Versteeg v. Mowery
| Decision Date | 15 December 1967 |
| Docket Number | No. 38138,38138 |
| Citation | 72 Wn.2d 754,435 P.2d 540 |
| Court | Washington Supreme Court |
| Parties | Margaret VERSTEEG, Appellant, v. Charles MOWERY and Jane Doe Mowery, his wife, Respondents. |
Leonard W. Schroeter, Seattle, for appellant.
Williams, Lanza, Kastner & Gibbs, Joseph J. Lanza, Seattle, for respondents.
*
This is an appeal from a judgment dismissing plaintiff's claim for the reason that she failed to establish a prima facie case of medical negligence. The prima facie case in negligence is the showing of an act or omission by the defendant which breaches a standard of care owed by him to the plaintiff, which breach is the cause, both in fact and proximately, of damage to the plaintiff. The sole question on appeal is whether plaintiff introduced proof that defendant failed to observe a standard of care owed the plaintiff.
The burden was upon the plaintiff to prove one or more of the allegations of negligence and that such negligence was the cause of her disability. It is well settled that, before a physician or surgeon may be held liable for malpractice, he must have done something in the treatment of his patient which the recognized standard of medical practice in his community forbids in such cases, or he muse have neglected to do something required by that standard. In order to sustain a judgment against a physician or surgeon, the standard of medical practice in the community must be shown, and, further, that the doctor failed to follow the methods prescribed by that standard. Negligence on the part of the physician or surgeon by reason of his departure from the recognized standard of practice must be established by medical testimony. An exception to this rule is recognized where the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. Richison v. Nunn, 57 (Wash.) 2d 1, 4, 340 P.2d 793 (1959); cert. denied, 364 U.S. 816, (81 S.Ct. 46, 5 L.Ed.2d 47) (1960); Teig v. St. John's Hospital, 63 (Wash.) 2d 369, 387 P.2d 527 (1963); Stafford v. Hunter, 66 (Wash.) 2d 269, 401 P.2d 986 (1965).
Did the plaintiff show the recognized standard of medical care and practice? The record reveals the following information.
The defendant held himself out as a specialist in plastic and reconstructive surgery in Seattle. In 1958 the plaintiff wrote him about breast augmentation surgery. She also discussed the matter with another plastic surgeon in Seattle. In 1959 she desired to have defendant perform such surgery. Defendant examined her, recommended that such surgery be performed, undertook pre-operative care and in September of that year performed the surgery. He also undertook post-operative care and treatment.
Plaintiff was hospitalized during the surgery. The surgery was accomplished by the insertion of a breast implant (prosthesis) under each of her breasts. The breast implants used by defendant were of a type developed by a plastic and reconstructive surgeon in Beverly Hills, California; Dr. Pangman. The implants came in a special container together with written instructions from Dr. Pangman concerning their use.
Following the surgery, plaintiff did not desire to stay very long in the hospital because of the expense. She went home three days after surgery with a slight fever. She said she had competent care at home. She returned from time to time to the defendant's office of dressings and treatment. During this time the incision under her left breast never completely healed. (No problems arose from the implant under the right breast.) Within 12 days an infection had developed. This caused her pain, discomfort and emotional reactions. It also caused her some loss of employment as a beautician. Because the condition did not seem to improve, and because she opposed the removal of the implant, as suggested by defendant, she later went to another physician. This physician finally did remove the implant. The present action followed.
To prove her case plaintiff offered, in addition to her own testimony, (1) the testimony of defendant (called as an adverse witness), (2) the testimony of Dr. Brown (a specialist in plastic surgery in Seattle) and (3) a deposition containing testimony of Dr. Pangman (who is described above).
Dr. Mowery testified that there was a basic standard of care with respect to prevention, diagnosis and treatment of infection. He stated that it means the patient should be healthy, in clean surroundings and be given supportive treatment after surgery. He testified that the standard was a general one but that there is a great deal of difference between doctors implementing it.
On the question of standard of care, Dr. Brown's testimony was, in essence: He testified that he was acquainted with the Pangman prostheses and that when he used them he followed Dr. Pangman's instructions religiously. He stated that it would be negligence in his office not to follow these instructions.
The trial court refused to allow the admission of Dr. Pangman's deposition because there was nothing in it which would show any standard of medical care in the Seattle area. When asked if he knew how the generally accepted practice of cosmetic surgeons in Seattle might differ from his own, Dr. Pangman replied, 'I have no idea.'
Plaintiff called only one plastic surgeon from Seattle. He stated he did not know what the standard of care for that community was; he could only testify according to his own personal standard. There are five other plastic surgeons in Seattle. Whether any of them could testify as to that community's general standard of care is not known because plaintiff did not call any of them.
Plaintiff spent most of her brief arguing instead that the...
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