Mulka v. Keyes, 32092

• Decision Date: 06 November 1952
• Docket Number: No. 32092,32092
• Citation: 249 P.2d 972,41 Wn.2d 427
• Parties: MULKA et al. v. KEYES et al.
• Court: Washington Supreme Court

Page 427

41 Wn.2d 427

249 P.2d 972

MULKA et al. v. KEYES et al.

No. 32092.

Supreme Court of Washington, Department 1.

Nov. 6, 1952.

Forrest & Rowles, Bellingham, for appellants.

Eggerman, Rosling & Williams, Seattle, for respondents.

DONWORTH, Justice.

This is an action for malpractice. Defendant Roswell P. Keyes is a physician and surgeon practicing his profession in Bellingham, as is the other defendant, his brother Howard. On June 18, 1947, after having diagnosed plaintiff wife's physical trouble as an ovarian cyst, Roswell operated on her for the purpose of removing it. Howard served as his assistant in the surgery.

In the course of the operation Roswell cut the patient's left ureter about two-thirds through. The ureter is a muscular tube whose function is to carry urine from the kidney to the bladder. Howard attempted to repair the injury by inserting a ureteral catheter in the ureter and suturing the cut edges. The repair was unsuccessful and another operation--to remove the left kidney--was performed by another surgeon July 22, 1947. Plaintiffs subsequently brought this action in which, so far as we need note here, they made three allegations of negligence:

(1) Cutting the ureter when such cutting was wholly unnecessary to proper conduct of the ovarian cyst operation; (2) failing to treat and repair the injury properly at the time of the operation; and (3) failing to treat and repair the injury properly subsequent to the operation. Defendants' answers denied these allegations.

The action was tried in Whatcom county before a visiting judge from King county, sitting with a jury. At the close of plaintiffs' case each defendant challenged the sufficiency of the evidence as to him. The trial court denied the motion of Roswell and granted that of Howard, who was dismissed from the case. The jury subsequently returned a verdict for plaintiffs against Roswell.

Roswell filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. The court denied the first motion and granted the second. Plaintiffs have appealed from the order dismissing Howard C. Keyes as a defendant. See Mulka v. Keyes, Wash., 246 P.2d 834. By a separate notice of appeal they have appealed from the order granting Roswell P. Keyes a new trial.

We shall henceforth refer to plaintiff wife as if she were the sole appellant and to Roswell P. Keyes as if he were the sole respondent.

The material portion of the order granting the motion for a new trial reads as follows:

'It is further ordered that defendant's motion for a new trial be and the same is hereby granted upon the ground that substantial justice has not been done. Inherent in this conclusion are the following reasons:

'The slight evidence of negligence which was submitted to the jury left a basis for a verdict which was barely sufficient;

'Juror * * * [No. 3] failed to disclose on her voir dire examination a prejudice against the defendants;

'Plaintiffs' counsel made statements, which were made in the presence of the jury without necessity, relative to the rulings of the court tending to prejudice the jury against the defendant.

'These facts plus the speed of the verdict, a consideration of the entire record and proceedings in this case, as well as the appearance and demeanor of the witnesses upon the stand, convince this court that substantial justice has not been done.'

In her first two assignment of error appellant challenges the sufficiency of these reasons and asks this court to reverse the order granting respondent's motion for a new trial and to remand the cause with direction to enter judgment on the verdict of the jury. Only in the event that we should decline to do this does she seek a review of her eight other assignments of error including a review and reversal of the order dismissing Howard C. Keyes as a defendant.

