Rhodes v. De Haan, 41227

• Decision Date: 11 April 1959
• Docket Number: No. 41227,41227
• Citation: 337 P.2d 1043,184 Kan. 473
• Parties: Kenneth T. RHODES, Appellant, v. Charles DE HAAN, M.D.; Ernest P. Carreau, M.D.; Ray T. Parmley, M.D.; Adrain Mee, M.D.; Wesley Hospital and Nurse Training School, a Corporation, Appellees.
• Court: Kansas Supreme Court

Page 1043

337 P.2d 1043

184 Kan. 473

Kenneth T. RHODES, Appellant, v. Charles DE HAAN, M.D.; Ernest P. Carreau, M.D.; Ray T Parmley, M.D.; Adrain Mee, M.D.; Wesley Hospital and Nurse Training School, a Corporation, Appellees.

No. 41227.

Supreme Court of Kansas.

April 11, 1959.

C. H. Morris, Wichita, argued the cause, and Robert F. Bailey and Lester A. Holloway, Wichita, were with him on the briefs for the appellant.

William Tinker, Wichita, argued the cause, and Getto McDonald; Arthur W. Skaer, Jr.; Hugh P. Quinn; William Porter, John E. Lancelot; and Alvin D. Herrington, Wichita, were with him on the briefs for Charles DeHaan, M.D.; Ray T. Parmley, M.D.; and Wesley Hospital and Nurse Training School, a Corporation, appellees.

Wm. P. Thompson, Wichita, argued the cause, and Richard Jones; A. W. Hershberger; H. E. Jones; Jerome E. Jones; and Robert J. Roth, Wichita, were with him on the briefs for Ernest P. Carreau, M.D.; Ray T. Parmley, M.D.; and Adrain Mee, M.D., appellees.

PARKER, Chief Justice.

This was an action to recover damages for malpractice. Separate demurrers by the respective defendants to plaintiff's amended petition were sustained. Plaintiff appeals from such rulings.

Plaintiff commenced the action by filing a petition. Defendants attacked that pleading by a motion requesting an order requiring plaintiff to elect whether his cause of action was based upon res ipsa loquitur or upon allegations of specific acts of negligence. This motion was overruled.

Thereafter defendants filed a joint motion to make the petition more definite and certain and to strike. After the parties had so stipulated this motion was generally sustained with leave to file an amended petition.

Plaintiff filed an amended petition in due course. Thereupon defendants filed separate demurrers to this pleading on the ground it did not state a cause of action. These demurrers were sustained and plaintiff was again given time in which to amend his pleading. Instead of doing so he perfected the instant appeal wherein he specifies that the trial court erred in sustaining the demurrers of the respective defendants.

The amended petition is lengthy and in such form it cannot be easily summarized. For that reason, and in order that there can be no doubt as to the issue presented for determination on appeal or confusion with respect to its decision, we attach a copy of such pleading, omitting the caption, allegations of no importance to the issue, averments as to damages claimed, and the prayer, to this opinion as an appendix, where the alleged facts upon which plaintiff bases his cause of action will be available for ready reference.

By way of preliminary approach to the all decisive issue involved appellant raises two questions which require attention.

First he insists his amended petition is subject to liberal construction. That, as we understand it, is the well-established rule of this jurisdiction under conditions and circumstances such as have been heretofore related. See Hickert v. Wright, 182 Kan. 100, 319 P.2d 152, 154, where it is said:

'Where a trial court has properly ruled motions to make a petition definite and certain and to strike, and the plaintiffs have complied therewith, the amended petition when challenged by the separatae demurrers of several defendants as insufficient to state a cause of action will be liberally construed.' (Syl. p2.)

For other recent decisions of like import see Allen v. Brown, 181 Kan. 301, Syl. 2, 306, 310 P.2d 923; Vitt v. McDowell Motors, Inc., 180 Kan. 800, Syl. 4, 308 P.2d 115.

Next it is argued that the doctrine of res ipsa loquitur is applicable as against multiple defendants. We have so held. See Worden v. Union Gas System, Inc., 182 Kan. 686, 689, 324 P.2d 501, which reads:

'* * * It is well settled in this state that the doctrine of res ipsa loquitur is applicable as against multiple defendants. Nichols v. Nold, 174 Kan. 613, 258 P.2d 317, 38 A.L.R.2d 887; Waterbury v. Riss & Co., supra [169 Kan. 271, 219 P.2d 673]; Woods v. Kansas City, K. V. & W. R. Co., 134 Kan. 755, 8 P.2d 404. * * *' 182 Kan. at page 689, 324 P.2d at page 503.

