Roach v. Hockey, 78-1828
| Decision Date | 31 August 1981 |
| Docket Number | No. 78-1828,78-1828 |
| Citation | 53 Or.App. 710,634 P.2d 249 |
| Parties | W. Larry ROACH, Appellant, v. Arthur A. HOCKEY, Physician and Surgeon and Doctors Serbu, Hockey, and Golden, Physicians and Surgeons, P. C., an Oregon Professional corporation, Respondents. ; CA 18574. |
| Court | Oregon Court of Appeals |
W. Wallace Ogdahl, Salem, argued the cause for appellant. On the brief were Roger C. Pearson and Ferder, Ogdahl & Souther, Salem.
Randall Bryson, Eugene, argued the cause for respondents. With him on the brief were Calkins & Calkins, and Bryson & Bryson, Eugene.
Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.
This is an action for medical malpractice. Plaintiff alleged that defendants, physicians and surgeons, 1 were negligent in their treatment of him. Specifically, plaintiff alleged that defendants failed to exercise the necessary degree of skill and care during an operation to remove a herniated disc from his upper spine and that as a result he suffered paralysis in his arms and hands. The case was tried to a jury and a verdict was returned for defendants. Plaintiff appeals, assigning as error the giving of certain jury instructions, the failure to give certain others and a number of evidentiary matters. We affirm.
Plaintiff suffered from a large herniated disc located in the neck area. On March 23, 1976, defendant Hockey performed a laminectomy to remove the disc. Immediately after the operation plaintiff could not move his hands and had only slight control over his arms. This condition has continued to this date with only minimal improvement.
In his complaint plaintiff alleged that the damage to his spinal cord, and, thus, his paralysis, was due to the position in which he was placed during the operation. It was plaintiff's theory that, during the course of the operation, he was placed in a position of such extreme forward flexion that undue pressure from either the osteophytic ridges or the herniated disc was placed upon the spinal cord and its arteries, causing interference with the blood supply to the motor horn cells in the area. This lack of blood resulted in damage to these cells and caused plaintiff's paralysis.
In support of his theory, plaintiff offered the opinion of a Dr. Harris and an x-ray taken during the operation. Dr. Harris testified that a patient must be flexed forward during a laminectomy. However, because of concern with paralysis and keeping the patient's air passage free, the surgeon performing the operation must be cautious when angling the patient or positioning his head and neck forward. In Dr. Harris's opinion, the intra-operative x-ray showed that plaintiff was placed in a position of excessive flexion. This resulted in interference with the blood supply to the arteries in the area for a period of time sufficient to cause damage to plaintiff's nerve cells.
Defendants' witness, Dr. Paxton, disputed plaintiff's contentions. In his opinion the intra-operative x-ray was taken from an unusual angle and did not depict the degree of angulation with certainty. Reviewing the x-rays in the case, he concluded that plaintiff's neck was correctly flexed forward during the operation and that there was no evidence of excessive flexion. He agreed that plaintiff's paralysis was due to vascular impairment. However, according to Dr. Paxton, this interference was not due to the pressure of extreme flexion but rather to an anatomical variation of arteries in the damaged area. 2
In their answer, defendants not only denied plaintiff's claim of negligence, but claimed further that plaintiff's condition resulted from an automobile accident and that plaintiff had signed a release of all claims arising from injury due to that accident. A copy of the release, dated June 21, 1976, was introduced into evidence. It states that the plaintiff releases "State Farm Insurance Company and Lynn Lindstrom * * * and all other persons, firms or corporations liable or who might be claimed to be liable * * * on account of all injuries, known or unknown which resulted from an automobile accident occurring on * * *." State Farm was the insurance carrier and Lindstrom the driver in the automobile accident. At trial plaintiff contended that the release applied only to the named person and not to the defendants in this case.
We will discuss first those claims of error relating to the instruction of the jury. Plaintiff's initial contention is that the trial court erred in instructing the jury that an honest error in judgment or an action in good faith would not be negligence. Plaintiff contends that the jury should have been instructed that a doctor is exempt from liability for an error of judgment only when there is a reasonable doubt as to the nature of the physical condition involved or as to the proper course to be followed. He argues that the failure to give this additional qualifying instruction amounted to telling the jury that a physician is not liable for an inappropriate judgment if he acts in good faith.
Plaintiff correctly states the law, but only in part. In Moulton v. Huckleberry, 150 Or. 538, 546-547, 46 P.2d 589 (1935), the court stated the rule as follows:
And, in Malila v. Meacham, 187 Or. 330, 354, 211 P.2d 747 (1949), the court stated:
"It is well settled that a physician or dentist is not a warrantor of cures * * * and that, if a regularly licensed physician or dentist with reasonable diligence employs the skill of which he is possessed in treating a surgical case, he is not liable for an error of judgment." (Citations omitted.)
See also, Eckleberry v. Kaiser Foundation, et al., 226 Or. 616, 626-627, 359 P.2d 1090 (1961); Williard v. Hutson, 234 Or. 148, 160, 378 P.2d 966 (1963). From the above cases, it is clear that a physician is not liable for an error of judgment where there is a reasonable doubt or a difference of opinion as to the nature of the patient's condition or the proper course of treatment and the physician acts with reasonable care and skill in exercising that judgment.
In examining plaintiff's claim of error, we consider the jury instructions as a whole. Hansen v. Bussman, 274 Or. 757, 781, 549 P.2d 1265 (1976); Horn v. City of Elgin, 28 Or.App. 545, 550, 559 P.2d 1319, rev. den. 278 Or. 157 (1977). In this case the trial court instructed the jury that, in determining whether Hockey was negligent in the care and treatment of plaintiff, it was to determine if Hockey used the degree of skill, care and diligence which the ordinary, prudent, skillful physician engaged in the practice of neurosurgery in the same or a similar community would have used. The court then went on to state that:
"If you believe from the evidence in this case that competent neurosurgeons in the same or similar communities as the defendants might have differed with Dr. Hockey in their judgment of the proper position of the plaintiff during the operating procedures but if the defendant in good faith and in the exercise of reasonable care erred in such judgment, then he would not be negligent."
This is a complete and correct statement of the law. There was no error.
Plaintiff's second contention is closely related to his first. He claims that the trial court erred in instructing the jury "that a doctor is not a guarantor of the results of his care and treatment of the patient." The law in Oregon is that a physician is not a warrantor of cures. See Eckleberry v. Kaiser Foundation, et al., supra, 226 Or. at 626, 359 P.2d 1090; Malila v. Meacham, supra, 187 Or. at 354, 211 P.2d 747. Plaintiff acknowledges this state of the law but contends that the instructions given imply that a physician does not guarantee a reasonable course of treatment. We disagree. The instructions only state that a doctor does not guarantee the results of his treatment. The instructions do not imply that a doctor does not guarantee the quality of his care. In fact, they expressly state and re-state the requirement that a doctor utilize the accepted and ordinary level of skill and care expected of a doctor in his position. Viewing the instructions in their entirety, the jury could not have been misled.
The next instruction challenged by plaintiff concerns the release signed by plaintiff. The trial court instructed the jury as follows:
Plaintiff claims that the court, in effect, told the jury that the issue...
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