Ramberg v. Morgan
| Decision Date | 13 March 1928 |
| Docket Number | 38826 |
| Parties | CAMILLA RAMBERG, Administratrix, Appellee, v. EARL E. MORGAN, Appellant |
| Court | Iowa Supreme Court |
REHEARING DENIED DECEMBER 13, 1929.
Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge.
Action commenced by plaintiff, as administratrix of the estate of Carl Ramberg, to recover damages for the death of her husband, caused by the alleged negligence of the defendant in diagnosing and caring for plaintiff's intestate when called as a physician to attend him at the police station of Sioux City, Iowa, upon the occurrence of an automobile accident in which plaintiff's intestate was hurled to the pavement and rendered unconscious. The defendant in answer admitted that he was a duly licensed and practicing physician of Sioux City, Iowa, and that, on or about 11:30 P. M. on the 20th day of January, 1926, he made a physical examination of plaintiff's intestate, but denied the negligence alleged and further denied that any negligence on his part was the proximate cause of the death of Carl Ramberg. Trial was had to a jury, resulting in a verdict in favor of the plaintiff in the sum of $ 5,162.50. Judgment was entered, and the defendant appeals.
Reversed.
Snyder, Gleysteen, Purdy & Harper and C. M. Dutcher, for appellant.
Robert B. Pike and Larned F. Brown, for appellee.
KINDIG, J., not participating.
DE GRAFF, J.
This action was commenced to recover damages for alleged malpractice by a physician. Upon the conclusion of all of the evidence, the appellant moved for a verdict in his favor. The motion, which was overruled, is in the nature of a demurrer to the evidence, and in reviewing the denial, we must accord the testimony verity and give it probative value within the limitation of every reasonable inference the jury could draw therefrom.
Plaintiff's case rested upon the charge of negligence on the part of the defendant in the diagnosis, treatment, and care given the plaintiff's intestate when professionally called to attend said intestate after the occurrence of an automobile accident.
The overruling of the defendant's motion for a directed verdict is the primary error assigned. The grounds of the motion are: (1) That there is not sufficient evidence in the record to justify the jury in returning a verdict against the defendant, and if the jury returned a verdict for the plaintiff, it would be the duty of the court to set aside the verdict, as not supported by the evidence; (2) that, even though there were sufficient evidence in the record to show the negligence and unskillfulness of the defendant, there is no evidence in the record that would justify the jury in finding that, but for the wrongful acts of the defendant, as alleged, the decedent, Carl Ramberg, would have lived, for the further reason that the uncontradicted evidence shows that this man was suffering from a severe brain injury, which was in itself an injury which might have caused death in the face of the exercise of the highest degree of skill and care on the part of the defendant, and to allow the jury to find, in the face of that fact, that his death was not due to the injury, but to the wrongful acts of the defendant, would be permitting the jury to speculate and conjecture, and to make a mere guess; (3) that there is not sufficient evidence to justify the jury in finding that any wrongful act on the part of the defendant was the proximate cause of the death of Carl Ramberg, or was the proximate cause of any damages to the estate of Carl Ramberg; (4) that, under the evidence in this record, it is just as probable that the man died from the original injury, and that that was the proximate cause of his death, as that he died or that his death was accelerated as the proximate result of any wrongful acts of the defendant's; (5) that the most favorable view to the plaintiff, on the state of the record, is that there are two or more causes which might have produced death, for one of which only the defendant would be responsible, and no basis for the jury, as laymen, under the expert evidence that is introduced in this case, to be reasonably convinced that the wrongful acts of the defendant were the proximate cause of the death; (6) that, under the evidence, there is no basis for a jury to assess any damages to the estate of the deceased on any theory that the acts of the defendant accelerated the death of the plaintiff's intestate, and no evidence from which a jury could find that any period of acceleration due to the acts of the defendant was a period during which the deceased, if his death had not been accelerated, would have added anything to his estate; (7) that, upon the whole record, a jury, to reach a verdict against the defendant, would be required to guess, speculate, and conjecture upon a subject of skill and training and of science concerning which the jury, as laymen, know nothing.
It therefore appears that the case presents two issues: (1) The negligence of the defendant, and (2) the proximate cause of death. True, these issues are correlated, but a failure on the part of the plaintiff to prove either is fatal to his pleaded recovery.
We may state the respective contentions of appellant and appellee as follows: The contention of appellant is that the conditions directly causing the death were the natural and probable result of the injury received by plaintiff's intestate when hit by an automobile, and therefore nothing that was done or omitted to be done by the defendant could or did effect the ultimate death. The contention of the appellee is that the conditions directly causing the death were not the probable result of the injury alone, but that such conditions developed following the injury, because of the way the injured man was treated, and because the injury did not receive proper treatment, and therefore the lack of proper treatment was the efficient and proximate cause of the disorders or injury due to the blow's becoming so injurious as to result in death. The problem, in reality, is one of causation. The question is whether the traumatic injury would naturally and probably, in the regular course of events, have produced the conditions resulting in death, or whether the deprivation of ordinary treatment, in conjunction with improper treatment, materially contributed to produce the condition that resulted in death.
It is clear that appellee cannot successfully contend that the lack of treatment or improper treatment was the sole cause of death. This cannot be true. The condition of plaintiff's intestate, due to the injury he received, was necessarily a contributing factor or condition upon which the subsequent intervening acts, if any, operated. The defendant did not cause the accident resulting in injury to plaintiff's intestate. It is apparent, therefore, that the alleged negligence of the defendant is the first issue in this case. Do the facts in this particular present a jury question? We answer in the affirmative.
The law is well settled that a patient who is treated by a physician is entitled to a thorough and careful examination, such as the condition of the patient and attending circumstances will permit, with such diligence and methods of diagnosis for discovering the nature of the ailment as are usually approved and practiced by medical men of ordinary or average learning, judgment, and skill in that community or similar localities. An attending physician does not insure either correct diagnosis or correct treatment, but is required to possess the skill and learning which is possessed by the average member of his profession in good standing in that or similar localities, and to apply that skill and learning with reasonable care. See Nelson v. Sandell, 202 Iowa 109, 209 N.W. 440.
If, by the exercise of such care and skill, the specific injury would have been discovered, a failure to properly diagnose is negligence, and it is the duty of a physician, in taking charge of a case, to follow the case, and to give proper instructions to the patient as to his future acts and conduct.
It cannot be disputed that the correct treatment and probable results are scientific questions, and alleged malpractice in any case must be substantiated by the testimony of expert witnesses. It is the province of experts, physicians and surgeons, to say whether the treatment and acts of an attending physician in any case were or were not proper.
It is unquestioned in the instant case that the defendant did not prescribe any treatment to his patient, believing, as he did, that the patient was intoxicated, although he had been advised that the patient had received a very severe traumatic injury by being struck by an automobile, and with sufficient force to render him unconscious. He was unconscious at the time defendant visited him, which was about an hour after the accident. In a sense, this is not a case of proper treatment, but of no treatment at all. The complaint relates to an act of omission, rather than of commission.
What are the primary facts bearing on the first issue? The appellant, Morgan, is a physician and surgeon, practicing his profession in the city of Sioux City, Iowa. On Wednesday January 20, 1926, he was assistant police surgeon in said city. Between 11 and 11:10 P. M. on said day, one Carl Ramberg, plaintiff's intestate, was struck by a Dodge automobile driven by one Miller, who brought Ramberg to the police station and phoned the defendant of the accident. When struck by the automobile, Ramberg was hurled a distance of about 35 feet, and rendered unconscious. When the defendant arrived at the police station, nearly an hour after the accident, Ramberg was still...
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