Pederson v. Dumouchel

• Decision Date: 21 September 1967
• Docket Number: No. 38184,38184
• Citation: 431 P.2d 973,72 Wn.2d 73
• Parties: , 31 A.L.R.3d 1100 Dorothy H. PEDERSON, as Guardian ad Litem of Larry C. Neal, a minor, Appellant, v. M. L. DUMOUCHEL, M.D., and Jane Doe Dumouchel, husband and wife, Walter D. Heikel, D.M.D., and Jane Doe Heikel, husband and wife, and St. Joseph Hospital, a corporation, Respondents.
• Court: Washington Supreme Court

Page 73

72 Wn.2d 73

431 P.2d 973, 31 A.L.R.3d 1100

Dorothy H. PEDERSON, as Guardian ad Litem of Larry C. Neal a minor, Appellant, v. M. L. DUMOUCHEL, M.D., and Jane Doe Dumouchel, husband and wife, Walter D. Heikel, D.M.D., and Jane Doe Heikel, husband and wife, and St. Joseph Hospital, a corporation, Respondents.

No. 38184.

Supreme Court of Washington, En Banc.

Sept. 21, 1967.

Rehearing Denied Dec. 1, 1967.

Gordon, Sager, Honeywell, Malanca & Peterson, Tacoma, for appellant.

Comfort, Dolack, Hansler & Billett, Tacoma, Parker & Parker and Stanley J. Krause, Lester T. Parker, Aberdeen, for respondents.

WEAVER, Judge.

Plaintiff, as guardian ad litem of Larry C. Neal, a minor, appeals from a judgment, entered after a jury verdict for defendants, dismissing this action with prejudice. We refer to the minor as plaintiff; he reached his majority before trial.

This is an action for damages allegedly arising from medical malpractice. It is against M. L. Dumouchel, a medical doctor; Walter D. Heikel, a dentist; and St. Joseph Hospital, a corporation, in Aberdeen, Washington.

Plaintiff was injured in an automobile accident in the early morning of June 6, 1961. He was placed in St. Joseph Hospital under the care of Dr. M. L. Dumouchel, who first saw him at 8 a.m. After treatment of minor injuries, it was determined that plaintiff had a fractured jaw. Dr. Dumouchel associated Dr. Heikel, a dentist, to reduce plaintiff's fractured jaw under general anesthetic in surgery at the hospital. Dr. Dumouchel, who examined plaintiff prior to surgery, testified, in his opinion, plaintiff did not have any 'gross or even minor brain injury.'

The operation commenced at 10:20 a.m. the next day, June 7, 1961, and was concluded at noon. Anesthetic was administered by a nurse employed by the hospital. Dr. Heikel, the dentist, testified that he had no working knowledge of the use or administration of a general anesthetic and had left the responsibility and control of the anesthetic to the nurse. Neither Dr. Dumouchel nor any other medical doctor was present in the surgery. Dr. Heikel testified that on 11 prior occasions, when he had reduced a fractured jaw under a general anesthetic in the hospital, a medical doctor had been present; that on only one prior occasion a medical doctor had not been present.

Dr. Dumouchel left the hospital before surgery commenced. Shortly after noon and while in the recovery room, plaintiff suffered convulsive seizures. Dr. Dumouchel could not be located; it was his 'afternoon off.' No medical doctor was available in the hospital at the time.

About 1:30 p.m. a nurse from the surgical floor located Dr. John D. Fletcher, a surgeon, who was then visiting his patients in the hospital. He examined plaintiff, found him unconscious and experiencing convulsive seizures. Dr. Fletcher performed a spinal tap 'to determine the inter-spinal pressure and to determine whether there is any gross blood in the spinal fluid.' The spinal tap was essentially normal.

Concluding that plaintiff was suffering 'some type of brain injury,' Dr. Fletcher consulted Dr. Lawrence Knopp, a neurosurgeon at St. Frances Cabrini Hospital in Seattle. They decided that plaintiff should be removed to Seattle at once.

As plaintiff was being taken to the ambulance about 4:30 p.m., Dr. Dumouchel returned to the hospital and learned for the first time that plaintiff was still unconscious and having seizures.

Dr. Knopp and Dr. William Sata, a neurologist of Seattle, treated plaintiff in the Seattle hospital during the period of nearly a month that he was unconscious following surgery.

The nurse anesthetist testified that she had been a narcotic user from 1958 or 1959 until the month before the surgery. To replace narcotics, she commenced drinking alcohol. August 4, 1961, she was committed to Western State Hospital where she was a patient for 7 months. At the trial she had a bare minimum of independent recollection and relied almost entirely on the anesthesia chart to describe what had transpired in surgery on June 7, 1961. The nurse was hired and paid by the hospital; the hospital billed the patient for her services.

