BRAND, J.
If we were required to determine whether there was substantial evidence in support of plaintiff’s allegation that the defendant, by its agents, undertook to diagnose the plaintiff’s condition, a serious and difficult question would be involved by reason of the written contract, which purported on its face at least to limit the undertaking of the defendant to the payment of expenses for the services of persons designated by it, and which further purported to limit the liability of the defendant to the exercise of reasonable care in designating the doctors, etc., required for the purpose of the agreement. But in the view which we have taken of the evidence, it becomes unnecessary to pass upon this question.
Assuming for the purposes of this decision that the plaintiff did present evidence sufficient to go to the jury in support of her claim that the defendant, by its agents, did undertake to diagnose plaintiff’s case, and assuming that she was not barred from such a contention by reason of the provisions of the written contract, and assuming further, but without deciding, that there was substantial evidence of negligence on the part of the defendant in failing to discover the diseased condition of her gall bladder, we will first consider whether or not the plaintiff has presented evidence sufficient to go to the jury for the purpose of proving that the plaintiff suffered damage as a proximate result of the alleged failure of the defendant to diagnose her condi
tion. To that end a review of the testimony becomes necessary.
The plaintiff testified that she was in good health until about Thanksgiving day in November 1936. Her pleading, however, alleges that on March 8, 1937, she was suffering from a chronic gall bladder condition, and Dr. Hollenbeck testified concerning gall stones which were removed from her gall bladder on June 2, 1937, as follows:
‘ ‘ Q Can you tell us anything about the time that it takes for stones of that size to develop ?
“A It would be purely speculation, but I would say years.
“Q Years?
“A
Yes.
‘ ‘ Q Could they, in your opinion, form in a period of two months ?
“A No, they could not.”
After examining plaintiff’s Exhibit 7, an X-ray taken on April 27, 1937, and which showed plaintiff’s gall bladder, Dr. Hollenbeck testified further as follows :
“Q Now, Doctor, I think you stated yesterday that the gall bladder showed a calcification or deposit of lime salts. What can you say about that process of calcification of the gall bladder, as much as you can tell from the X-ray there, as to how long that would be in the process of developing, — not any exact time but could you give, us the range over which it might be expected to develop?
“A
Well, that is a very difficult thing to state but the situation as we see it here, virtually the calcification that we see, may have occurred years ago, a number of years ago, eight, ten, fifteen years ago.
“Q But is that calcification of a gall bladder, of the walls of the gall bladder, is that a process that
takes place in a eonple of months’ time or does it take longer than that?
“A Oh, it takes longer than that, I am sure. It is gradual.
“Q Is it a very slow process, a very gradual process ?
“A Yes, very gradual.
‘
‘
Q And while it might have occurred years before this X-ray was taken, it would also have taken, in your opinion much more than a couple of months to calcify to the extent shown there ?
“A Yes, I feel definitely that it would, yes.’’
Viewing the testimony in the light most favorable to the plaintiff, it may be said that until late November 1936 she worked hard and felt and appeared well, but that unknown to herself she did have gall stones and a chronic gall bladder infection of long standing.
Beginning at Thanksgiving time 1936 plaintiff became sick. She had pain in the stomach and abdominal area. She was irritable, unable to eat, suffered from dizziness and extreme nervousness, sometimes turned white and became very weak. She vomited frequently and lost weight. She testified:
“* * * It just kept getting worse and it got to where I couldn’t eat at all * * *. Oh, I might eat some but I could expect to vomit nearly after every meal.”
She suffered intensely. She was under the care of Dr. Jones of Redmond, in the months of December 1936, and January and February 1937. For two months she was confined in the hospital at Redmond. Her condition continued progressively worse until March 7, 1937, at which time Dr. Jones sent her to the National Hospital Association clinic “to find out what was wrong.” She arrived at the clinic on Monday, March 8,
1937, and was examined over a period of four days. As a part of the examination an X-ray photograph was taken. Upon pressure in the region of the gall bladder, soreness was produced. The plaintiff’s testimony discloses this as the point of greatest soreness. Dr. Groffin, however, who was called as a witness by plaintiff, testified that the patient’s pain was localized over Mc-Burney’s point, “which we call the point right over the appendix.” At that time she was suffering from distress in the abdominal tract and “from a great deal of nervousness.”
