Home/Washington Supreme Court/DeNike v. Mowery

DeNike v. Mowery

418 P.2d 1010, 69 Wash. 2d 357, 1966 Wash. LEXIS 953
CourtWashington Supreme Court
DecidedSeptember 29, 1966
Docket37751
StatusPublished
Cited by39 cases

This text of 418 P.2d 1010 (DeNike v. Mowery) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeNike v. Mowery, 418 P.2d 1010, 69 Wash. 2d 357, 1966 Wash. LEXIS 953 (Wash. 1966).

Opinion

Finley, J.

This appeal precipitates a confrontation between two apparently applicable principles of tort law, and necessitates either an accommodation of the two rules or a choice of one or the other. The first principle — and the one which ultimately prevails by virtue of the decision herein — is fundamental in the sense that it relates to the function of the law of torts. It is somewhat difficult to articulate, but may be stated in the following manner:

Arising out of the various and ever-increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the persons or property of others— in short, doing all the things that constitute modern living — there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another. (Italics ours.) Wright, Introduction to the Law of Torts, 8 Camb. L. Rev. 238 (1944); quoted in Prosser, Torts 6 (3d ed. 1964).

The purpose of awarding nonpunitive, pecuniary compensation to the injured party is to repair his injury, or to make him whole again as nearly as that may be done by an award of money. McCormick, Damages, § 137 (1935). The conflicting or countervailing principle is that a release of the original tort-feasor operates in law to release the physician who negligently treats the injuries incurred in the original wrongdoing. See, e.g., Martin v. Cunningham, 93 Wash. 517, 161 Pac. 355 (1916); aff’d en banc 97 Wash. 699, 166 Pac. *359 793 (1917). Strict adherence to our prior decisions in somewhat analogous fact patterns (such as Martin v. Cunningham, supra) would very probably have dictated a decision in favor of the defendant physician herein. However, a strong sense of justice plus a realistic, rational evaluation of the facts and the pertinent principles and philosophy of modern tort law require an affirmation of the trial court’s judgment entered on the jury’s verdict for the plaintiff.

The fact pattern involved herein is relatively complicated. For ease of reference, we have outlined the facts chronologically:

October 8, 1959 to March 30, 1960:

On October 8, 1959, the plaintiff, Mr. Kenneth DeNike, was injured in an automobile accident. He sustained severe and permanent injuries, including nerve damage causing loss of sense of taste and smell; a compound comminuted fracture of the right femur, resulting in a permanent shortening of his leg; loss of sight in the left eye; a fracture of the upper jaw; a depressed fracture of the nose, and fractures through both cheek sinus with resulting depression in the central portion of his face. The plaintiff hired Dr. Charles Mowery (defendant-appellant involved in this litigation), a specialist in plastic reconstructive surgery, for treatment of his jaw and facial injuries.

Dr. Mowery commenced treatment of Mr. DeNike on October 11, 1959, by reducing the jaw and nasal fractures and attempting to reconstruct the depressed bridge of the nose. During the course of these initial efforts to restore Mr. DeNike’s face, Dr. Mowery, during a procedure performed on March 30, 1960, perforated the skin in an area over the bridge of the nose while trying to replace its basic foundation structure. This perforation never adequately healed, and later, proved to be one of the principal sources of adverse medical testimony during the course of this subsequent malpractice action.

Meanwhile, Mr. DeNike had enlisted the services of an attorney with reference to possible litigation over the original automobile accident. At the attorney’s request, Dr. Mowery wrote a letter-report, dated November 18, 1959, *360 wherein he estimated that the entire restoration procedure would involve a period of approximately eight months. He further outlined the over-all techniques he would utilize in his treatment of Mr. DeNike by stating that the procedure would consist of a

revision of the nasal bridge with implantation of a graft and infracturing of these displaced left nasal bones so as to restore the line of the nose in the midline and to reproduce the relatively straight dorsal line of this man’s nose as prior to the accident. At a subsequent procedure after this had healed probably 8 months following injury a composite graft from one of the forward external ear rims could be transferred to the right nostril rim to restore this to a more normal balance with the non-injured left side. (Italics ours.)