For the purpose of this opinion, it is sufficient to state that the record contains competent, expert, medical testimony, if believed by a jury, to support the conclusion that plaintiff suffered severe and permanent brain damage from cerebral anoxia or hypoxia (complete or partial deprivation of oxygen to the brain) while he was anesthetized during surgery, and that cerebral anoxia or hypoxia was due to inadequate ventilation of the patient during the anesthesia or post-operative period.

Plaintiff's 14 assignments of error present 4 major questions of law:

1. The correctness of the instructions of the trial court concerning the standard of care applicable to doctors, dentists, and hospitals.

2. The failure of the trial court to give a requested instruction on the doctrine of res ipsa loquitur.

3. The correctness of hypothetical questions asked.

4. Alleged improper argument of defense counsel.

Instructions on Standard of Care As To Doctors and Dentists

Plaintiff's first 7 assignments of error are directed to instructions given; they relate to the standard of care that doctors, dentists, and hospitals must meet. The eighth assignment is directed to the court's refusal to give requested instruction No. 7, which embodies plaintiff's theory of the standard of care that should have been applied.

It would unduly extend this opinion to set forth all the questioned instructions verbatim; however, the nub of the problem is expressed in instruction No. 7, wherein the following language is used:

The standard, I remind you, was set by the learning, skill, care and diligence ordinarily possessed and practiced by others in the same profession in good standing, engaged in like practice, In the same locality or in similar localities, and under similar circumstances and at the same time. (Italics ours.)

The same thought (italicized above) is threaded through each of the standard-of-care instructions as they apply to doctors, dentists, and hospitals.

We find some conflicting language in Washington cases concerning the scope or area qualifications of the standard of care applicable to medical doctors. Cases in the first group refer to the standard 'in the same community' or 'in the locality where he practices.' ¹ Cases in the second group refer to the standard of care 'in the same or similar communities.' ²

Each line of decisions appears to have overlooked the other; although as early as 1913 this court said in a malpractice case:

The instruction is faulty in that it makes the standard of treatment that of the locality alone in which the appellant was practicing; whereas, the true standard is that of all similar localities. Cranford v. O'Shea, 75 Wash. 33, 134 P. 486 (1913).

The original reason for the 'locality rule' is apparent. When there was little intercommunity travel, courts required experts who testified to the standard of care that should have been used to have a personal knowledge of the practice of physicians in that particular community where the patient was treated. It was the accepted theory that a doctor in a small community did not have the same opportunities and resources as did a doctor practicing in a large city to keep abreast of advances in his profession; hence, he should not be held to the same standard of care and skill as that employed by doctors in other communities or in larger cities. Parenthetically, we note that the law of this jurisdiction has never recognized a difference in the professional competency of a lawyer in a small community from that of the professional competency required of a lawyer in a large city.

The 'locality rule' had two practical difficulties: first, the scarcity of professional men in the community who were qualified or willing to testify about the local standard of care; and second, the possibility of a small group, who, by their laxness or carelessness, could establish a local standard of care that was below that which the law requires. The fact that several careless practitioners might settle in the same place cannot affect the standard of diligence and skill which local patients have a right to expect. Negligence cannot be excused on the ground that others in the same locality practice the same kind of negligence. No degree of antiquity can give sanction to usage bad in itself.

Broadening the rule to include 'similar localities' or 'similar communities' alleviated, to a certain extent, the first practical difficulty of the 'locality rule'--additional witnesses might be available; but it did little to remove the deficiencies springing from the second.

In Teig v. St. John's Hospital, 63 Wash.2d 369, 387 P.2d 527 (1963), this court approached modifying the 'similar locality' rule, for it upheld the admission of expert testimony by a Portland, Oregon doctor in a malpractice action arising in Longview, Washington. The court took judicial notice that Longview and Portland are approximately 50 miles apart. We take further judicial notice that they are not 'similar localities or similar communities.' It was not necessary for the court to examine the rule, however, for the Portland doctor testified he was familiar with the standards of general practitioners in the vicinity of Portland And Longview.

Now there is no lack of opportunity for a physician or surgeon to keep abreast of the advances made in his profession and to be familiar with the latest methods and practices adopted.

The comprehensive coverage of the Journal of the American Medical Association, the availability of numerous other journals, the ubiquitous 'detail men' of the drug companies, closed circuit television presentations of medical subjects, special radio networks for physicians, tape recorded digests of medical literature, and hundreds of widely available postgraduate courses all serve to keep physicians...