Stroh v. Rhoads

• Decision Date: 11 April 1950
• Citation: 217 P.2d 245,188 Or. 563
• Parties: STROH v. RHOADS et al.
• Court: Oregon Supreme Court

217 P.2d 245

188 Or. 563

STROH v. RHOADS et al.

Supreme Court of Oregon.

April 11, 1950

Argued March 28, 1950.

L. A. Recken, of Portland, argued the cause for appellants. On the briefs were Senn, Recken & Recken, of Portland.

Maynard Wilson, of Cottage Grove, argued the cause and filed briefs for respondent.

Before LUSK, C. J and BELT, BAILEY, HAY and LATOURETTE, Justices.

LATOURETTE Justice.

This is an appeal by defendants from a judgment against them in the sum of $10,000.00 recovered by plaintiff in an action for malpractice. The defendants are osteopaths operating a hospital known as 'Rhoads Clinic & Hospital' at Eugene, Oregon, Dr. Rhoads being the owner and Dr. Overton being in his employ.

On the 10th day of June, 1947, at approximately 2:30 p. m., Mrs. Stroh, the deceased, went into defendant Rhoads' hospital for a regular check up prior to childbirth, she having been given prenatal treatment by the defendants since the 27th day of February, 1947. The evidence disloses that the baby was born at approximately 8:05 p. m., and that deceased died at approximately 11:25 p. m. on said 10th day of June, 1947.

The complaint charges the defendants with failure to exercise proper care and skill under the circumstances and contains six allegations of negligence on the part of the defendants. For the purpose of this appeal, it will be necessary to consider only Specifications 2 and 3, which are as follows: 'In failing to observe immediately or within a reasonable time after child birth, the fact that deceased's cervical artery was ruptured.' and, 'In failing to tie the ruptured cervical artery.' The complaint further alleges that the death of Blanch Stroh was due to such negligence.

The action was brought by the plaintiff as administrator of the estate of decedent for the benefit of himself and the four minor children.

At the conclusion of the trial, defendants moved for a directed verdict, and the motion was denied.

The first assignment of error is that the court erred in failing to sustain the objection of defendants to the hypothetical question propounded to Dr. Robert P. Merrick.

The hypothetical question and the objection thereto are too lengthy to quote verbatim in this opinion. The question was propounded on the events that occurred between the time the deceased entered the hospital and the time of her death. The objection to such question is based on two grounds: (1) 'it assumes facts which are not in evidence and assumes other facts which are not proven'; and, (2) 'now a lot of those things are not incorporated in this question and I submit for that reason the question is not a proper question. There is not a proper foundation laid.' The entire objection with one exception was directed to the failure of the plaintiff to place before the doctor in the hypothetical question certain matters in evidence concerning the care of deceased. It has been held many times by this court that it is not necessary to include in the hypothetical question every element of evidence, and this the defendants concede in their brief as follows: 'If the hypothetical question fairly includes enough evidence to permit the witness to form an intelligent opinion that such a question should be answered.' See Carruthers v. Phillips, 169 Or. 636, 645, 131 P.2d 193, 162 A.L.R. 1301.

Defendants, in the points and authorities of their brief on the above assignment of error, rest their case on the first ground of objection as follows: 'The question was clearly exaggerated and unwarranted by any testimony in the case, an objection to it should be sustained.'

Reverting to the question involved, there is only one claim in the objection thereto that there was an exaggeration of the facts, and that is: 'there is no evidence in this case that the vein collapsed.' In answer to this, we need only to refer to the testimony of the husband, Calvin Stroh, who testified that several attempts were made to inject blood plasma in the veins of deceased but those failed, whereupon an incision was made across the arm in order to get at the vein, but that this was unsuccessful. An incision was then made on the side of the neck in an attempt to insert the needle in the jugular vein; this also failed, and that it appeared to said Calvin Stroh that the veins were collapsed.

In defendants' brief it is claimed that plaintiff in the hypothetical question exaggerated the evidence in several particulars. None of these particulars was pointed out to the trial court in the objection to the question other than the one concerning the collapsed vein. It is held in Hamilton v Kelsey, 126 Or. 26, 40, 268 P. 750, 755, that the point of objection must be specific, and the stock objection 'not a proper foundation laid,' is too general and not proper.

There was no error in overruling the defendants' objection.

The second assignment of error is directed to the court's failure to sustain the objection of the defendants to a hypothetical question propounded to Dr. Arthur P. Martini and failure to strike the answer of such witness. The question, objection, answer of witness and motion are as follows:

'Q. Now the baby was born at approximately 8:05 and the mother taken to the ward almost immediately, about 8:10, and the physical condition of the mother is not checked by the doctors or nurses for a period of forty-five minutes. Would you say that that treatment is that of a doctor exercising that degree of skill and care ordinarily exercised in the practice of surgery in this locality under like circumstances?

'Mr. Senn: Same objection, on the ground that there is no evidence to sustain that question. The testimony was that the nurses did come in and that they notified the nurses and they came.

'The Court: There is some testimony to that effect. The question is eventually for the jury to decide.

'A. I would say no, that was not exercising good care for this reason----

'Mr. Senn: Just a minute. I don't think that's proper. That is argument. He can answer the question yes or...