Wharton v. Warner

• Citation: 75 Wash. 470,135 P. 235
• Court: United States State Supreme Court of Washington
• Decision Date: 20 September 1913
• Parties: WHARTON et ux. v. WARNER et al.

135 P. 235

75 Wash. 470

WHARTON et ux. v. WARNER et al.

Supreme Court of Washington

September 20, 1913

Department 1. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by Logan Wharton and wife against Willis H. Warner and others for injuries alleged to have resulted from the malpractice of defendant Warner as a physician and surgeon. Verdict for plaintiff. Judgment for defendants on motion for new trial and plaintiffs appeal. Reversed as to defendant Warner, with directions to enter judgment against him for the amount of the verdict, and affirmed as to the other defendants.

Pedigo & Smith, of Walla Walla, for appellants.

Dunphy Evans & Garrecht, of Walla Walla, for respondent Warner.

John C. Hurspool, of Walla Walla, for other respondents.

GOSE J.

This is a suit to recover damages resulting to the plaintiff wife from the alleged malpractice of the defendant Willis H. Warner, a physician and surgeon. It is alleged in the complaint that the defendant corporations conducted and maintained a surgical and medical institution known as the Walla Walla Sanatorium; that they employed the defendant Warner as surgeon in charge thereof; and that the plaintiff wife employed the defendants, for a consideration, to give her medical and surgical treatment known as curettement of the uterus. It is further alleged: 'That said defendant and its agents and employés performed said surgical operation, and administered said medical treatment, and in the performance thereof made use of a certain machine known as a uterine packer; that in using said machine a spring therefrom, some 12 inches in length, became detached from said machine, and was negligently, carelessly, and unskillfully forced and packed into the uterus of plaintiff, and carelessly, negligently, and unskillfully allowed to remain therein for a period of 15 days following said operation, and by reason thereof plaintiff has had and still has constant pain at the base of the bladder and constant hemorrhage from uterus, and injury inflicted thereby has caused a tumor mass between uterus and base of bladder, and the lining membrane of uterus has become diseased by reason of this injury inflicted by said spring.' It is also alleged that in consequence of the alleged negligence she suffered great pain; that her illness was aggravated and prolonged; and that her health has been permanently impaired.

The case was tried to a jury eventuating in a verdict in favor of plaintiffs, upon which a judgment was entered. A day or two later the defendants, other than the Walla Walla Sanatorium, severally moved for a vacation of the verdict and judgment and for a judgment non obstante, and in the alternative for a new trial. The several motions for the vacation of the verdict and judgment and for a judgment in favor of the several defendants were sustained, and the several motions for a new trial were overruled, and a judgment was entered in favor of the several defendants for costs. The plaintiffs have appealed. For convenience of reference, the plaintiff wife will hereafter be called the appellant. The appeal involves the sufficiency of the evidence to support the verdict.

The case made against Dr. Warner will be first considered. It will be observed that there are two charges of negligence, one, an act of commission, the other of omission. The negligence alleged to have been committed is that Dr. Warner in performing an operation known as curettement of the uterus used a uterine packer; that a spring therefrom, about 12 inches in length, became detached, and was forced and packed into the uterus of appellant. The charge of omission is that the spring was suffered to remain in the uterus for 15 days after the operation had been performed. A uterine packer is a small, round, tubular instrument about 18 inches in length. In the process of the operation, gauze was inserted into the uterus by means of a small piston, which operates through the tube. The spring was attached to the piston near its base, and laid parallel with it. It is admitted that the respondent Warner performed the operation. The appellant testified that Dr. Thomas removed the spring 15 days after the operation; that she complained of pain to the nurses from the beginning; that the pain was continuous for three months; that 'the last week of the 15 days was the worst--before he found the spring'; and that 'it was continuous pain.' Dr. Thomas took charge of the case three or four days after the operation had been performed. The packing of gauze had then been removed. His testimony is that he found the spring 'perhaps six, eight, or ten days' after he was called to attend the appellant; that he found one end of the spring 'in the neck of the uterus, the other end was through the posterior vaginal wall into the bowel or into the rectum'; that he could not understand 'how the gauze could be removed, and leave the spring in. A thorough examination would find the spring.' Dr. Keylor testified that he never saw a uterine packer with a similar spring, and, when asked whether such a packer was then used, answered that 'he did not know.' Dr. Shaw was asked: 'Q. Those kind of packers were and are considered to be standard instruments?' He answered: 'I doubt if they are made now. I doubt if, but I am not sure. I know the ones I have bought within a few years past were not in it.' Respondent Warner testified that the operation was curettement of the uterus; that he packed the gauze in the uterus to control the hemorrhage; 'that the spring there was inside of here [evidently meaning the tube] absolutely without my knowledge, because they are not usually made that way;' that after removing the packing he examined the uterus with a vaginal speculum; and 'that there was nothing to prevent me seeing into the mouth of the uterus, and I thought there was nothing in the mouth of the uterus, because I examined in there carefully and thoroughly, which it is necessary to do, because I wanted to see that the vagina was absolutely clean, and also in case there should be some hemorrhage that I must care for before I left; so I examined the uterus with this vaginal speculum. I, myself, removed the packing from the uterus.' He further said: 'When I removed that gauze from the mouth of the uterus, I had an absolutely unobstructed view, so if any part of that spring had remained I guess it would have been exposed to view.'

Passing to the law of the case, it may be announced as one of the fundamentals of the law that negligence is never presumed, but that it must be affirmatively established by competent evidence.

It is equally well settled that, when a physician and...