Riggs v. Gouldner

• Decision Date: 09 December 1939
• Docket Number: 34336.
• Citation: 150 Kan. 727,96 P.2d 694
• Parties: RIGGS v. GOULDNER.
• Court: Kansas Supreme Court

96 P.2d 694

150 Kan. 727

RIGGS v. GOULDNER.

No. 34336.

Supreme Court of Kansas

December 9, 1939

Syllabus by the Court.

On defendant's appeal from orders overruling demurrer to plaintiff's evidence and overruling motions for directed verdict and for judgment on the record, issue was sufficiency of plaintiff's evidence to establish a prima facie case and evidence on behalf of defendant could not be considered except in so far as such evidence might be supplementary to plaintiff's evidence.

On defendant's appeal from orders overruling demurrer to plaintiff's evidence and overruling motions for directed verdict and for judgment on the record, every reasonable inference favorable to plaintiff must be indulged in connection with evidence presented in plaintiff's behalf.

Evidence held insufficient to show that physician was guilty of malpractice in respect to diagnosis and treatment of patient who was suffering from abdominal growth.

The record is examined in an action for damages founded on alleged malpractice by a physician, and it is held that the evidence for the plaintiff was not sufficient to establish a cause of action and that the trial court erred in overruling the demurrer to the evidence and in overruling defendant's motions for a directed verdict and for judgment on the record.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Thelma Riggs against R. M. Gouldner to recover damages for alleged malpractice by a physician. From orders overruling demurrer to plaintiff's evidence and overruling motions for directed verdict and for judgment on the record, the defendant appeals.

Glenn Porter, Getto McDonald, Dwight S. Wallace, and William Tinker, all of Wichita, for appellant.

Clarence R. Sowers, Claude E. Sowers, and Byron Brainard, all of Wichita, for appellee.

HOCH Justice.

This was an action to recover damages for alleged malpractice by a physician. The case was tried by a jury which was unable to agree. It is here on appeal of defendant from orders of the court overruling a demurrer to the plaintiff's evidence and overruling motions for a directed verdict and for judgment on the record.

Briefly the facts are that Thelma Riggs, the plaintiff, was operated upon by Dr. R. M. Gouldner, a physician and surgeon of Wichita, on September 7, 1936, and that following the operation and upon the advice of Dr. Gouldner, she was given X-ray treatments by Dr. Hagan and that she had a subsequent operation performed by Dr. Wolfe and that she was treated for various complaints by Dr. Mermis and Dr. John H. Wallace. The heart of the complaint is that Dr. Gouldner did not use approved methods in diagnosing plaintiff's trouble; that without pursuing adequate methods of diagnosis he determined that the patient was suffering from a malignant growth or sarcoma; that upon his advice deep X-ray treatments were employed which proved very harmful to the plaintiff and that as a result of these treatments and the administration of certain drugs, alleged to have been prescribed by doctors subsequently treating the plaintiff, at the suggestion and under the direction of the defendant, plaintiff's health was greatly impaired and she suffered serious and permanent physical injury. Judgment was asked in the sum of $40,000.

The defendant introduced the testimony of various doctors that the methods of diagnosis used were methods generally approved and followed by physicians and diagnosticians of good standing in the locality and that the treatment prescribed was one generally used and approved by the medical profession. However, the issue here being the sufficiency of the plaintiff's evidence to establish a prima facie case the evidence on behalf of the defendant cannot be considered except insofar as it may be supplementary to plaintiff's evidence.

Plaintiff's witnesses, in addition to herself, were her mother, Florence Riggs, her father, T. B. Riggs, Dr. Tedrick, an X-ray specialist, and Drs. H. C. Wallace and John Wallace osteopathic physicians. The hospital record and a laboratory report were introduced as exhibits.

Before examining the evidence it is well to state some well-established rules of law applicable to malpractice actions.

