Mayor v. Dowsett

JurisdictionOregon
PartiesArloine MAYOR, Appellant, v. Dr. J. W. DOWSETT, Respondent.
Citation400 P.2d 234,240 Or. 196
CourtOregon Supreme Court
Decision Date17 March 1965

James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were Koerner, Young, McColloch & Dezendorf, James C. Dezendorf, and George L. Wagner, Portland.

Cleveland C. Cory, Portland, argued the cause for respondent. With him on the brief were Rockwood, Davies, Biggs, Strayer & Stoel, Hugh L. Biggs and Robert L. Ridgley, Portland.

Before ROSSMAN, * P. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

LUSK, Justice.

This is an appeal from a judgment for the defendant based on the verdict of a jury in a medical malpractice action.

The defendant, Dr. J. W. Dowsett, is a duly licensed physician and surgeon who maintains an office in Portland, Oregon, and specializes in obstetrics. He attended the plaintiff, Arloine Mayor, a married woman, during her pregnancy and at the birth of her second child. Under his direction, Dr. L. M. Sutherland administered a spinal anesthetic shortly before the birth of the child. Following the birth plaintiff became paralyzed from the neck down and has so remained. The evidence indicates that this condition is permanent.

The plaintiff alleged in her complaint that her paralysis was caused by the negligence of the defendant in improperly positioning, handling, placing and securing plaintiff, thereby causing and permitting the spinal anesthetic solution injected in plaintiff's spine to contact, shock and destroy the motor nerves in plaintiff's spine. There were other charges of negligence, but this was the only the submitted to the jury by the trial judge.

The defendant moved for a directed verdict on the ground of insufficiency of the evidence of negligence or proximate cause. The motion was denied and the defendant urges in this Court that it should have been allowed. We will consider this question first.

Defendant does not now contend that there is no evidence of negligence. His claim is that there is no evidence that the alleged negligence was the cause of plaintiff's injury.

The plaintiff was 34 years of age in 1959. She was employed in the office of a contracting firm and also was a vocalist and derived an income from her singing. There is substantial evidence that she was in good health during her pregnancy and at the time of the birth of her child. She had no illness during this period except that for a week in September, 1959, she suffered from a cold which, however, caused her no loss of time from her job, but made it necessary for her to cancel several singing engagements. Dr. Dowsett prescribed for her cold fluids, aspirin and cough medicine. He testified that she surmounted that complaint. The last time that Dr. Dowsett saw the plaintiff before she went to the hospital was on November 2, 1959. He testified that at that time her condition was 'real good.' During delivery, Dr. Dowsett testified, '[h]er condition was excellent. She complained of nothing at all. She was real happy, * * *.' There is contradictory evidence as to plaintiff's general condition of health, but for present purposes it need not be considered.

Plaintiff was admitted to Emanuel Hospital in Portland on the evening of November 6, 1959. The following morning shortly before six o'clock she was taken to the delivery room. The defendant arrived at the hospital about seven o'clock, a. m., and attended her until the baby was born. At 9:48 a. m. Dr. L. M. Sutherland, a resident physician at the hospital, administered a saddle block spinal anesthetic at the direction of the defendant. The injection was in the lower part of the spine between the fourth and fifth lumbar vertebrae. The anesthetic, as described in a hypothetical question addressed to a medicial witness for the plaintiff, was 'a two and a half per cent Novocain, being ten per cent Novocain or Procaine in saline solution that was diluted by * * * spinal fluid from the patient herself, * * * making it one part of anesthetic solution and three parts of spinal fluid, a total of two cubic centimeters being injected into the * * * spinal canal * * *.' It is not disputed that the injection was made at a proper place and all the evidence shows that the solution used was a mild one. At 9:52 a. m. the plaintiff gave birth to a normal baby boy.

The hospital record shows that at 11:20 a. m. on November 7 the plaintiff complained of intermittent chilling, and Dr. Dowsett was notified; that at 11:45 a. m. after the plaintiff was removed to her private room, she complained of shortness of breath; and at 12:30 p. m. the following entry made by the nurse appears: 'BP 104/80. Pt rigid and movement of arms spastic--nauseated.' Again at 8 p. m. on November 7 the notation 'Shortness of breath' appears, and at 9 p. m. 'Patient seems to have difficulty breathing.'

