Ritter v. Sivils

• Decision Date: 15 February 1956
• Parties: Otis RITTER, Plaintiff-Respondent, v. J. E. SIVILS, Defendant-Appellant.
• Court: Oregon Supreme Court

Page 211

293 P.2d 211

206 Or. 410

Otis RITTER, Plaintiff-Respondent, v. J. E. SIVILS, Defendant-Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 11, 1956.

Decided Feb. 15, 1956.

Ronald W. Husk, Eugene, argued the cause for appellant. On the brief were Harris, Butler & Husk, Eugene.

Maynard Wilson, Cottage Grove, argued the cause and filed a brief for respondent.

Before WARNER, C. J., and ROSSMAN, LATOURETTE and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the defendant, a chiropractic physician, from a judgment of the circuit court which was entered in a malpractice action and which awarded the plaintiff damages totaling $10,000. The judgment is based upon the verdict of a jury.

According to the complaint, the plaintiff employed the defendant in July, 1951, 'to treat him for a mild external and internal hemorrhoid condition.' The complaint contains the following specifications of its charges of negligence:

'1. Giving a caustic and sclerosing injection for the treatment of hemorrhoids, the type and severity of plaintiff's under the existing conditions.

'2. Failing to call a licensed physician to treat plaintiff's condition when he recognized that chiropractic treatments were not indicated.

'3. In improperly giving injections so that the needle and caustic solution entered the muscles veins and tissues in the rectal area rather than the veins.

'4. In treating the plaintiff with unsterile instruments and in an unsterile manner.

'5. In failing to treat or have the plaintiff treated for the infected condition arising after the injections above mentioned were given.'

The answer admitted that 'during the summer of 1951 defendant treated plaintiff for a mild hemorrhoid condition.' All averments of the complaint, with the exception of those which alleged that the defendant was a licensed chiropractic physician and that he treated the plaintiff for a mild hemorrhoid condition, were denied by the answer.

The defendant, in appealing, presents the following two assignments of error:

'The Court erred in denying the Defendant's Motion for an Order of involuntary non-suit made as follows: * * *.'

'The Court erred in failing to give the following requested instruction: 'I instruct you to find your verdict in favor of the defendant J. E. Sivils.''

We omitted quoting the motion for an involuntary nonsuit because of its length. It mentioned, one by one, the specifications of negligence which are set forth in a preceding paragraph of this opinion, and in each instance succeeded the particular specification with a claim that it was not supported with evidence.

The evidence, as transcribed, covers 218 typewritten pages. Three physicians, including a specialist in proctology, testified in behalf of the plaintiff. The defendant, together with two fellow chiropractic practitioners and one medical physician, gave testimony for him. The medical practitioner whom the defendant called had special qualifications in the province of proctology.

We agree with the defendant-appellant that: (1) Malpractice actions are based upon negligence and that they do not differ in their essential elements from any other kind of action in which recovery is sought on charges that the alleged tort feasor failed to exercise due care. (2) The plaintiff in malpractice actions must establish negligence, injury and a relationship of proximate cause between the two. (3) A chiropractor is under a duty to treat a patient with reasonable care, and the criterion by which reasonable care is determined is the standard employed in the practitioner's locality. (4) A chiropractor is not a warrantor of cure, and if a good result does not ensue from his efforts the doctrine of res ipsa loquitur is not available to his erstwhile patient. (5) If the issue turns upon some fact beyond the ken of laymen, expert testimony must be produced showing that the practitioner's treatment fell below the standard of the profession and was the proximate cause of the condition for which the plaintiff seeks an award of damages. (6) If the evidence discloses two or more possible causes, for only one of which the defendant is responsible, the defendant cannot be adjudged liable unless the evidence shows that the cause for which he is responsible is the more probable.

We cite no authorities in support of the above statements of the controlling legal principles because they have been many times enunciated by this court and their application to various fact situations is illustrated in our precedents. The plaintiff-respondent contests contests none of those principles and appellant's brief contains a collation of the decisions.