“* * * She was not in any pain much at that time, she was just nervous and she was not under an attack of gall stones either at that time, and so, finding out this tenderness over the appendix * * * I sent her to the X-ray department to confirm this tenderness over the appendix, * *
An opaque enema was there given, and an X-ray taken which was read by Dr. Butler, who found, as testified by Dr. Groffin, that
“The point of tenderness was right over the appendix because he could see the appendix there and that also that the appendix was bulbous and somewhat poorly filled, which is the case sometimes with a chronic appendix.”
Speaking of the condition of her appendix at the time of his examination, Dr. Groffin testified:
“Her condition was not good for operation at that time. It was chronically inflamed, only in such a way as it did not show in the blood, so I advised her to wait and go back to her doctor, under observation, arid if anything became acute he would attend to it, and then, if she did not get any results to come back and see us.”
He advised the plaintiff and her husband that there was something wrong with her appendix but not to have it out. Plaintiff’s Exhibit 10 also discloses that Dr. G-offin diagnosed her condition as constipation with probable appendicitis. This diagnosis finds support in the testimony of Dr. Hollenbeck, to whom the X-ray taken on March 10 at the defendant’s clinic was exhibited. Upon examination of the film, Dr. Hollenbeck testified:
“* # * It shows here (indicating) what possibly one might take to be an appendix which, if so, has a very small lumen and shows several areas of constriction in the lumen.
“* * * Then if the appendix has filled here (indicating), of course, we can tell that this appendix has a very small, rather contracted lumen or inner surface, and that there are some constricted areas in this lumen. Here (indicating) is a narrowed area here, near the base of the appendix; a little larger here (indicating), and then on top it is even more contracted.”
Following March 11, the last day of plaintiff’s examination in defendant’s office, the order of events becomes important. On March 12, she returned to Redmond at which time and place she again consulted Dr. Jones. Upon arrival in Redmond she was “worse all the time. ’ ’ Her husband testified that she was
“* * * Complaining terribly of her stomach and side, so Dr. Jones said that if it was her appendix that was the matter, that she must be operated on.”
Plaintiff herself testified that Dr. Jones said:
“Don’t take her out home because she will die before you get her back. If you do you will get her out there and you can’t get her in in time to have those out; now, you have it out.”
She continued :
“And I said I wanted to know whether it looked like I could go for another few days because I was very tired, and he told Mr. Horn not to let me go, and so they kept me there. ’ ’
As a result, her appendix was removed on March 13, the second day after leaving the defendant’s clinic. Plaintiff introduced in evidence, as Exhibit 6, a report dated March 30,1937, signed by Dr. Raymond F. Jones, which contained, among other things, the following information, under the heading of “Nature and Extent of Case (Information must be complete and definite) ”:
“Chronic appendicitis and spastic colitis. March 13th pt operated for an acute attack of appendicitis. * * * This lady on March 8th was referred to the Portland Office for further examination. Pt returned from Portland March 12th, 1937 and had an acute attack of appendicitis. She was again put in the Redmond Hospital and operated March 13th, 1937 and remained in hospital until March 24. ’ ’
The foregoing evidence concerning the condition of the appendix is undisputed.
Following the removal of plaintiff’s appendix, her condition became worse. She remained in the hospital for two weeks, then returned to her home at Sisters, Oregon, where her symptoms remained the same. Side and stomach were painful, and vomiting continued. She remained at Sisters only for a day or two, then consulted Dr. Vandevert at Bend and was placed in the St. Charles hospital for about a week. While there, she continued to get worse, and Dr. Vandevert sent her to Dr. Sturdevant, of Portland, a specialist in neurology
and psychiatry. During this period her mental condition got very bad.
