Nelson v. Murphy

• Decision Date: 23 June 1953
• Docket Number: No. 32439,32439
• Citation: 258 P.2d 472,42 Wn.2d 737
• Parties: NELSON, v. MURPHY et ux.
• Court: Washington Supreme Court

Page 737

42 Wn.2d 737

258 P.2d 472

NELSON, v. MURPHY et ux.

No. 32439.

Supreme Court of Washington, Department 1.

June 23, 1953.

Monheimer, Schermer & Mifflin, Seattle, for appellant.

Clarence J. Coleman, Everett, Eggerman, Rosling & Williams, Seattle, for respondents.

MALLERY, Justice.

The plaintiff appeals from a judgment of dismissal sustaining a challenge to the sufficiency of the evidence.

The plaintiff, a fifty-five-year-old married man, was employed at the Bayside Iron Works in a supervisory capacity, which required him to make himself heard above the din of operations in the machine shops.

In November, 1948, he called at the office of the defendant, Dr. Albert Murphy, for an examination to determine the cause of an excessive amount of phlegm in his throat. His voice was 'perfectly fine and normal.' He was able to sing and to carry on his work successfully. The examination disclosed two small growths on his vocal cords located at their apex. The defendant removed the growths on December 3, 1948, and immediately thereafter and up to the time of the trial the plaintiff's voice was hoarse, low-pitched, and difficult to understand, so that he was unable to continue his employment.

The general rules in malpractice cases are stated in Derr v. Bonney, 38 Wash.2d 678, 231 P.2d 637, 638, as follows:

'* * * Before a physician or surgeon can be held liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases, or he must have neglected to do something required by those standards. In order to sustain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown, and, further that the doctor failed to follow the methods prescribed by that standard; * * * It is not required that physicians and surgeons guarantee results, nor that the result be what is desired; * * * Negligence on the part of the physician or surgeon by reason of his departure from the popular standard of practice must be established by medical testimony. An exception is recognized in those cases in which negligence is so grossly apparent that a layman would have no difficulty in recognizing it.' (Italics ours.)

Plaintiff contends that he falls within the above italicized exception. He states, in his brief, that

'* * * It should be recognized that the only medical testimony in plaintiff's case in chief was that of Dr. Murphy, as an adverse witness, and of necessity he did not testify that he had violated the standard of practice. Therefore, it is necessary that the facts of plaintiff's case come within that line of cases holding that [Olson v. Weitz, 37 Wash.2d 70, 221 P.2d 537]:

"We have held that some results of medical care and treatment bespeak negligence so plainly that expert testimony is not needed. We have, in effect, applied the doctrine of res ipsa loquitur to certain malpractice cases; that is, there are circumstances where it can be said the result speaks for itself.'

'Helland v. Bridenstine, 55 Wash. 470, 104 P. 626. Wharton v. Warner, 75 Wash. 470, 135 P. 235. Cornwell v. Sleicher, 119 Wash. 573, 205 P. 1059.'

In Helland v. Bridenstine, supra, the plaintiff had been infected with gonorrhea as a result of a doctor using an unsterilized instrument. In Wharton v. Warner, supra, a twelve-inch spring was left in the patient's uterus. In Cornwell v. Sleicher, supra, a broken bone was so improperly joined that it was apparent to a layman's eye; that was also the situation in Olson v. Weitz, supra.

If the alleged act of negligence, in malpractice cases, is within the general knowledge of laymen, expert medical testimony is not required. The foreign object cases are examples of where this rule applies. A layman does not need expert testimony to know that a doctor who leaves a pair of forceps in the abdomen is guilty of negligence. It speaks for itself. When the doctrine of res ipsa loquitur is invoked, it is always a question of law for the trial court to say whether the facts constituting the alleged negligence lie within the general knowledge of laymen, rather than in the realm of medical science.

Plaintiff contends that res ipsa loquitur applies in the instant case, because 'there is no difference in theory or actuality between a broken arm that a jury can see and a broken and destroyed voice that a jury can hear.'

The ability of any layman to detect the bad condition of plaintiff's voice may be granted, but the cause of such a condition is a medical question and not within the certain knowledge of laymen. It, therefore, must be proved by expert testimony. In order for res ipsa loquitur to apply, a layman must be able to say, as in the cited cases, that the bad result could not have occurred but for the negligence of the defendant.

In Crouch v. Wyckoff, 6 Wash.2d 273, 107 P.2d 339, 342, we said:

'* * * A doctor is not to be charged with negligence because the result is not what is desired. Williams v. Wurdemann, 71 Wash. 390, 128 P. 639; Lorenz v. Booth, 84 Wash. 550, 147 P. 31; Hollis v. Ahlquist, 142 Wash. 33, 251 P. 871.'

See 162 A.L.R. 1265 for cases holding that a mere bad result will not invoke the doctrine of res ipsa loquitur. We...