Olson v. Weitz

• Decision Date: 24 August 1950
• Docket Number: 31403.
• Citation: 37 Wn.2d 70,221 P.2d 537
• Court: Washington Supreme Court
• Parties: OLSON, v. WEITZ.

221 P.2d 537

37 Wn.2d 70

OLSON, v. WEITZ.

No. 31403.

Supreme Court of Washington.

August 24, 1950

Department 2.

Cannon, McKevitt & Fraser, Spokane, for appellant.

Jerome Williams, Spokane, for respondent.

HILL, Justice.

Plaintiff Betty Olson recovered a verdict for $15,805 against the defendant Dr. Henry W. Weitz, in a malpractice action, which verdict was reduced by the trial court to $9,805.

The defendant appeals, contending that the plaintiff failed to establish a cause of action and that each of his various challenges to the sufficiency of the evidence should have been sustained. If this relief is denied him, he asks that the case be sent back for a new trial.

No doctor testified for the respondent except the appellant, called as an adverse witness, and he urges that it was incumbent upon her to establish the material allegations of her amended complaint by medical testimony, citing Fritz v. Horsfall, 24 Wash.2d 14, 163 P.2d 148. That, rule is sound only when soundly applied. Wharton v. Warner, 75 Wash. 470 135 P. 235; Cornwell v. Sleicher, 119 Wash. 573 578, 205 P. 1059. In Swanson v. Hood, 99 Wash. 506 512, 170 P. 135, 137, it is said: 'But there is an obvious distinction between a claim of negligence in the choice of methods of treatment and a charge of negligence in the actual performance of the work or treatment after such choice is made. As to the first, the charge is refuted as a matter of law by showing that a respectable minority of expert physicians approved of the method selected thus taking the case from the jury. As to the second, a charge of negligent performance, where there is any evidence tending to show such negligence, the case is for the jury, as in other cases of negligence, whenever upon the evidence the minds of reasonable men might differ.'

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 that the result speaks for itself. Helland v. Bridenstine, 55 Wash. 470, 475, 104 P. 626, 628; Wharton v. Warner, supra; Cornwell v. Sleicher, supra. The question is whether the present case falls within that category. On July 19, 1947, the respondent went to the appellant for treatment of a simple transverse greenstick fracture of the radius of her left forearm. The arm was placed in a cast on that date. The cast was removed on August 26, 1947, and the condition of the arm on that date, at the time respondent left appellant's office, is, in our opinion, the pivotal fact in this case.

On August 28, 1947, respondent consulted Dr. Alfred O. Adams, who, after an examination of her arm, called appellant and reported a marked displacement of the radius and that an open reduction would probably be required.

On September 2, 1947, she returned to appellant's office, at his request. He conceds that on that date the fractured bone was not in alignment, that her arm was in such condition that further treatment was necessary, and that an open reduction was the proper treatment for the condition then existing. It is undisputed that the situation was corrected by an open reduction and bone graft, bone being taken from respondent's left leg.

If respondent's arm was in the same condition on August 26th, when she left appellant's office, that it was on September 2nd when she returned (leaving out of consideration the effect of a fresh fracture, of which more anon)--and she testified that it was--a prima facie case of malpractice seems to us sufficiently established without expert testimony.

Appellant testified that on August 26th, when the cast was removed, he felt that he had achieved a satisfactory result in the reduction of the fracture. He said: 'Well, it was naturally stiff at the elbow from lack of use. However, she could bend it down, at least in this much of an angle (indicating), and the skin, of course, was shrunken and scaly and looked dirty, which was natural. I mean, all look that way, and the appearance of the arm looked natural, and I felt across this fracture, and you could just barely feel an observable mass, but if you were not looking for it you couldn't see it.'

He testified further that he fluoroscoped the arm at that time, and that the fragments were in good alignment and 'There was a callus formation or calcium deposit present, and it showed union of the bones.'

Donald L. Royer, who was employed by appellant at that time as a general technician for laboratory and X-ray work, was present when the arm was fluoroscoped Before the cast was removed, and appellant showed him the position of the bones and pointed out that they were in good alignment. Unfortunately for appellant if the situation was as he and Mr. Royer testified, no X-rays were taken at that time.

Respondent testified that when the cast was removed she immediately noticed that her arm was crooked and had a lump projecting about one inch from the top of the arm where it was fractured, and that the lump extended in a tapering manner for three inches along the top of the arm. She was alarmed at the appearance of the arm, but appellant said that the lump would disappear within three months.

Five other people testified as to the condition of respondent's arm on August 26th. Avis Nagle, whom she met a few blocks from the doctor's office, immediately noticed the bump on respondent's arm. She described it as extending about one inch above the normal level of the arm and tapering about three inches along the arm. Mr. and Mrs. E. E. Nagle, the parents of Avis Nagle, with whom the respondent was living at that time, and Mr. and Mrs. W. A. Pangburn saw the arm and described its crookedness and the bump or hump on its upper surface. There was testimony that the respondent appeared to be greatly upset and unable to use the arm at all.

Such was not the result to be expected from proper treatment of a simple fracture with no cimplications, and appellant does not contend that it was. His testimony, corroborated by a pharmacist who assisted him in setting the arm and by the X-ray and laboratory technician, was sufficient, if believed, to establish proper treatment and a satisfactory result. He sought to show that a fall probably caused the misalignment reported by Dr. Adams on August 28th and shown by appellant's X-rays taken on September 2nd. The issue as to the condition of the arm on August 26th became strictly one of veracity.

The jury was entitled to accept the version of the respondent and her witnesses. If her version is true, the result of the treatment was palpably a bad one within the rule of the cases heretofore referred to. We conclude that there was sufficient evidence, without expert testimony, to take respondent's case to the jury and to sustain a verdict for the respondent.

The appellant urges that, even if there was a case for the jury, he is entitled to a new trial. His assignments of error involving instructions Nos. 4 and 8 raise the question heretofore disposed of, relative to the necessity for expert testimony. The assignment of error involving instruction No. 12 raises a question that requires the consideration of certain evidence.

There was evidence that the X-rays taken by appellant on September 2nd showed a very recent refracture--within three or four days, according to the testimony of one doctor. Respondent denied any fall or circumstance that could have caused a refracture. Appellant introduced evidence of falls by respondent at a roller skating rink both Before and after the cast was removed. There was no conclusive showing that the refracture, if any, caused the misalignment or that it in any way augmented the damages sustained in consequence of the misalignment.

Instruction No. 12 told the jury that, if it found that at the time of the refracture, if any, the respondent's arm was already in such condition of misalignment as to necessitate the open reduction and bone grafting operation performed by Dr. Adams the respondent was entitled to such damages as she had sustained by reason of the necessary performance of that operation. The instruction was proper because, if the operation was necessary...