A physician or surgeon is not a guarantor of the correctness of his diagnosis or of the efficacy of the treatments prescribed (48 C.J. 1119, 1120), but he is required to exercise the degree of skill and learning ordinarily possessed and exercised under similar circumstances by the members of his profession in good standing and to use ordinary and reasonable care and diligence and his best judgment in the application of his skill to the case. (48 C.J. 1113). Negligence cannot be presumed from the mere failure to obtain the best results. Paulich v. Nipple, 104 Kan. 801, 180 P. 771. To establish liability there must be competent testimony that there was lack of care or that approved procedure and methods were not followed and the general rule is that the negligence in the treatment which is claimed caused the injury must be shown by medical witnesses called as experts, that it must come from those qualified by education, training and experience to give it. Saylor v. Brady, 114 Kan. 764, 220 P. 1047; Paulich v. Nipple, supra, following Sly v. Powell, 87 Kan. 142, 123 P. 881; James v. Grigsby, 114 Kan. 627, 220 P. 267; Pettigrew v. Lewis, 46 Kan. 78, 81, 26 P. 458, and authorities there cited; Tefft v. Wilcox, 6 Kan. 46, 59.

This does not mean, however, that there may not be certain facts concerning which persons not medical experts are permitted to testify. This court has said in numerous cases that the general rule applies only to such matters as are clearly within the domain of medical science and that matters that are within the common knowledge of mankind may be testified to by anyone familiar with the facts. McMillen v. Foncannon, 127 Kan. 573, 274 P. 237; Stockham v. Hall, 145 Kan. 291, 65 P.2d 348; Flentie v. Townsend, 139 Kan. 82, 30 P.2d 132; Yard v. Gibbons, 95 Kan. 802, 149 P. 422; Stecher v. London Guarantee & Accident Co., 133 Kan. 89, 298 P. 754. Concerning medical testimony it is a general rule that a member of one school of medicine is not permitted to testify as to whether a defendant belonging to another school of medicine has employed the approved procedure and treatments of his own school. This rule, however, has been modified by many courts to the extent that where the two schools teach and practice the same methods of diagnosis or treatment in connection with the particular ailments or branch of medicine involved in the case, testimony may be received from a practitioner who does not belong to the same general school as that of the defendant. 21 R.C.L. 383; Yard v. Gibbons, supra.

Professional testimony is of primary concern, on this review, but summary of other testimony will be given insofar as at all pertinent, as background or otherwise, to the issue before us.

The plaintiff, Thelma Riggs, testified, in substance, as follows:

Five or six months before the operation was performed by Dr. Gouldner she (then Mrs. Charles Green) gave birth to a fullterm dead child. Subsequently she was treated for some weeks by Dr. E. C. Rainey who then accompanied her and her mother for a consultation with Dr. Gouldner. Dr. Rainey told Dr. Gouldner what had happened and all about it. He explained the matter fully and the things which he had done. Dr. Rainey had previously taken her temperature, her blood pressure and examined the condition of her abdomen. He told Dr. Gouldner that the plaintiff was running a temperature. She described her symptoms to Dr. Gouldner telling him, among other things, that she had been having pain in her left side. There was a pressure there when she stood on her feet which made her sick and caused her to vomit. Dr. Gouldner did not take her temperature nor her blood pressure but did test her pulse. He placed her upon the table and made an examination of her abdomen, both externally and internally, through the vagina. She said that Dr. Gouldner made a thorough examination, that he found some kind of a lump in her abdomen and she explained that was where she had been having pain; that she had then been having this continuous pain in her side for about three weeks. After this first examination Dr. Gouldner told her that the tumor was about the size of a small grape fruit and that he would not know what it would be until he operated. This first consultation was in the latter part of August, 1936. An operation was performed on September 7. A few hours afterward she talked to Dr. Gouldner and asked him what he did, and he said he could not do a great deal because it was impossible to operate and take the growth out and that she would have to recover from the shock and then they would try to do something else. Three or four weeks later Dr. Gouldner asked her how she was feeling and she told him she was in about the same condition she was before the operation and he said they would have to make arrangements for X-ray treatments and told her that he would make reservation for her at the hospital and for her to go there and take the treatments. These treatments were administered by Dr. Hagan. Later on, peritonitis developed and she went back to the hospital and said that she did not have another conversation with Dr. Gouldner until that time. An operation was performed by Dr. Wolfe. She said that Dr. Gouldner told her father and mother to take her down the hall and Dr. Wolfe would operate, as he was on another case. She testified that Dr. Gouldner stopped in to see her a number of times, taking her pulse and looking at her chart at the head of her bed. After about ten days at the hospital for this second operation she went

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