality.

Evidence — Proper — Improper — Treatment — Expert medical witness — Standard of care

7. The words "proper" and "improper" used by an expert medical witness with reference to treatment of a patient refer to standard of care exercised by similarly skilled persons in same neighborhood, since one definition of the word "proper" is conforming to a standard of usage or action.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Proper".

Physicians and surgeons — Qualified expert testimony — Improper treatment — Prima facie case — Malpractice

8. Testimony of qualified expert witness that treatment given patient by dentist was improper was equivalent to expert's saying that treatment was not in accordance with accepted standards in profession in locality and would be sufficient to make out a prima facie case of malpractice against dentist.

Physicians and surgeons — History of plaintiff's injury — Complaints — Admissible

9. In malpractice action against dentist whom plaintiff consulted for purpose of treatment, testimony with respect to history of plaintiff's injury and her complaints was admissible.

Physicians and surgeons — Warrantor — "Res ipsa loquitur"

10. Physician or dentist is not a warrantor of cures, and the doctrine of "res ipsa loquitur" does not apply in malpractice cases.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Res Ipsa Loquitur".

Physicians and surgeons — Reasonable diligence — Skill

11. If a regularly licensed physician or dentist with reasonable diligence employs skill of which he is possessed in treating a surgical case, he is not liable for an error of judgment.

Physicians and surgeons — Malpractice — Judgment — Intelligence — Skill — Knowledge and care

12. To avoid liability for malpractice, judgment of physician or surgeon must be founded in his intelligence, skill, knowledge and care.

Physicians and surgeons — Malpractice — Dentist — Jury question

13. In action against dentist for malpractice in extracting teeth in the presence of trench mouth, while teeth were infected and plaintiff was suffering, question whether relief could have been otherwise afforded than by extraction was for jury.

Evidence — Experts — Difference of opinion — Jury question

14. Where there is a difference of opinion among experts as to a fact, question should be submitted to jury.

Physicians and surgeons — Dentist — Negligence — Jury

15. Evidence was sufficient to submit to jury question whether dentist was negligent in extracting plaintiff's teeth, even though they were infected and plaintiff was suffering from pain, in the presence of acute trench mouth, so as to entitle plaintiff to damages for resulting numbness in portion of face.

New trial — Evidence conflicting — Negligence — Trial court — New trial — Insufficiency of evidence

16. Where evidence as to whether dentist was negligent in extracting tooth of plaintiff in the presence of trench mouth was conflicting, trial court could not set aside verdict for plaintiff and order a new trial on ground of insufficiency of evidence.

                  See: 32 C.J.S., Evidence, § 555
                

Appeal from Circuit Court, Multnomah County.

CHARLES W. REDDING, Judge.

T.H. Ryan argued the cause for appellant. On the brief were Ryan & Pelay, of Portland.

Frank S. Senn argued the cause for respondent. On the brief were Senn, Recken & Recken, of Portland.

Before LUSK, Chief Justice, and BRAND, ROSSMAN, HAY and PAGE, Justices.

Mildred E. Malila sued P.L. Meacham, a dentist, for malpractice.

The Circuit Court, Multnomah County, Charles W. Redding, J., set aside a verdict for the plaintiff and ordered a new trial, and plaintiff appealed.

The Supreme Court, Lusk, C.J., reversed the judgment, and held that evidence of defendant's negligence was sufficient for the jury.

LUSK, C.J.

Plaintiff sued the defendant, a dentist, for malpractice, and recovered a judgment based upon the verdict of the jury. Upon motion of the defendant the court entered an order setting the verdict aside and granting a new trial. From that order the plaintiff has appealed.

The principal issue of fact developed in the testimony was whether the defendant was negligent in extracting two of plaintiff's teeth at a time when plaintiff was suffering from Vincent's infection or trench mouth. It was plaintiff's contention that the infection was acute and that the indicated treatment was to clear up the trench mouth condition before resorting to surgery; that to extract the teeth in the presence of the infection was likely to cause its spread, and that in fact the infection did spread, attacking the right inferior dental or mandibular nerve, with the result that the plaintiff sustained a loss of feeling in her right lower lip and in the right lower jaw. The defendant, on the other hand, contended that the trench mouth condition was not acute, and that, in view of the abscessed condition of the teeth and the intense pain from which the plaintiff was suffering, immediate extraction was imperative.

The trial judge set aside the judgment because, in his view, there was no medical testimony of the kind which the law requires to support it. He recited in the order that "it is indispensable to the plaintiff's right to recover in this case that testimony be offered by a qualified expert that the practice followed by the defendant * * * was not in keeping with the degree of care which is ordinarily and usually exercised by the ordinarily careful and skillful dentist specializing in extractions under like circumstances in Portland and like localities." The only attempt by the plaintiff to meet this test, it was said, was the testimony of Dr. Lloyd M. McCormick, a dentist called as a witness by the plaintiff, to whom a hypothetical set of facts was stated, after which the witness was asked, "Q Assuming that those facts did exist, would you say it was proper practice to extract a tooth under those conditions?", to which he answered: "I would say it was not proper practice." The trial judge concluded that the testimony quoted did not suffice to make out a prima facie case of malpractice, citing as authority the following statement from Lehman v. Knott, 100 Or. 59, 71, 196 P. 476:

"The distinction between improper treatment and negligent treatment is not as broad as it is vital. Improper treatment by a surgeon might be due to an error in judgment of a skillful surgeon honestly and carefully exercised, and not constitute negligent treatment: Dishman v. Northern Pac. Beneficial Assn., 96 Wash. 182 (164 Pac. 943)."

1. In Lehman v. Knott the court held that it was error to allow a medical witness to testify whether the application of side splints by the defendant physician was "unskillful and negligent". To the same effect are Schamoni v. Semler, 147 Or. 353, 358, 31 P. (2d) 776; Patterson v. Howe, 102 Or. 275, 288, 202 P. 225. It was in connection with that holding that the language relied on by the trial judge and by counsel for the defendant was used. It is difficult to perceive the relevancy of this statement to the question which the court was deciding. Previously in the opinion the court had said (100 Or. 70):

"* * * 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...