It will be recalled that both the complaint and the answer alleged that the plaintiff came to the defendant with a mild hemorrhoid condition. However, as a witness, the defendant testified:

'Q. And how did you classify his condition as to whether it was mild, severe or acute? A. Well, it was a severe condition, * * * it had best be done by surgery.'

The foregoing is an instance in which the defendant, as a witness, came into conflict with his own pleading. The record reveals several situations in which testimony given by him clashed with testimony given previously by the plaintiff. All of those conflicts, with the exception of the one about the pleadings, were, of course, for the jury's disposition, and since the verdict was for the plaintiff, it is evident that the triers of the facts accepted the plaintiff and his witnesses as the superior sources of the truth. Our duty does not require us to review the jury's action, but merely to ascertain whether or not the verdict is supported by substantial evidence.

The plaintiff was a sawmill worker, 40 years of age, when he called upon the defendant July 28, 1951, and inquired whether or not the defendant could treat the plaintiff's hemorrhoidal condition. Upon that occasion the plaintiff was accompanied by his stepfather, Ralph Masel, who had recently received from the defendant professional treatment. Before answering the plaintiff's inquiry, the defendant gave him an examination and at its conclusion replied, according to the plaintiff, that 'my hemorrhoids weren't so bad but what he could take care of them with the injections.' At that point the plaintiff asked the defendant concerning the injections and their purpose. The defendant, so the plaintiff swore, replied:

'He used a pen or a pencil, I would say about like that, about the size of a pen or pencil; and he said the hemorrhoids were up there, the highest of them, about that high; and he goes up about that far above them (indicating) and injects them all the way down.'

Going on, the plaintiff testified that the defendant told him that

'this injection of fluid they used causes an irritation and that causes scar tissue, and that pulls the hemorrhoid tissue down and eliminates your hemorrhoids that way. * * * Each time he told me that the fluid he used and the injections caused an irritation and that causes scar tissue and peels it down--that is the only way I can explain it.'

Upon cross-examination, the plaintiff gave the following additional account:

'In regards to that the explanation I can give you is that he illustrated with a pen or pencil, and then he said he starts injecting above that and works on down into the actual hemorrhoid itself. Well, he didn't say he put it in the hemorrhoid itself. But he said he starts above it I would say about an inch and injects the hemorrhoid on down the way I took it. The way he was speaking if you got several hemorrhoids he went up to the top ones and he started his injections there and worked on down.

'Q. Did he indicate he was going to inject into the vein or into the subcutaneous tissue? A. He said into this vein itself.'

The plaintiff's stepfather, the aforementioned Ralph Mansel, gave testimony similar to the plaintiff's. He, too, said that the treatments would consist of injections and that 'the substance that he used would cause the scar tissue and draw that skin up--the hemorrhoidal vein.' The plaintiff's wife accompanied the plaintiff upon some of his visits to the defendant's office and in the course of one of them inquired of the defendant as to the nature of the treatments. According to her, the defendant 'told how far up he started these injections' and added, 'This causes an irritation, and that causes scar tissue, and that is what pulls the hemorrhoid down.'

The defendant expressed a belief, so the plaintiff testified, that three or four treatments would remedy his condition. The plaintiff was satisfied with the defendant's explanation and told him to proceed. He testified that the first treatment was given that day and that eight or nine more were given at intervals of about two weeks apart. The last occurred November 24, 1951.

The plaintiff described the treatments in this manner:

'He inserted an instrument into me, and then he used a hypodermic syringe and needle; and I had several hemorrhoids, and he injected--as near as I can remember he must have injected all of them because he gave me several injections.

* * *

* * *

'They were just a little prick of the needle, and then it felt like, and then he raised it up, and I could feel this fluid running in.

'Q. How did the fluid feel? A. There wasn't no feeling to it only you could just feel it run in there. It didn't hurt.'

According to the plaintiff, he felt a distinct improvement after the second or third treatment, and his impression was confirmed by the defendant who assured him that if any other practitioner examined him 'they would hardly know you had any hemorrhoids.' However, the defendant suggested, so the plaintiff swore, that he ought to take more treatments; the plaintiff yielded to the advice.

The plaintiff testified that none of the treatments, with the exception of the seventh which we will presently describe, caused the flow of any blood. He also testified that until after the...