At the outset it may be stated that, despite some quibbling between the parties, we are not disposed to labor arguments advanced respecting the import to be given the amended petition, hereinafter referred to as the petition, when surveyed as a whole. The right to relief therein sought is founded on the doctrine of res ipsa loquitur, an expression which means, literally, the transaction speaks for itself, and the facts and circumstances accompanying an injury may be such as to raise a presumption, or at least permit an inference, of negligence on the part of the defendant (38 Am.Jur., Negligence 989 § 295; 65 C.J.S. Negligence § 220, p. 987.

Nor is it necessary to here detail contentions made by the parties respecting their respective positions as to the properiety of the rulings on the demurrers. Stripped of all excess verbiage and extraneous matters they may be stated, in highly summarized fashion, thus:

Appellant contends that allegations respecting the injuries sustained by him, under the conditions and circumstances set forth in the petition, authorize an inference or raise a presumption that the parties therein charged were guilty of negligence, hence such petition states a cause of action under the doctrine of res ipsa loquitur.

Appellees insist the doctrine of res ipsa loquitur or the presumption of inference of negligence does not, except in a very few limited situations which do not embrace the allegations of the petition, apply to malpractice actions because negligence in such actions cannot be inferred from bad result, failure to recover, unusual happening, or other circumstance showing lack of success resulting from an operation; hence such doctrine had no application under the pleaded facts and the trial court's action in sustaining the demurrers to the petition on the ground it failed to state a cause of action was proper.

In order to properly determine the single appellate issue involved reference must be made to the established law of this jurisdiction relating to the force, effect and application of the doctrine of res ipsa loquitur and to the rights, duties and liabilities of physicians and surgeons.

We do not deem it necessary to here write a thesis on the general doctrine of res ipsa loquitur as recognized and applied in this state. For present purposes it may be said the entire subject is concisely but nevertheless comprehensively covered by the legthy statement appearing at pages 160 to 162, incl., of the opinion in Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P.2d 387, at pages 390-392, which statement is requoted in toto in a more recent decision, Rupe v. Smith, 181 Kan. 606, at pages 613 to 614, incl., 313 P.2d 293, at pages 299, 300, of the opinion in that case. We adhere to what is there said and held with respect to the doctrine of res ipsa loquitur generally and make such statement a portion of this opinion, as fully and completely as if set forth at length herein.

The ordinary principles, governing the duties and liabilities of physicians and surgeons, are well stated in Cummins v. Donley, 173 Kan. 463, 249 P.2d 695, involving an action for damages for malpractice, based on allegations of specific acts of negligence, where it is said:

'This court has recognized the general rule that a physician or surgeon is presumed to have exercised his legal duty of ordinary care and skill and, in the absence of an allegation in the petition to the contrary, it is presumed that he possesses that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities, and that he carefully and skilfully operated on the patient. No presumption of negligence of a physician or surgeon is to be indulged from the fact of injury or adverse result of his treatment of, or operation on, the patient. Waddell v. Woods, 158 Kan. 469, 474, 148 P.2d 1016, 152 A.L.R. 629; James v. Grigsby, 114 Kan. 627, 631, 632, 220 P. 267; 41 Am.Jur., 236, 237, Physicians and Surgeons, § 127; 70 C.J.S. Physicians and Surgeons § 62, p. 989.

'In an action for damages occasioned by negligence or malpractice of a physician, every fact necessary to constitute a cause of action must be alleged in the petition with reasonable definiteness and certainty. Where the breach of duty relied upon is negligence in the treatment of the patient, it is not sufficient merely to state that certain acts not negligent in themselves were done or omitted. A petition which alleges a course of treatment entirely consistent with the physician's exercise of all necessary care and skill, but alleging nonsuccess of the treatment, is insufficient to charge negligence or malpractice. 70 C.J.S. Physicians and Surgeons § 61, p. 985; 41 Am.Jur. 234, Physicians and Surgeons, § 124. The burden of pleading is not shifted to defendant by merely alleging in a petition that an unsuccessful result has attended the treatment or operation of the patient by the physician.' 173 Kan. at pages 465, 466, 249 P.2d at page 697.

For a more recent statement of the same principles see Goheen v. Graber, 181 Kan. 107, 111, 112, 309 P.2d 636.

The rule is no different in malpractice actions where--as here--it is conceded the pleader purposely stayed away from specific acts of negligence and based his right to recover under the doctrine of res ipsa loquitur and inference of negligence. This is fully established in Waddell v. Woods, 158 Kan. 469, 148 P.2d 1016, 1020, where it is said:

'In discussing the question of inferences and presumptions to be indulged in actions against physicians and surgeons, it is said in 41 Am.Jur. 236 (Physicians & Surgeons, § 127) that a physician or surgeon is presumed to exercise his legal duty of ordinary skill and care, and that he carefully...