Richison v. Nunn, 34496

• Decision Date: 18 June 1959
• Docket Number: No. 34496,34496
• Parties: Roy E. RICHISON and Vera Richison, his wife, Respondents, v. Dr. Leslie L. NUNN and Elizabeth Nunn, his wife, Appellants.
• Court: Washington Supreme Court

Page 1

57 Wn.2d 1

340 P.2d 793

Roy E. RICHISON and Vera Richison, his wife, Respondents, v. Dr. Leslie L. NUNN and Elizabeth Nunn, his wife, Appellants.

No. 34496.

Supreme Court of Washington, En Banc.

June 18, 1959.

McMullen, Snider & McMullen, Vancouver, for appellants.

Kennett, McCutcheon & Soderland, Seattle, William C. Klein, Vancouver, for respondents.

ROSELLINI, Judge.

This is a medical malpractice action. The complaint alleged that the defendant doctor (who will be referred to as the defendant) had negligently sewed a nerve into soft tissue adjacent to the surgical incision which he made for a hernia operation performed upon the plaintiff wife (who will be referred to as the plaintiff) in June 1952; that he negligently failed to discover that he had so sewed a nerve into soft tissue; that he did not possess and use, in the performance of the hernia surgery, the knowledge and care ordinarily and customarily possessed and used by surgeons in Vancouver and similar communities in that he failed to locate the nerves in the area of the operation and in that he failed to avoid sewing the nerve into the adjacent soft tissue and injuring the nerve. It was further alleged that the plaintiff, by reason of the defendant's conduct was caused to suffer excruciating and agonizing pain of which the defendant was promptly advised, and that the defendant then and there failed and refused to make an examination to determine the cause of such pain; that the defendant refused daily to examine the plaintiff to determine the cause of her excruciating pain, but on the contrary, required her to stand and walk and negligently failed to treat said injury and the resulting pain and suffering. As a result of the defendant's negligence, it was alleged that the plaintiff had become permanently disabled. Damages in the sum of $180,700 were asked.

After a lengthy trial, the cause was submitted to a jury, which returned a verdict in favor of the plaintiff. The defendant appeals from the judgment entered thereon, assigning error to the denial of his various motions directed to the insufficiency of the evidence to sustain the verdict.

A challenge to the sufficiency of the evidence, of course, admits the truth of the opposing party's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the party against whom the motion is made. Traverso v. Pupo, 51 Wash.2d 149, 316 P.2d 462.

The burden was upon the plaintiff to prove one or more of the allegations of negligence and that such negligence was the cause of her disability. It is well settled that, before a physician or surgeon may be held liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases, or he must have neglected to do something required by that standard. In order to sustain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown, and, further, that the doctor failed to follow the methods prescribed by that standard. Negligence on the part of the physician or surgeon by reason of his departure from the recognized standard of practice must be established by medical testimony. An exception to this rule is recognized where the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Hurspool v. Ralston, 48 Wash.2d 6, 290 P.2d 981, and cases cited therein. In such cases the courts, in effect, apply the doctrine of res ipsa loquitur which shifts the burden of proof to the defendant when the injury is one which does not ordinarily occur without negligence. Olson v. Weitz, 37 Wash.2d 70, 221 P.2d 537. The facts of this case do not bring it within this exception, as the following summary of the evidence will show.

The plaintiff's evidence, which we accept as true, tended to show that prior to the herniorrhaphy which the defendant performed in June, 1952, she had been in reasonably good health and had recovered without indident from a hysterectomy and overiotomy which the defendant had performed in 1951.

The plaintiff's hernia developed in the left inguinal area as a result of a fall which she sustained on the basement stairs in her home. After a period of observation and conservative treatment, the defendant recommended surgery, to which the plaintiff consented. She was told by the defendant that this would be a comparatively simple operation from which she should recover quickly. The defendant and his assistant testified to the procedure which he followed in performing the herniorrhaphy, a procedure which his medical witnesses testified was proper and according to the accepted standard. The plaintiff offered no medical evidence to the contrary.

