Peterson v. Hunt

• Decision Date: 07 December 1938
• Docket Number: 27072.
• Citation: 84 P.2d 999,197 Wash. 255
• Parties: PETERSON et ux. v. HUNT.
• Court: Washington Supreme Court

84 P.2d 999

197 Wash. 255

PETERSON et ux. v. HUNT.

No. 27072.

Supreme Court of Washington

December 7, 1938

Department 1.

Action by G. E. Peterson and Ruth V. Peterson, husband and wife against Leo J. Hunt, for malpractice. From a judgment on a verdict for defendant, plaintiffs appeal.

Reversed and remanded, with direction.

Appeal from Superior Court, Pierce County; E. D. Hodge, judge.

Vanderveer & Bassett, of Seattle, for appellants.

Robert E. Evans, and S. A. Gagliardi, both of Tacoma, for respondent.

MAIN Justice.

This is a malpractice case. It was tried to a jury and resulted in a verdict for the defendant. Motion for new trial being overruled, judgment was entered dismissing the action, from which the plaintiffs appeal.

The appellants, G. E. Peterson and Ruth V Peterson, are husband and wife, and reside in the city of Tacoma. The respondent is a physician and surgeon, practicing his profession in the same city. Sometime during the fall of 1934, Mrs. Peterson, believing that she might be pregnant went to the respondent for an examination. She and her husband say that this was in September. The respondent says that it was in November. The respondent made what is called a digital examination of the uterus. Here, again, the testimony is in direct conflict; Mrs. Peterson saying that the doctor told her she was pregnant; he says that he told her that she had an ovarian cyst, and this she denies. From time to time thereafter Mrs. Peterson visited the office of the respondent and was examined, he telling her repeatedly that she was pregnant.

Upon the question of whether or not the respondent wrote prescriptions for Mrs. Peterson, the evidence is again in direct conflict, she saying that he did and he saying that he did not.

In April, 1935, Mrs. Peterson, having suffered severe pains during the previous month and having become very nervous and her abdomen being considerably extended, went, with her husband, to respondent's office, and her husband asked the doctor if there was not some way it could be definitely determined whether Mrs. Peterson was pregnant. The respondent, then, suggested that the rabbit test be employed. This was done and showed that there was no pregnancy. A little later, Mrs. Peterson was operated on, and the cyst which was then about six inches in diameter and weighed approximately two pounds, was removed.

Upon the trial of this action, the appellants offered to prove the number of rabbit tests which a chemist, proprietor of a large biological chemical laboratory in Tacoma, had made since the year 1931, and the number he had made in 1934, as well as the number of these tests he had made for the respondent during the year 1934. This testimony was rejected and presents the question upon this appeal. If the testimony was competent and material, the judgment cannot be sustained; on the other hand, if the ruling of the court was correct, then this appeal would result in an affirmance.

It is well-settled that a physician must exercise that degree of care and skill which is ordinarily exercised by the members of his profession in the community where he practices, or similar communities, having due regard for the advance in medical and surgical science at the time. Wharton v. Warner, 75 Wash. 470, 135 P. 235; Just v. Littlefield, 87 Wash. 299, 151 P. 780, Ann.Cas.1917D, 705; Jaeger v. Stratton, 170 Wis. 579, 176 N.W. 61; James v. Grigsby, 114 Kan. 627, 220 P. 267.

While, ordinarily, whether a physician has exercised the degree of care and skill which the law imposes upon him is established by professional opinion, this is not an invariable rule; there are instances where facts alone prove negligence, and where it is unnecessary to have the opinion of persons skilled in a particular science to show unskilled and negligent treatment. Cornwell v. Sleicher, 119 Wash. 573, 205 P. 1059; Jordan v. Skinner, 187 Wash. 617, 60 P.2d 697; Gross v. Partlow, 190 Wash. 489, 68 P.2d 1034.

There is a difference in malpractice cases between mere errors of judgment and negligence in previously collecting data essential to a particular conclusion. If the physician omits to inform himself as to the facts and circumstances and injury results therefrom, he is liable.

In Just v. Littlefield, 87 Wash. 299, 151 P. 780, Ann.Cas.1917D, 705, it is said [page 782]: '* * * There is a fundamental difference in malpractice cases between mere errors of judgment and negligence in previously collecting data essential to a proper conclusion. If he omits to inform himself as to the facts and circumstances, and injury results therefrom, then he is liable. * * *'

Having in mind the rule just stated and the previous one to the effect that there are instances where negligence may be...