In Coppo v. Van Wieringen, 36 Wash.2d 120, 217 P.2d 294, 306, we reviewed at length the situation then existing with reference to an appeal from an order granting a new trial where the trial court either stated no ground for its order or based it upon the ground that substantial justice had not been done. We there stated that our review in such cases was limited to the question whether the verdict of the jury was, as a matter of law, the only verdict that could be rendered. Unless we could so find, we held that such an order granting a new trial would not be disturbed except for manifest abuse of discretion. We recognized that the wide discretion accorded trial courts in granting new trials on the ground that substantial justice had not been done had the effect of dropping an 'iron curtain' which cut off adequate review by this court to determine whether or not there was sufficient reason for the trial judge to set aside the verdict of the jury and grant a new trial. We suggested that there should be some means of obtaining more adequate review of such orders and we concluded as follows:

'Inasmuch as revisions of our rules and the rules of practice are under consideration, it is hoped by this opinion to focus the attention of the bench and bar upon the problem presented. There is no desire to interfere with the inherent right of a trial judge to grant a new trial, subject only to the limited review now possible, where the reasons for granting the new trial cannot be made a part of the record. On the other hand, there should be some way of securing a review of such an order when the trial judge's action is actually based upon the record. Any rule adopted, to be effective, would require that the trial judge state his reason or reasons for granting a new trial and, also, whether the order is based upon the record or upon facts and circumstances outside the record which could not be made a part thereof.'

We thereafter promulgated Superior Court Rule 16, 34A Wash.2d 117, effective January 2, 1951, which had the effect of superseding Rem.Rev.Stat. (Sup.), § 399, RCW 4.76.020. We added as an additional ground for granting a new trial 'That substantial justice has not been done.' We also provided therein that

'In all cases wherein the trial court grants or denies a motion for a new trial, it shall, in the order granting or denying the motion, give definite reasons of law and facts for so doing.'

With Rule 16 and our discussion of the problem in the Coppo case, supra, in mind we shall consider seriatim, in the light of the record in this case, the reasons given by the trial court in support of its order.

The trial court held, as a matter of law, that certain items of negligence had not been proved and instructed the jury that 'the sole question for your consideration is the question of the skill and care used in using the methods employed' in the operation. In its memorandum opinion on respondent's motion for a new trial the court decided that it had erroneously withheld from the jury the issue of negligence in the selection of surgical methods employed (sharp or blunt dissection), saying:

'By reason of the court's erroneous ruling, substantial evidence was taken away from the consideration of the jury, and the slight evidence that the court submitted to the jury left a basis for a verdict which is, to my mind, barely sufficient. I am inclined to scrutinize a verdict in such a case as this with a great deal more care than if the jury had had more substantial evidence to pass on.'

Parenthetically, we note here that the error which the court concluded it had committed was in favor of respondent who is the party seeking a new trial. Under the circumstances of this case, the reason given by the court is not adequate to support the granting of a new trial to him.

The sufficiency of the evidence to sustain a verdict is a matter which necessarily appears in the record. From our review of the record we are convinced that there was substantial evidence from which the jury could find that respondent was negligent in cutting the ureter. It would serve no purpose here to review extensively the highly technical testimony of respondent, his brother and the medical experts called by each side. There was evidence from which the jury could have found that the ureter was cut while respondent, using the method of sharp dissection, cut into tissue which he had not first identified. There was also expert testimony that no surgeon exercising a proper degree of care and skill would cut into tissue which he had not identified and that by first lifting up and identifying small segments of tissue and adhesions a surgeon could properly use the method of sharp dissection with less risk of damage to the ureter.

Respondent's report of what was done in the operation, made immediately after its conclusion, read as follows:

'Mid-rectus incision, low. Pelvis and abdomen explored. The sigmoid resected from the large ovarian cyst. The ovarian pedicle was resected & lig. with double No. Ochromic On resecting left ovary from broad lig. [ligament] left ureter cut. The cyst was resected and then there was an anastomostosis of cut ends of the ureter with triple O interrupted silk. over a ureteral catheter. The cut edges of the broad lig. [ligament] peritonealized. * * *' (Italics ours.)

At the trial respondent and his brother maintained that the ureter was cut while dissecting what they described as 'the inflammatory mass,' of which the ovarian cyst was a part, from the sigmoid colon. This testimony was directly in conflict with respondent's report of the operation which, respondent claimed, was incorrectly written by the typist.

The jury could have found from the evidence that cutting the ureter while dissecting the ovary from the broad ligament was more indicative of negligence than would be cutting the ureter while dissecting the cyst from the sigmoid colon.

There were other material variances between respondent's operative report, his testimony on pre-trial examination and his testimony at the trial. The credibility of respondent...