Moulton v. Huckleberry
| Decision Date | 02 July 1935 |
| Citation | 150 Or. 538,46 P.2d 589 |
| Parties | MOULTON v. HUCKLEBERRY et al. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Multnomah County; Hall S. Lusk, Judge.
Action by Mable Moulton against E. R. Huckleberry and another to recover damages for malpractice in the treatment of an injury which plaintiff sustained. It is alleged that E. R Huckleberry is responsible for the alleged malpractice upon the theory of respondeat superior, or agency. The cause was tried to the court without the intervention of a jury, and findings of fact were made and judgment rendered in the sum of $2,000, in favor of plaintiff and against the defendants. Defendants appeal.
Affirmed.
Eugene K. Oppenheimer, of Portland (Wilbur, Beckett Howell & Oppenheimer, of Portland, and George P. Winslow, of Tillamook, on the brief), for appellants.
Walter L. Tooze, of Portland, for respondent.
The case is stated about as follows: Both defendants were duly licensed and practicing physicians and surgeons under the laws of the state of Oregon. Dr. Shininger maintained an office at Wheeler, Or.; Dr. Huckleberry maintained offices and had a competent nurse capable of taking care of emergency work at Garibaldi about five miles distant from Rockaway, where plaintiff lived at the time of the first treatment. Dr. Huckleberry's offices contained two hospital beds where emergency cases were treated and hospitalization given. He was under contract with the Hammond Lumber Company at Garibaldi to furnish medical and surgical treatment to its employees, numbering about 300, and had considerable private practice. Prior to August 25, 1933, plaintiff and her husband arranged to move to the city of Tillamook, and on that day the plaintiff was engaged in packing some things for the purpose of moving. The stairway leading from the upper floor of the small dwelling occupied by them was dark and narrow, and had a turn in it near the bottom with a landing where there were some empty fruit jars and bottles. The plaintiff was walking down the stairs with an armload of fruit jars. When she arrived about two steps from the landing she fell forward from there to the landing. Her left knee struck and broke some of the glassware on the landing, and her left leg was doubled under. She could not move; she was carried or dragged down the remainder of the stairway to a chair in the kitchen. On examination of her left leg it was found that it was cut just below the kneecap. The gash was approximately four inches long, cut approximately straight across, and quite deep. It gapped open possibly an inch, and was very bloody. As a result of this fall, with ensuing lacerations, the lower end of the patella on plaintiff's left leg was chipped off and the patellar tendon entirely severed. Plaintiff's husband was called and he, with aid, placed plaintiff in a car and they hurried to Garibaldi to see Dr. Huckleberry who had been their family physician. When they arrived at Garibaldi they found Dr Huckleberry was absent, but found Dr. Shininger in charge of Dr. Huckleberry's offices, caring for Dr. Huckleberry's business. The nurse told Mr. Moulton "that Dr. Huckleberry had gone but Dr. Shininger was there." He was using Dr. Huckleberry's equipment and was also assisted by his nurse. Plaintiff was carried to Dr. Huckleberry's offices. Dr. Shininger proceeded to treat plaintiff, using Dr. Huckleberry's equipment and his regular nurse. He washed out the wound and probed for glass. Dr. Shininger wholly failed and neglected to take X-rays or put the plaintiff through the most simple tests for the purpose of determining whether the patella tendon had been severed, and sewed up the surface wound without in any manner repairing or attempting to repair, the severed tendon. At the time plaintiff could not bend or extend her leg without assistance, by the use of the other leg, or without some one aiding her, and this condition continued without any change until Dr. McClure operated upon her, about five months afterwards. Dr. Shininger visited plaintiff two or three times shortly after the accident and looked over the wound, but at no time required her to go through the most simple exercises for the purpose of determining whether the patella tendon had been severed. About ten days following the accident, and on September 3, at the request of Dr. Shininger, plaintiff was brought to the office of Dr. Huckleberry in Garibaldi for the purpose of having the stitches removed. At that time plaintiff was on crutches. The wound had healed sufficiently to warrant the removal of the stitches, and they were removed, but plaintiff informed Dr. Shininger that she had no use of the leg, whereupon he told her it was "all in her head," that she could, and should use it, and that it would be all right. Plaintiff did not know what was wrong and relied upon the information given her by Dr. Shininger.
The most simple test would have shown the true condition at this time, but Dr. Shininger failed to apply such test. All of the doctors testifying upon the trial in his case, including the two defendants, stated that if the tendon was severed the most simple test would have disclosed it, and that the test should have been applied, regardless of what doctor was treating the case; the same degree of care in this respect being required of all doctors, regardless of locality. The test is stated to be to require the patient to extend and hold the injured leg horizontally, sitting on a table or chair, and if she could raise the leg to an angle of 90~, and hold it without assistance, it would plainly show that the tendon was not severed from the patella; on the other hand, if she could not so straighten out the leg, and hold it, it would indicate that the tendon or ligament of the patella was severed. It is likewise admitted by the doctors including defendants, that if any physician failed to apply these tests it would be negligence on his part; that the exercise of the slightest diligence on the part of physicians, regardless of vicinity or locality, would have disclosed the nature and extent of the injury.
Regarding the arrangements made between Dr. Huckleberry and Dr. Shininger, before Dr. Huckleberry left for Chicago on his vacation, Dr. Huckleberry testified as follows:
For this work Dr. Shininger was paid $5 per day. Defendant Dr. Shininger testified that the understanding existing between them was as follows:
After the stitches were removed plaintiff continued to walk about on crutches. There was no improvement in her condition. She could not extend her left leg without assistance. She suffered much pain in her left knee and never was able to go without crutches or other assistance, nor extend her left leg without assistance, until long after Dr. McClure had operated, as the testimony indicated.
Prior to August 25, 1933, plaintiff was in good health, was able to perform her household duties, and had free, full use of her left leg, but on two occasions prior to that time, the last being some six or seven years prior, the plaintiff had suffered some cartilage trouble in her left knee, which she described by saying that the knee "just gives way on me swells up." She stated that at that time she was laid up about two or three weeks, and was treated for this condition by Dr. Babb of Tillamook, a chiropractor; that she had once suffered the same trouble prior to that time when she was a girl about fifteen or sixteen, and that about October 13, 1933, while plaintiff, with the assistance of two of her lady friends, was returning to her home from a show in Tillamook, she suffered a recurrence of the old cartilage trouble in her left leg. Dr. McClure, who afterwards operated on her knee, testified quite positively that the cartilage trouble had nothing whatever to do, directly or indirectly, with plaintiff's severed tendon. After plaintiff's trouble with her knee October 13, Dr. Charlton of Tillamook was immediately called and advised hot packs to reduce the swelling. The swelling was so great that no examination could be made. Dr. Charlton advised that upon the reduction of the swelling plaintiff should have X-rays taken. He had no reason to suspect anything wrong with the knee, other than the cartilage trouble. There was nothing in the history of the case, as given to him, to make him suspect that the defendants had failed to properly treat plaintiff's knee. About November 7, 1933, the swelling being sufficiently reduced, Dr. Charlton took X-rays of plaintiff's knee, and they showed what appeared to be some bony fragments below the patella. The X-rays did not show a severed tendon. What appeared to be bony fragments, Dr. Charlton suggested might...
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