“She seemed to be suffering intensely and it seemed like nobody could pacify her or console her in any way. She just was almost raging.”
Dr. Sturdevant examined her and placed her in the Emanuel hospital for two or three weeks, after which she was placed in the Grard Convalescent Home. During this period plaintiff complained of dizzy spells, pain in the stomach, “hot feelings” and constipation. Because of plaintiff’s gastro-intestinal complaints, Dr. Sturdevant called in Dr. Hollenbeck, a specialist in diseases of the stomach and intestines. The gastroenterologist
e t
* * Felt that he found pathology and that she had had an operation sometime before, and he thought the thing to do was to watch it and see what happened.”
Subsequently, Dr. Sturdevant saw Dr. Vandevert in Bend, and after conference concluded that it would be advisable to go ahead and remove whatever pathology was in evidence. The pathology discovered by Dr. Hollenbeck was first disclosed by an X-ray taken on April 27, which showed a calcified gall bladder and what probably were gall stones. The X-ray is in evidence as Exhibit 7 and contains evidence supporting the diagnosis. She was again in the Emanuel hospital in0Portland in May 1987. On June 2, 1937, at Bend, Oregon, Dr. Vandevert removed her gall bladder and gall stones of large size, which are in evidence. This operation occurred twelve weeks after the plaintiff left the defendant’s clinic and five weeks after the taking of the X-ray which first disclosed the gall stones. There is testimony that the condition of the plaintiff was just about as bad during the year after the gall
stone operation as it had been before, bnt there was also evidence of some gradual improvement. She remained in the hospital twelve days after the gall stone operation. She was at the Emanuel hospital from August 1987 until October 1937. She returned to the hospital in November and remained until January 1938, when she returned to her home, resumed work and improved.
Between March 1937 and December 1939 the record discloses such a variety of ailments as is seldom found in a single individual. Space permits only that they be here catalogued. Concerning his findings prior to the gall bladder operation, Dr. Sturdevant testified:
“Well, from my point of view, from the psychiatric point of view, I felt that she represented an over reactivity to her symptoms, that is, I thought she had, — that they were making her weaker, and she had more symptoms than anything that you could demonstrate would justify. It is a thing that we call a neurasthenic trend, which is a neurasthenic type of illness. In my report to a doctor at that time I explained that this thing may be on the basis of ovarian deficiency and menopausal changes, and I also mentioned the fact that she had pathology in the gall bladder and that thing might ultimately have to be cared for * *
After the gall bladder had been removed, her stomach continued troubling her, and vomiting also continued for some time.
She was sent to Drs. Belknap and Hendershott, eye specialists, Dr. Fixott, dental expert, Dr. Jones, tonsil expert, Dr. Keane, stomach specialist. She was in the Emanuel hospital from August to October 1937, and again from November 27, 1937, to January 7, 1938. In ■
November 1937, a basal metabolism test caused Dr. Sturdevant to conclude that,
“Possibly one of the factors in continuation of the complaints of weakness and inability to get started, was a deficient thyroid function, and she was given thyroid at that time.”
In December 1937, she was given a gastroscopio examination in which the physicians looked at the stomach wall itself. She had an “irritable bowel” or colitis. Dr. Sturdevant testified that many of her conditions could be explained on the basis of ovarian deficiency and menopausal changes. She returned to Dr. Sturdevant every few weeks in 1938. Early in that year, she suffered from sore throat, and infected tonsils were removed. She had developed neuritis. An X-ray disclosed some arthritis in the cervical spine, and she was referred to another doctor for diathermy. Her teeth, jaws and sinuses were X-rayed. One doctor suspected a cyst in the jawbone. Dr. Sturdevant testified:
“And then again the last time I saw her in the hospital was on October 26, 1938, at which time she came here and felt she needed to go into the hospital. She was tired and exhausted and had many of these vague and different complaints. Subsequent to this time and all through this time I saw her in the office. She was given things in an attempt to control her what was felt to be an irritable bowel; she was given thyroid. She was given ovarian substances because we felt that we were able to control symptoms which seemed to be related to the menopause with these ovarian substances and thyroid.”