Dr. Dowsett left the hospital at noon on November 7. At 7:15 on the morning of November 8 he received a message that the plaintiff had a convulsion and was totally unconscious. He returned immediately to the hospital. Dr. Sutherland, Dr. Bruce Kvernland, a neurological surgeon, and Dr. D. W. Clouser, an anesthesiologist, were also summoned. The hospital record shows that at 7 a. m. on November 8th the plaintiff was breathing with grunts, and at 8:30 respiration ceased. She was limp all over her body. Her neck and face and extremities were flaccid. Dr. Sutherland testified that the patient was unconscious, that she 'was cyanosed and she was moving her extremities in a restless way, but she obviously was not responding to knowing what she was doing.' A tracheotomy was done by Dr. Kvernland, and a tracheotomy tube was inserted and connected with a Bird respirator, a device that breathes automatically for the patient by the use of oxygen and carbon dioxide. By this means respiration was restored and maintained.

Dr. Kvernland made a working diagnosis of myasthenia gravis, a disease characterized by paralysis of the muscles, and to test this assumption, administered a drug called Prostigmin, following which the plaintiff was able to wiggle her fingers and toes. He also found that by tickling the bottom of her feet and pricking her feet and hands with a needle, she had feeling.

On November 27, 1959, the plaintiff was removed to the University of Oregon Medical School Hospital, where she remained until May 10, 1961. While there has been some improvement in her condition, at the time of the trial, in June, 1963, she was still partially paralyzed from the neck down, and could breathe only with artificial aid--the Bird respirator by day, and a mechanical rocking bed at night.

The plaintiff testified:

'Q Did anything unusual happen during the course of their attempting to deliver the baby?

'A They were having a hard time with the baby and he kept saying I was going to have to work harder. And it seemed like two nurses came on in each side and held my arms, and helped me struggle, and then two doctors, and it seemed like I was being pulled apart like a chicken, and got my legs up quite high and got my neck down until it got pretty hard to breathe. And they got my feet here and my arms up here and my neck was being pinched.

'Q Did your chin come in contact with your chest?

'A Yes.

'Q. Did that interfere with your breathing?

'a Yes, it did. And I thought it would be over in a minute. And I kept struggling and everything went.

'Q Can you describe a little bit more for us what you meant or what sensation you had when you say, everything went?

'A At first I was helping, you know, working as hard as I could and he kept telling me to push down on all the muscles that I could, and, I think, I was doing a good job helping. And all of a sudden I felt there was no push left and everything collapsed.

'Q Could you move your arms and legs?

'A They were holding me with my arms and legs and I don't know at that time if I could have worked them myself or not.

'Q Were you conscious when the baby was born?

'A Yes, and when he cried.

'Q Do you know whether you lost consciousness at any time?

'A No, I really don't know.

'Q What happened when the baby was born?

'A They moved me back to the cart they brought me down on.

'Q Was that done immediately?

'A As soon as they kind of cleaned me up and put me over there.

'q How long did you stay on the cart in the delivery room?

'A I think it was approximately a half hour. It could have been more or less.

'Q Do you remember going back down to the room?

'A Yes, I remember going to the room.

'Q Do you remember being put in the bed?

'A I remember being put in the bed and they came soon after for lunch.

'Q What happened when lunch came?

'A I really don't know, I was so tired. But the potatoes and gravy looked so good and I tried to reach up for it and I couldn't. And I though I was just so tired.

'Q How long was that after you came down from the delivery room?

'A About a half hour.

'Q Soon after?

'A Yes, I don't think I had been in my room but a few minutes when they came with the lunch.

'Q After you noticed you couldn't move your arms, thereafter could you move?

'A No, I couldn't move.

'Q Was anything else other than your arms involved?

'A I didn't try to move anything else and I was so tired, and I tried to keep flat because of the spinal. And from then on everything went hazy.'

As to the question of impairment of sensory perception, the plaintiff testified:

'A I was completely numb for the first four months. The doctors would come in and stick pins in my feet and go up my leg and I couldn't feel them, and after about four months, about the time I started to be able to move, then I began to feel the pin pricking at the bottom of my feet. And then it was about a month later that I began to feel them in my legs, but then, it was about two or three months later that I felt them in my arms. But it wasn't until the tenth month that...

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