On February 10, 1960, Mr. DeNike commenced an action against the original tort-feasor, one Melvin L. Bean, for all of the injuries sustained in the automobile accident of October 8,1959, including the nasal, cheek, and jaw injuries for which Dr. Mowery had been retained as a specialist in reconstructive surgery. The record is clear that at the time of the commencement of suit against Melvin L. Bean Mr. DeNike was not aware — nor did he have reason to be aware — of any malpractice implications involving his treatment by Dr. Mowery.

May 5, 1960 to November 16, 1960:

During this period, Dr. Mowery performed eight separate procedures designed to repair the aforementioned perforation, repair the septum in the nose, and close all of the open wounds in the nasal area. Mr. DeNike began to have qualms about the progress of Dr. Mowery’s work, and he sought assurance from Dr. Walter Brown, a plastic surgeon, on June 1, I960, just prior to the moving of the upper right cheek flap by Dr. Mowery over the mid-line of the bridge. Dr. Brown testified at the trial that he told Mr. DeNike that “[Y]ou don’t have to be concerned. You are going to a reputable, recognized plastic surgeon, who is also a good friend of mine. And I suggest that you just let him handle it, and I am sure it will turn out all right.” (Italics ours.) *361 This visit to Dr. Brown for “outside assurance,” was of course unknown to Dr. Mowery. Mr. DeNike later testified that the horrible condition of his nose at the time was the precipitant for his solicitation of an opinion from Dr. Brown as to the quality and efficacy of Dr. Mowery’s work.

The attorneys for the defendant in the automobile litigation took a pretrial discovery deposition of Dr. Mowery on August 25, 1960. Mr. DeNike and his attorney were present at that deposition, where Dr. Mowery stated that the cartilage graft which he had previously mentioned in his letter-report of November 18, 1959, would be inserted in approximately six to eight weeks. The general tenor of his remarks about the progress of the restoration of Mr. DeNike’s face was optimistic, as demonstrated by the following excerpts:

Q Now, on the completion of these procedures, what would you — what do you hope the end or net result will be? A Well, the efforts are primarily to restore as much as possible of his appearance and facial expression as before the accident. To make this in terms of a statistical analysis is impossible.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Barton v. Department of Transportation
308 P.3d 597 (Washington Supreme Court, 2013)
Barton v. Dep't of Transp.
Washington Supreme Court, 2013
In re the Marriage of Farmer
259 P.3d 256 (Washington Supreme Court, 2011)
Farmer v. Farmer
259 P.3d 256 (Washington Supreme Court, 2011)
Ray v. Paul
563 N.W.2d 635 (Court of Appeals of Iowa, 1997)
Bank of the West v. Burlingame
895 P.2d 1367 (Court of Appeals of Oregon, 1995)
Dempere v. Nelson
886 P.2d 219 (Court of Appeals of Washington, 1994)
Pepper v. J.J. Welcome Construction Co.
871 P.2d 601 (Court of Appeals of Washington, 1994)
AKER VERDAL A/S v. Neil F. Lampson, Inc.
828 P.2d 610 (Court of Appeals of Washington, 1992)
Sansom v. Physicians Associates, Inc.
386 S.E.2d 480 (West Virginia Supreme Court, 1989)
Pacific Northwest Life Insurance Co. v. Turnbull
754 P.2d 1262 (Court of Appeals of Washington, 1988)
Borba Farms, Inc. v. Acheson
197 Cal. App. 3d 597 (California Court of Appeal, 1988)
In Re the Marriage of Johnson
634 P.2d 877 (Washington Supreme Court, 1981)
Scheideler v. H. F. Elias & Lutheran Hospital Society, Inc.
309 N.W.2d 67 (Nebraska Supreme Court, 1981)
Phennah v. Whalen
621 P.2d 1304 (Court of Appeals of Washington, 1980)
DeMaris v. Brown
621 P.2d 201 (Court of Appeals of Washington, 1980)
Lindquist v. Dengel
595 P.2d 934 (Washington Supreme Court, 1979)
Seattle-First National Bank v. Shoreline Concrete Co.
588 P.2d 1308 (Washington Supreme Court, 1978)
James S. Black & Co. v. Charron
587 P.2d 196 (Court of Appeals of Washington, 1978)
Lindquist v. Dengel
581 P.2d 177 (Court of Appeals of Washington, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
418 P.2d 1010, 69 Wash. 2d 357, 1966 Wash. LEXIS 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denike-v-mowery-wash-1966.