Sprouse v. Magee

• Decision Date: 04 August 1928
• Docket Number: 4903
• Parties: ALEX SPROUSE, JOYCE WILLIAM SPROUSE, a Minor, MARJORIE MAE SPROUSE, a Minor, and ALEX SPROUSE, Guardian ad Litem of JOYCE WILLIAM SPROUSE and MARJORIE MAE SPROUSE, Minors, Appellants, v. C. F. MAGEE, Respondent
• Court: Idaho Supreme Court

269 P. 993

46 Idaho 622

ALEX SPROUSE, JOYCE WILLIAM SPROUSE, a Minor, MARJORIE MAE SPROUSE, a Minor, and ALEX SPROUSE, Guardian ad Litem of JOYCE WILLIAM SPROUSE and MARJORIE MAE SPROUSE, Minors, Appellants, v. C. F. MAGEE, Respondent

No. 4903

Supreme Court of Idaho

August 4, 1928

PHYSICIANS AND SURGEONS-MALPRACTICE-ACTION FOR DAMAGES-CONTRIBUTORY NEGLIGENCE-PRIVILEGED COMMUNICATIONS-WAIVER.

1. In action against physician for malpractice, causing death of plaintiff's wife, court erred in submitting to jury question of plaintiff's contributory negligence in causing deceased's pregnancy, contrary to defendant's warning, as such negligence could not be contributing cause of alleged damage from negligence in treating effect thereof.

2. In action against physician for malpractice, causing death of plaintiff's wife, husband's contributory negligence in not notifying defendant immediately on marked change in deceased's condition after leaving hospital may be pleaded as defense, as in action by deceased, had she survived, since husband would have been necessary party, and damages recovered community property.

3. Rejection of evidence as a class may obviate necessity of offer to prove what witness' response to a particular question would have been.

4. Whether privilege of exclusion of physician's testimony as to information acquired in attending patient, under C. S sec. 7937, subd. 4, may be waived after latter's death must be determined from interpretation of such statute in the light of the common law at the time it was adopted.

5. Changes in the common law by adoption of a statute are not to be presumed, unless an intent appears to accomplish such purpose.

6. Other portions of the same act or section may be resorted to as aid in determining the sense in which a word, phrase or clause is used.

7. A word, phrase or clause repeatedly used in a statute will be presumed to bear the same meaning throughout, in absence of anything to show that another meaning is intended, such as difference in subject matter.

8. Right to waive privilege as to evidence of physician concerning information acquired in attending patient, under C. S., sec. 7937, subd. 4, survives patient, and may be exercised after latter's death, words "without consent of his patient" making no change in common law.

9. Causes of action for death, instituted after death, and continuing action begun by deceased for injuries causing death are distinct, with different elements of damage, though some overlap, and recovery in either bars recovery in other as to elements recoverable in either.

10. As heirs claim under deceased, they cannot recover for his death, if he could not have recovered for injuries resulting therein.

11. Recovery of heirs for decedent's death is measured by the benefits which would have accrued to them had he lived.

12. Heirs of deceased, as well as latter's personal representative, stand in such representative capacity as to have right to waive privilege of exclusion of physician's testimony concerning information acquired in attending deceased, under C. S., sec. 7937, subd. 4.

13. Evidence obtained from an autopsy is not privileged, under C S., sec. 7937, subd. 4, when not dependent on, but capable of being segregated by physician from, information received as attending physician.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Edgar C. Steele, Judge.

Action for damages for death by wrongful act. Judgment for defendant. Plaintiffs appeal from order denying motion for new trial. Reversed and remanded.

Reversed and remanded. Costs to appellants.

Frank L. Moore and Latham D. Moore, for Appellants.

The heirs and personal representatives of a deceased person may waive the privilege conferred upon a patient by C. S., subd. 4, sec. 7937, and may call the physician who attended deceased prior to his death to testify concerning information acquired necessary to enable him to prescribe or act for the patient. (Grieve v. Howard, 54 Utah 225, 180 P. 423; Schornick v. Schornick, 25 Ariz. 563, 31 A. L. R. 159, 220 P. 397; Craig v. Craig, 112 Kan. 472, 212 P. 72; Frasier v. Jennison, 42 Mich. 206, 3 N.W. 882-885; Bruington v. Wagoner, 100 Kan. 10, 164 P. 1057; Flack v. Brewster, 107 Kan. 63, 190 P. 616; Neitzel v. Purchase, 88 Neb. 835, 130 N.W. 746, 33 L. R. A., N. S., 319; Olson v. Court of Honor, 100 Minn. 117, 117 Am. St. 676, 110 N.W. 374, 8 L. R. A., N. S., 521.)

In California, one of the courts adhering to the minority rule that the privilege of the statute is personal to the patient, holds that plaintiff to whom patient has assigned a promissory note for collection may waive privilege and call attending physician to testify. (San Francisco Credit Clearing House v. MacDonald, 18 Cal.App. 212, 122 P. 964.)

