The trial court sustained a challenge to the sufficiency of plaintiff's evidence as a matter of law. He appeals from a judgment dismissing his action.
April 14, 1964, plaintiff commenced this action for damages against Dr. G.H. Lawrence who, on April 19, 1961, operated upon him for appendicitis; Dr. Fred Goodill, the anesthesiologist; the Mason Clinic, a copartnership; and the
Although the appendectomy was apparently successful, plaintiff was paralyzed in both lower extremities after the operation. An epidural block had been administered. Plaintiff was in the hospital from April 19 until June 13, 1961. During this period, Dr. John Sutton Tytus, a neurologist and neurosurgeon practicing at the Mason Clinic, was called as a consultant. Plaintiff was given muscle tests and an electromyogram at the University Hospital, and a number of physical therapy treatments before his discharge from the hospital. He made three outpatient calls to the hospital after his discharge, the last on August 28, 1961.
When discharged from the hospital, plaintiff was able to use a walker, later crutches, then canes, until, at the time of trial January 5, 1966, he could walk on the level without the canes for about a block; however, he had no reflex reaction to catch himself in the event he stumbled. He has not been able to return to his job as a truck driver.
The defendants appeared, denied negligence, and pleaded a written release in full, signed by plaintiff and dated November 17, 1961, as an affirmative defense. The release recites payment to plaintiff of $5,616.
October 30, 1964, the trial court entered an order
The order further provided that if the release was set aside, 2 months were to intervene between the dates of the two trials.
The court having sustained a challenge to the sufficiency of plaintiff's evidence upon the first of the two possible trials, the issue before us on this appeal is a narrow one.
The release pleaded by defendants as an affirmative defense came into existence as follows: In October, 1961, plaintiff telephoned the hospital and asked to talk with one of its "insurance agents." The insurance adjuster met with plaintiff three times over a period of four or five weeks.
Reading the record in the favorable light required reveals that plaintiff testified that Dr. Lawrence did not tell him what was wrong with him; that plaintiff asked Dr. Lawrence about his condition "about every time he came in" but could never get an answer; that no doctor told plaintiff that he was suffering from nerve damage; that the results of the electromyogram and of the muscle test were neither shown nor explained to him; that Dr. Tytus did not explain or interpret neurological findings made by him; he was never told the results of the physical therapy. The posture of this case requires that we take these facts to be true.
Beaver v. Estate of Harris, 67 Wn.2d 621, 409 P.2d 143 (1965), upon which defendants rely, is not apposite. In Beaver the plaintiff presented his case upon the theory of mutual mistake when the release was signed. The instant case is bottomed upon fraud and breach of a fiduciary duty.
The judgment of dismissal is reversed and the cause is remanded for a new trial. Costs will abide final determination.
It is so ordered.