Williams v. Wurdemann

• Citation: 71 Wash. 390,128 P. 639
• Court: United States State Supreme Court of Washington
• Decision Date: 21 December 1912
• Parties: WILLIAMS v. WURDEMANN et al.

128 P. 639

71 Wash. 390

WILLIAMS v. WURDEMANN et al.

Supreme Court of Washington

December 21, 1912

Department 2. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Paris A. Williams against H. A. Wurdemann and another. From a judgment for plaintiff, defendants appeal. Affirmed.

John W Roberts, of Seattle, for appellants.

Beeler & Sullivan, of Seattle, for respondent.

FULLERTON, J.

This is an appeal from a judgment rendered against the appellants for malpractice. The errors assigned and argued in the briefs are that the trial court erroneously refused to sustain the appellants' challenge to the sufficiency of the evidence and gave erroneous instructions to the jury.

The evidence was conflicting on practically all of the material issues. This court is therefore obligated to assume as true that version of it which tends to support the jury's verdict.

The appellants were physicians and surgeons specializing in the treatment of diseases of the eye, ear, nose, and throat. The respondent suffered from a ringing sensation and partial deafness in his left ear and employed the appellants to treat him for his malady. He consulted particularly with the appellant MacWhinnie, and in the course of the treatment the doctor performed a surgical operation on his nose, removing a bony or cartilaginous growth therefrom called in the record a 'spur.' The wound made by the operation bled somewhat profusely, so much so indeed that it was found necessary, in order to stop it, to remove the respondent to a hospital and pack that part of his nose surrounding the wound with absorbent cotton. The doctor first undertook to pack the nose with cotton tampons pushed in with instruments, but, finding that he could not stop the hemorrhage in this way, ran a string through the nasal channel into the mouth, and by fastening cotton tampons to the string succeeded in drawing them into the nose tight enough to accomplish his purpose. After the lapse of several hours the string on which were fastened the tampons was removed. The respondent was then given a lotion for local application, and told to return for further treatment. No time seems to have been fixed for respondent to return, and he did not call until some six days later, when he found that Dr. MacWhinnie had left the office for a visit to the Eastern states to be gone for an indefinite time. The respondent was waited upon by Dr Wurdemann, to whom he described his condition and was advised to go home and remain quiet for a time. The respondent, however, did not improve as was expected. On the contrary, his nose soon began to discharge fetid matter and some days later he consulted with another physician, who on examining the nose found a cotton tampon on one side and an adhesion on the other. The doctor treated the patient by removing the tampon, dividing the adhesion, and washing out the nose. Recovery speedily followed.

It is respondent's claim that the tampon found in his nose by the last-mentioned doctor was a part of the packing put in originally by Dr. MacWhinnie to stop the bleeding following the surgical operation and was by an oversight on his part not removed at the time of the removal of the tampons attached to the string; that this was not discovered by Dr. Wurdemann whom he consulted some days after the operation, and was the cause of the disorders following that operation. The plaintiff's evidence we think tends reasonably to support this conclusion, and, this being so, we think it was for the jury and not the court to say whether the doctors were guilty of such negligence as constituted malpractice.

It is further argued, however, in this connection, that the respondent was obligated to return to the appellants for further treatment when he discovered that he was not getting along as well as he should, and that his failure so to do was such negligence on his part as will prohibit a recovery against the appellants. But such is not the rule. It is true undoubtedly that if a patient employs a physician to treat him for a malady, and receives careful and skillful treatment at his office, but fails to return to the office for further treatment before he is discharged by the physician, and in consequence suffers an injury, he is not entitled to recover against the physicians for such injury; and it is also true that a physician's liability ceases the moment his patient dismisses or discharges him, if his treatment of the case has been proper up to that time. But these principles have no application where the physician's treatment of the case has been improper. When being improperly treated the patient is at liberty to quit at any time, and he may hold the physician liable for the injuries suffered by him because of the improper treatment, notwithstanding it is highly probable that the physician, had the patient continued his treatment, would sooner or later have discovered that his treatment was improper and would so have modified it as to effect a cure. Dashiell v. Griffith, 84 Md. 363, 35 A. 1094; Kendall v. Brown, 74 Ill. 232; Du Bois v. Decker, 130 N.Y. 325, 29 N.E. 313, 14 L. R. A. 429, 27 Am. St. Rep. 529; Sauers v. Smits, 49 Wash. 557, 95 P. 1097, 17 L. R. A. (N. S.) 1242.

We conclude therefore that the court did not err in refusing to sustain the...