In October 1938, she had not fully recovered. On December 12, 1938, she began consulting Dr. Berger and continued under his treatment until 1940.
By way of summary, plaintiff’s evidence discloses that she was in serious condition physically and in her nervous system and mind prior to her examination at defendant’s clinic. There was definite pathology in several areas. Among many indicated ailments were those which related to gall bladder and to appendix. Much of plaintiff’s evidence is directed toward proving that her diseased gall bladder was the cause or at least a contributing cause of the sickness and suffering, physical and mental, which was endured by plaintiff after March 11, 1937. There is substantial evidence that plaintiff’s gall bladder affliction was a contributing cause of subsequent illness. If the evidence had shown that the defendant had negligently caused the plaintiff to have a diseased gall bladder instead of merely showing the failure to discover a pre-existing condition, it may be that the evidence would have presented a jury question, under the law as approved in
Merriam v. Hamilton,
64 Or. 476, at p. 481, 130 P. 406 (1913):
“Where there are two or more possible causes of an injury for one or more of which the defendant is not responsible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as much as the other, the plaintiff cannot recover.”
Even under such a hypothetical situation, a high degree of speculation would have been involved in attempting to estimate what part of her subsequent ailments were the proximate result of a diseased gall bladder, and what part resulted from her many other
afflictions. This is especially true in view of the testimony of plaintiff’s witness, Dr. Sturdevant, as follows:
“Doctor, on all these conditions that you found there, no doctor could tell which one of them caused the condition of which she complained, could he ?
“A I don’t think that you can say any one thing here. I think you have to take a pretty general look at a situation of this kind in order to properly evaluate it.
“Q You couldn’t give them a proper evaluation as one against the other, or say that this caused it 'or that caused it?
“A Well, I don’t think that you are doing justice in so doing.”
But the defendant did not cause the diseased gall bladder. The plaintiff merely alleges that defendant failed to discover it. In the present state of the record, the evidence of a calcified gall bladder containing stones which probably formed gradually over a period of years and which condition contributed to her distress after March 1937, becomes an embarrassment and not an aid to the plaintiff’s case, for that evidence of necessity adds a further speculative element to the problem which the plaintiff says should have been submitted to the jury. Not only would the jury have been required to segregate the harm suffered by reason of the diseased gall bladder from the harm resulting from the plaintiff’s other multiple afflictions, but, having done so, it would still have to separate the harm which flowed from the diseased gall bladder and for which the defendant was in no way responsible from the alleged harm which flowed merely from the defendant’s failure to discover the diseased gall bladder and the consequent delay in having it out. This would present a type of hyper-speculation utterly beyond the normal function of a jury.
The alleged acts and omissions of the defendant upon which the plaintiff relies occurred between the 8th and the 11th days of March 1937, both inclusive. In considering whether defendant’s conduct was the proximate cause of harm to the plaintiff, the specific allegations of the complaint concerning negligence, proximate cause and damage must be considered, for it is only by presenting evidence of some harm which the complaint asserts to have been proximately caused by defendant’s negligence that nonsuit may be avoided.
