Matteson v. Thiel

• Decision Date: 22 April 1931
• Docket Number: 22703.
• Parties: MATTESON et ux. v. THIEL.
• Court: Washington Supreme Court

298 P. 333

162 Wash. 193

MATTESON et ux. v. THIEL.

No. 22703.

Supreme Court of Washington

April 22, 1931

Department 1.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Action by M. R. Matteson and wife against Henry F. Thiel. From an order granting plaintiffs' motion for a new trial defendant appeals.

Affirmed.

Roberts Skeel & Holman and Frank Hunter, all of Seattle, for appellant.

Geo. B Cole and John Wesley Dolby, all of Seattle, for respondents.

MITCHELL J.

Mr. and Mrs. Matteson brought this action against Henry F. Thiel, M D., for damages on account of alleged negligence in a surgical operation on Mrs. Matteson. She had an abdominal operation in 1915, and two others for the same trouble, one in 1922 and another in 1923. All of those operations were by surgeons other than the defendant. In June, 1927, the defendant operated on her for the same malady. After this operation, she suffered pain in her lower left abdomen until June, 1929, when another surgeon removed a round, curved, surgeon's needle from her lower left abdomen. Defendant admitted in his testimony that the needle is the kind that he and other surgeons commonly use in operating in the lower abdomen, and in his pleading and testimony denied that he left the needle in her abdomen. Her testimony tended to show that, after the defendant operated, 'the pain was terrible, practically all the while until the needle was removed, especially the last six or seven months'; that she had no such pains prior to his operating nor any after the needle was removed. The testimony on her behalf tended to show further that all needles used and available in the three operations, prior to the one performed by the defendant, were accounted for, and that not one of them was left in the body of the plaintiff. The trial by a jury resulted in a verdict for the defendant. Plaintiffs' motion for a new trial on the several statutory grounds was granted, as expressed in the order, 'solely by reason of the giving of Instruction No. 6.' Defendant has appealed from the order.

Instruction No. 3 in effect stated that negligence must be proved by a fair preponderance of the evidence by the one alleging it, that the defendant surgeon is presumed to have properly used due care, and that, if the jury found the weight of the evidence in favor of the defendant, or equally balanced, the verdict should be for the defendant. Instruction No. 5 was as follows: 'You are further instructed that plaintiffs are not required to prove their case beyond a reasonable doubt nor by direct and positive evidence. It is only necessary that plaintiffs show a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable; that is, if you believe from a fair preponderance of the evidence in this case that the needle in question was not left in the abdomen of plaintiff, Mrs. Matteson, by the surgeon who performed the previous operations, but that it was left in the abdomen of said plaintiff, Mrs. Matteson, by the defendant in this case, at the time he operated upon her on May 23, 1927, then and in that event plaintiffs are entitled to recover such damages as you believe from all the evidence said plaintiff has suffered and sustained.'

The controlling feature of instruction No. 5 was taken from the case of Helland v. Bridenstine, 55 Wash. 470, 104 P. 626, 628, a malpractice case, wherein it was said: 'The respondent [plaintiff] was not required to prove her case beyond a reasonable doubt, nor by direct and positive evidence. It was only necessary that she show a chain of circumstances from which the ultimate fact required to be established is reasonably and naturally inferable.'

Besides, no exception was taken to any part of instructions No. 3 and No. 5 by either party to the action so that they became the law of the case. But, upon request of the defendant, appellant here, the court gave instruction No. 6 as follows: 'You are instructed that where circumstantial evidence is relied upon to establish a cause of damage or injury, mere circumstances in a case of this kind are not sufficient to establish a case against the defendant, unless they exclude every reasonable hypothesis of other operating surgeons having inadvertently left the needle in the plaintiff. If the circumstances do not exclude such an hypothesis as unreasonable, your verdict must be for the defendant surgeon.'

Counsel ...