Information obtained by physician from autopsy is not privileged. ( Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 47 P. 1019.)

Contributory negligence of parent is not imputable to child in an action brought in child's behalf. (McCann v. City of Detroit, 234 Mich. 268, 207 N.W. 923; Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 107 P. 416: Bloomquist v. City of La Grande, 120 Ore. 19, 251 P. 252.)

A. H. Oversmith, for Respondent.

From the entire record it must affirmatively appear that appellants were not accorded a fair trial, and the exclusion of the evidence of attending physicians of the decedent was not error unless an offer of proof was made. (State v. Hunsaker, 37 Idaho 413, 216 P. 721; State v. Dawson, 40 Idaho 495, 235 P. 326; Spongberg v. First National Bank, 15 Idaho 671, 99 P. 712; 3 C. J., p. 825, sec. 736; United States v. Alexander, 2 Idaho 386, 17 P. 746.)

The testimony attempted to be elicited by appellants from Doctors Gritman and Armstrong was for the purpose of bringing before the jury information acquired by such doctors in attending a patient. Such information or knowledge is privileged and cannot be divulged after death. (C. S., sec. 7937, subd. 4; Jones v. City of Caldwell, 23 Idaho 467, 130 P. 995; Emmons v. Barton, 109 Cal. 662, 42 P. 303; Harrison v. Sutter St. Ry. Co., 116 Cal. 156, 47 P. 1019; Re Flint's Estate, 100 Cal. 391, 34 P. 863; Westover v. Aetna Ins. Co., 99 N.Y. 56, 52 Am. Rep. 1, 1 N.E. 104; Renihan v. Dennin, 103 N.Y. 573, 57 Am. Rep. 770, 9 N.E. 320; Loder v. Whelpley, 111 N.Y. 239, 18 N.E. 874; note, 17 Am. St. 570.)

The interpretation given by the courts of the state where a statute originated and before the adoption of such statute by Idaho should be controlling. The origin of C. S., sec. 7937, being the state of New York, the decisions of New York and California courts should be followed. (Oylear v. Oylear, 35 Idaho 732, 738, 208 P. 857; Burbank v. Kirby, 6 Idaho 210, 96 Am. St. 260, 55 P. 295; Stein v. Morrison, 9 Idaho 426, 75 P. 246; O'Neill v. Potvin, 13 Idaho 721, 93 P. 20, 257; Shoshone County v. Profitt, 11 Idaho 763, 84 P. 712; Neil v. Public Utilities Commission, 32 Idaho 44, 52, 186 P. 710.)

TAYLOR, J. Wm. E. Lee, C. J., and Givens, J., concur.

OPINION

TAYLOR, J.

The complaint alleges this action brought by Alex Sprouse on his own behalf and as guardian ad litem of his two minor children, to recover damages for alleged malpractice by the defendant, a doctor, resulting in the death of the wife and mother of the respective plaintiffs.

The complaint alleged malpractice in a first negligent and incorrect diagnosis and treatment about February 25, 1925, and subsequent erroneous and negligent diagnosis, and an operation pursuant to such mistaken diagnosis, and carelessness therein, resulting in infection from which the patient died, alleging that with reasonable and ordinary care and skill the defendant could have readily diagnosed deceased's ailment correctly, and performed the necessary operation therefor, and that the patient would not, if so treated, have died.

Defendant pleaded two separate defenses of contributory negligence by the plaintiff father: One, that in November, 1924, prior to the first diagnosis and treatment complained of, the mother had been under the care of defendant, and that the plaintiff father had been advised by him that any subsequent pregnancy of the mother, within a considerable period of time, would be extremely dangerous, and that pregnancy was caused by the negligence of the plaintiff father, and that this brought about the "ruptured extra uterine pregnancy" for which she was later treated; second, that after the diagnosis of February 25, 1925, the patient was permitted to leave the hospital upon March 2, 1925; that plaintiff had negligently failed to notify defendant immediately upon a marked change in the condition of deceased, and that such negligence contributed to her death. The appeal is from an order denying motion for new trial.

Plaintiff did not demur to the allegations of contributory negligence, but assigns as error instructions given by the court thereon, which present here the sufficiency of the allegations of contributory negligence as a defense. The first alleged contributory negligence should not have been submitted to the jury, and the instructions thereon were erroneous in so doing. The negligence, if any, in contributing to the pregnancy of deceased could in no way be a contributing cause to the damage from negligence in the treatment of the effect thereof, which is the matter complained of.

Plaintiffs contend that the second alleged ground of contributory negligence did not state a defense, and that the instructions giving it such effect were erroneous as to all the plaintiffs, and in any event erroneous as to the children, in imputing negligence of the father to them. Plaintiffs were complaining of erroneous and negligent diagnosis and treatment prior to the time of...