Also, the plaintiff offered no medical evidence that the post operative care given the plaintiff, as shown by the hospital records, was less than or different from that required by the accepted standards of practice. The only medical evidence on this matter was produced by the defendant, whose witnesses testified that the procedures conformed to the applicable standard.

The plaintiff, however, testified that when she awoke from the anesthetic, she was screaming with pain, and the defendant conceded that this was not the usual reaction. There was also evidence in the hospital records that she complained frequently of pain in her leg and operational area during her stay in the hospital. She testified that though she complained to the defendant of intense pain, he did not examine the incision but simply explored the area by hand pressure without removing the bandage. (The plaintiff makes much of this testimony and the jury's right to believe it; however, the record is devoid of any evidence that such an examination would have revealed anything helpful in diagnosing the cause of the plaintiff's distress.) She testified further that the defendant told her to get up and walk and that if she would do so, the pain would go away. The defendant admitted that he had so admonished her, in accord with his usual practice of encouraging early ambulation. There was no evidence that this practice was contrary to the standard or that it was improper in the plaintiff's situation.

After the plaintiff returned home from the hospital and the stitches had been removed, she continued to suffer pain in her leg and complained of this to the defendant. He diagnosed her complaint as left sciatica and committed her to the hospital for icebag applications and diathermy. If this diagnosis was unwarranted at the time or if the treatment given was improper or had any adverse effect on the plaintiff's condition, such facts are not disclosed by the record. The testimony of Dr. Boersma, the doctor whom she consulted a few weeks later and who remained her physician until the time of trial, indicates that the diagnosis was not unwarranted by the symptoms she displayed at that time. He stated that, on his first examination, his impression was that she might be suffering from some type of sciatic neuritis 'secondary to something else.'

After her release from the hospital, according to the plaintiff's testimony, she continued to complain of pain, but the defendant told her there was nothing wrong with her and that her husband humored her too much, and that if he did not stop it, she would never 'come out of it,' that she would lose her mind entirely and he would send her to Steilacoom. She conceded that, in spite of this casual diagnosis, he had sent her to an X-ray therapist, but she received no relief from the first treatment and did not return for her second appointment. The defendant recommended she see a psychiatrist and told her he could do nothing further for her. She refused to take this advice and went instead to Dr. Boersma, also a general practitioner in Vancouver. This was five weeks after her herniorrhaphy.

Dr. Boersma, like the defendant, was unable to satisfactorily diagnose the plaintiff's trouble and referred her to a neurologist, who concurred with the defendant's conclusion that the cause was subjective and found no evidence of involvement of the femoral nerve or complication in her surgical procedure. His recommended procaine injections having produced no satisfactory relief, the plaintiff was referred to an internist in Portland, who could find no explanation for her problem and could think of no reason why it should be caused by the surgery.

A few weeks later the plaintiff was referred to Dr. Frewing, a surgeon, who performed an exploratory operation in the region of the scar, and found an unusual amount of scarring (there is no suggestion that this was due to any negligence on the part of the defendant) and a small structure partially encased in the scar tissue and adherent to Poupart's ligament. In order to discover the nature of this structure, he performed a pinching test which revealed it to be a motor nerve which was not functioning below the area of encasement. Dr. Frewing formed the impression that the nerve might be in part sensory ('superficial cutaneous of the thigh'). His explanation of the result of the pinching test was given in these words: 'I felt that this was part of the scarring process that was in this area [indicating] and this particular nerve was bound down a little more firmly than some others.'

A microscopic examination of a specimen of the excised tissue which Dr. Frewing submitted to the University of Portland pathology laboratory revealed a small nerve encased in scar tissue and a large amount of suture material. While the plaintiff showed improvement after this operation, her symptoms later returned, and there was no evidence that any of the doctors attributed her disability to the adherence of the nerve to the ligament, or attributed this adherence to the manner in which the...