Noe v. Kaiser Foundation Hospitals

• Decision Date: 13 December 1967
• Citation: 435 P.2d 306,248 Or. 420,27 A.L.R.3d 1268
• Parties: , 27 A.L.R.3d 1268 Michael E. NOE, a minor, by Sarah Noe, his Guardian ad litem, Respondent, v. KAISER FOUNDATION HOSPITALS, a corporation, Kaiser Foundations Health Plan of Oregon, a corporation, Permanente Services of Oregon, Inc., a corporation, Ernest W. Saward, Roger H. George, Norman W. Frink and John B. Wild, dba Permanente Clinic, Appellants.
• Court: Oregon Supreme Court

Page 306

435 P.2d 306

248 Or. 420, 27 A.L.R.3d 1268

Michael E. NOE, a minor, by Sarah Noe, his Guardian ad litem, Respondent, v. KAISER FOUNDATION HOSPITALS, a corporation, Kaiser Foundations Health Plan of Oregon, a corporation, Permanente Services of Oregon, Inc., a corporation, Ernest W. Saward Roger H. George, Norman W. Frink and John B. Wild, dba Permanente Clinic, Appellants.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 7, 1967.

Decided Dec. 13, 1967.

Leo Levenson, Portland, argued the cause for appellants. With him on the briefs was Pat Dooley, Portland.

William E. Hurley, Portland, argued the cause for respondent. With him on the brief were Glen R. Kuykendall, Bernard, Bernard & Hurley, Portland.

Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

This is an action for damages because of an unauthorized circumcision. Defendants appealed from that portion of the judgment, entered on a jury verdict, which assessed punitive damages.

Plaintiff's parents contracted with the defendant, Kaiser Foundations Health Plan of Oregon, for the furnishing of medical and hospital services to their family. The other defendants are corporations and individuals through whom the plan furnishes these services.

During a prenatal care conference with a doctor on the staff of the defendant, Permanent Clinic, plaintiff's parents told the doctor that if the child were a boy they did not want him circumcised. The parents testified the doctor recorded this information in the mother's medical record. At the time the mother went to the hospital for delivery she told the admissions clerk that if the child were a boy he was not to be circumcised. The admissions records, which were supposed to go to the delivery room with the mother for the delivering doctor's information, were stamped 'CIRCUMCISION NOT AUTHORIZED.'

Plaintiff was delivered by a resident under the supervision of a staff physician. After delivery, the doctor left the delivery room and the resident circumcised plaintiff. There were no unusual effects from the circumcision and there is no claim it was incorrectly performed. The same day plaintiff was delivered, it was discovered that plaintiff had been circumcised without authorization and a member of the staff informed the mother of it and telephoned the father to the same effect.

The only assignments of error relate to the submission of the question of punitive damages to the jury. The law in Oregon relating to punitive damages is far from clear. Other than in medical malpractice cases, the court has, with one exception, ¹ refused to allow punitive damages for negligent injury to the person. Action which is classed as wanton, willful or malicious has been required. In malpractice cases gross negligence is said to justify punitive damages. McElwain v. Georgia-Pacific Corporation, Or., 421 P.2d 957 (1966), dissenting opinion of Denecke, J.; Olson v. McAtee, 181 Or. 503, 182 P.2d 979 (1947); Holland v. Eugene Hospital et al., 127 Or. 256, 270 P. 784 (1928); Gill v. Selling et al., 125 Or. 587, 267 P. 812, 58 A.L.R. 1556 (1928); Rennewanz v. Dean, 114 Or. 259, 229 P. 372 (1925). The explanation for a different rule in malpractice cases is '* * * the character of the defendant's profession and the obligation it imposes * * *.' Olson v. McAtee, 181 Or. at 520, 182 P.2d at 986.

In Rennewanz v. Dean, defendant treated plaintiff by injecting his hemorrhoids. While in the defendant's office receiving an injection, plaintiff began to hemorrhage. Defendant left plaintiff lying on a couch in defendant's office for 48 hours. He was unattended in the nighttime. Plaintiff's hemorrhaging continued until he was removed to the hospital by his wife. The court held it to be a proper case for punitive damages.

In Gill v. Selling, plaintiff returned to defendant's office to receive the results of a physical examination. While seated in the waiting room, a nurse, without asking plaintiff's name, told plaintiff to undress for the purpose of a test. Defendant then performed a spinal puncture on plaintiff which was intended for another patient. The court held it to be a mistake and not a case for punitive damages.

In Holland v. Eugene Hospital et al., defendant doctor treated a boy for a broken femur. After the bone was set defendant became aware that the ends of the bones were in a slipped and crooked position, but failed to correct it. The result was one leg which was five inches shorter than the other. The trial court submitted punitive damages. It is not clear whether the court held it to be a proper case for punitive damages but it affirmed the award under the powers given to it under Art. VII, § 3 of the Oregon Constitution.

In Olsen v. McAtee, plaintiff suffered a broken femur. Defendant left the broken ends of the bone overlapping when he used improper methods of setting it. It was left in the cast though defendant knew by the use of X-rays that the bone was not in alignment. Defendant then left town for ten days without making any arrangements for other medical attention. The bone commenced to heal in the misaligned position. The cast restricted the circulation and infection set in. Defendant's sole aid was to put on successively heavier traction. When pus and blood began to ooze out of the cast, his only suggestion was to soak the cast in water to loosen it from the skin. The court held it to be a proper case for punitive damages.

In Cholia v. Kelty, 155 Or. 287, 63 P.2d 895 (1937), defendant agreed to repair two hernias for plaintiff during the same operation. He only repaired one and as a result, plaintiff's other hernia subsequently became greatly aggravated. The court held it was not a case for punitive damages because there was no willful neglect.

An examination of the foregoing cases indicates that the determinative factor is the presence or lack of an aggravated disregard of the professional duties and standards for the medical treatment of patients. This disregard is evident in...