Creasey v. Hogan

617 P.2d 1377, 48 Or. App. 683, 1980 Ore. App. LEXIS 3537
CourtCourt of Appeals of Oregon
DecidedOctober 13, 1980
Docket77-3743, CA 14498
StatusPublished
Cited by4 cases

This text of 617 P.2d 1377 (Creasey v. Hogan) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creasey v. Hogan, 617 P.2d 1377, 48 Or. App. 683, 1980 Ore. App. LEXIS 3537 (Or. Ct. App. 1980).

Opinions

[685]*685RICHARDSON, P.J.

The defendant in this malpractice action appeals from a judgment awarding damages to plaintiff for injuries she allegedly suffered as a result of surgery performed by defendant. We reverse and remand.

Defendant is a podiatrist, whom plaintiff consulted in July, 1976, complaining of bunions on both feet. In August of that year, defendant performed surgery at the Valley Lane Hospital in Eugene to correct the problem. After the surgery, the great toe on plaintiff’s right foot was shortened, deficient in mobility, and angled downward in what was described by one of the expert witnesses as a plantar-flexion deformity. Plaintiff’s post-surgical complications affecting her left great toe included hallux varus (a condition in which the great toe drifts in the direction of the medial side of the foot), a cockup deformity, impaired motion, and displacement of the sesamoid bone at the bottom of the toe.

Plaintiff contended that these conditions were caused by defendant’s negligent performance of the surgery and by his failure to take post-operative x-rays to assure that the bones were stable and properly placed. She also contends that defendant failed to advise her of material risks of the surgery and of available alternative therapeutic procedures, and that he therefore operated without plaintiff’s informed consent.

The first of defendant’s 41 assignments of error is that the trial court erred by reading the jury a medical dictionary definition of the word "transverse,” in response to the jurors’ request during their deliberations for a definition of the term "transverse plane osteotomy.” That term was used in defendant’s operative record to describe the procedure he performed on plaintiff’s right great toe. The definition of "transverse” which the court read to the jury was "placed crosswise; situated at right angles to the long axis of a part.”

[686]*686Defendant testified that he performed an Austin bunionectomy on plaintiff’s right foot. The principal characteristic of that procedure is that the incision into the bone is in the shape of a sideways letter V. Defendant contended that this type of cut and the procedures performed incident to it have the inherent virtue of leaving the bones stable, and that it is unnecessary to take post-operative x-rays to assure proper bone position when the Austin cut is used.

However, plaintiff’s attorney stated in his closing argument to the jury:

"In these hospital records that are in evidence, you can go through them page by page. There is no mention of the Austin bunionectomy at all, no such mention. As a matter of fact, the operative report that Dr. Hogan made out doesn’t mention this Austin bunionectomy. Remember how it was drawn up here like this? I’ll tell you why I think that might be important to the defendant’s case in a moment. How did he describe it in here? He didn’t give it that way. He calls it a transverse plane osteotomy. Our experts don’t know, either. They weren’t at the operation so they don’t know what kind of cutting was done. All we can go by is what is in the medical reports here. It would be a lot easier for them to argue to you people about the impossibility of a shift in this metatarsal head if they could say look what we did, we cut this thing in such a fashion that it couldn’t move at all. That is more convincing than just cutting it in two.”

There was conflicting evidence about whether the Austin procedure has the stabilizing and other virtues defendant ascribed to it. However, there was no evidence that defendant had not performed the Austin procedure rather than some other or had not made the V-shaped incision he testified he did. The operative record did not use the words "Austin bunionectomy,” and did use the words "transverse plane osteotomy.” But nothing about the latter term or the context in which it appears can suggest — at least to laymen — that the term is inconsistent with the Austin procedure having been performed, or that "transverse plane osteotomy” describes a type of incision rather than some other aspect of the surgical [687]*687treatment. No evidence about the meaning of the term was produced by either party. Plaintiff’s closing argument provided the jury with its first suggestion that the meaning of "transverse plane osteotomy” was an issue in the case.

Against that background, defendant argues that the court’s reading of the definition of "transverse” to the jury in effect supplemented the evidence which the parties had presented regarding the nature of the procedure defendant performed. According to defendant, he was prejudiced by the reading of the definition because the jury could have inferred from it, as plaintiff’s closing argument had insinuated, that a cut "at right angles to the long axis of a part” means an incision straight across the bone rather than one which follows a V pattern. Plaintiff responds that the term "transverse plane osteotomy” was used by defendant in the operative record, which was in evidence, and that it was proper for the court to read the definition of "transverse” which, in plaintiff’s view, is "a word of ordinary meaning” and "not uniquely a medical term.”1

The parties variously rely on or seek to distinguish State v. Holmes, 17 Or App 464, 522 P2d 900 (1974), and State v. Cummings, 33 Or App 265, 576 P2d 36 (1978). Neither Holmes, Cummings, nor any other authority the parties cite or we find is entirely apposite. The issue here is not whether it was proper for a jury to have access to a dictionary but whether the trial court erred in giving the jury what amounted [688]*688to a supplemental instruction in the form of a dictionary definition. The dicta in Cummings does indicate that it is proper for trial courts to instruct jurors on the definition of words which are not "words of art.”2 At least for purposes of this case, it is more satisfactory to inquire whether the definition read by the court was evidentiary of a fact which the jury was to find.

Former ORS 17.255(1) (which was repealed by Or L, 1979, ch 284, § 199, but which was in effect at the time of trial) provided:

"In charging the jury, the court shall state to them all matters of law which it thinks necessary for their information in giving their verdict, but it shall not present the facts of the case, but shall inform the jury that they are the exclusive judges of all questions of fact.”

See also ORCP Rule 59E.

In our view, the meaning of "transverse plane osteotomy” was as much a matter for proof by the parties rather than instruction by the court as were the meanings of "Austin bunionectomy,” "V-cut,” "hallux varus,” and the many other medical terms which were involved in this case. We do not agree with plaintiff that the word "transverse” is, in this context, something other than a "uniquely medical term.” The word’s only possible relevance here is as part of the medical term "transverse plane osteotomy.” Indeed, the jury had requested that that entire term rather than the first word alone be defined by the court.

It was error to instruct the jury on the meaning of "transverse.” The error was prejudicial.

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Related

Craig v. Borcicky
557 So. 2d 1253 (Supreme Court of Alabama, 1990)
Watson v. Hockett
727 P.2d 669 (Washington Supreme Court, 1986)
Creasey v. Hogan
637 P.2d 114 (Oregon Supreme Court, 1981)
Creasey v. Hogan
617 P.2d 1377 (Court of Appeals of Oregon, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
617 P.2d 1377, 48 Or. App. 683, 1980 Ore. App. LEXIS 3537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creasey-v-hogan-orctapp-1980.