The alleged negligence is the failure to diagnose and advise plaintiff concerning her physical condition and particularly concerning her diseased gall bladder. It is to this failure therefore that the chain of proximate causation must be linked. Unlike cases in which affirmative injury is done in the very course of operating upon a patient, the mere failure here to diagnose and advise, in and of itself, caused no damage. Eesulting damage could be made to appear only by showing other circumstances which rendered the failure harmful. The plaintiff, in recognition of this fact, was required to and did plead that the undiscovered chronic gall bladder condition was one “for which immediate medical and surgical treatment was indicated. ’ ’ The next step was to plead that the immediate treatment indicated as necessary would have been administered if the condition had been discovered. This, also, the plaintiff alleged in substance by pleading that, “Plaintiff, being ignorant of the nature of said condition, did not
at that time
obtain any medical or surgical treatment for the same.” (Italics ours.) The last necessary element in the chain of causation is that the absence of medical or surgical treatment at that time resulted in damage which would not have occurred if the treatment had been administered. The plaintiff alleges that harm oc
curred as a result of the nondiscovery of the gall bladder condition, but that allegation can only be true if the nondiscovery resulted in the alleged nontreatment. Turning from the pleading to the proof, we find that the gall bladder operation was performed three months after the defendant’s alleged negligence, so the evidence required for the raising of a jury question was, first: evidence of the negligent nondiscovery of the gall bladder condition; second: the necessity for medical and surgical treatment at that time; third: that by reason of the nondiscovery the treatment was not administered at that time and not for three months thereafter, or in other words that the treatment would have been then administered but for the nondiscovery; fourth: that the delay of three months resulted in harm or damage which would not have occurred if there had been no delay, or in other words that the treatment, if administered at the time of the negligence, would have reduced the afflictions from which she actually suffered.
In the Restatement of the Law of Torts by the American Law Institute, it is said:
“ (1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial factor in bringing about harm to another if it would have been sustained even if the actor had not been negligent.
“Comment on Subsection (1):
a. If, without the actor’s negligent conduct, the other would have sustained harm, the same in character and extent as that which he received, the actor’s conduct, except in the situation dealt with in Subsection (2), not being even its necessary antecedent, is not a substantial factor in bringing it about.
b. The statement in this Subsection is most frequently, although not exclusively, applicable where
the actor’s tortious conduct consists in a failure to take some precautions which are required for the protection of another’s person or land or chattels.” Restatement of the Law of Torts, Yol. 2, § 432.
The exception to this rule, which is referred to in the text, relates to cases in which “two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part”, and where “each of itself is sufficient to bring about harm to another.” That exception is not applicable to the case at bar, for the defendant’s negligence was not
actively
operating, and defendant’s negligence in failing to diagnose and advise is not “of itself sufficient to bring about harm to the plaintiff. ’ ’ It must be borne in mind that there is no allegation in plaintiff’s complaint that the plaintiff went to defendant for any treatment or operation or that the defendant ever undertook to treat her or operate upon her or that the defendant ever administered any treatment, whether proper or improper, to her.
Applying to plaintiff’s ease the four criteria above outlined and still assuming (1) that defendant negligently failed to discover and advise plaintiff of her gall bladder condition, we next inquire (2) if there was evidence to support the allegation that immediate medical and surgical treatment was indicated, in the sense of being then advisable or necessary. The evidence adduced by the plaintiff not only fails to support that allegation, but it affirmatively discloses the contrary. There is no evidence concerning the nature of any
medical
treatment used or that should have been used. No witness, expert or lay, testified that immediate removal of the gall bladder was necessary or advisable at that time. The mere discovery of a diseased
gall bladder, if made, would not in itself carry an inference that an immediate operation is necessary. If immediate operation was inadvisable, then the omission thereof could produce no evidence of damage caused by the omission. The evidence concerning the condition of plaintiff’s appendix affirmatively discloses the inadvisability of an immediate gall bladder operation. The appendical condition discovered by Dr. Goffin at the clinic in March is verified by the other evidence which we have reviewed. There is no claim that the defendant caused the appendectomy to be performed, much less that such operation was improper or unnecessary. Dr. Gof'fin did not advise it. He testified in substance that from the symptoms displayed by the plaintiff,
“There were several things could happen: One is a renal colic probably and the other would be a chronic appendix and the other would be gall stones.”
He testified further that he had that in mind and added:
“As a result of my examination I found the woman suffering more from a chronic appendical trouble than any other condition in her body, and also very nervous. Now, we know, as physicians, that the treatment of a condition like the gall bladder or gall stones and the appendix are diametrically opposed to each other. One will kill rather than cure. For instance, if this woman was given opium and purgative to get rid of her gall stones, and she had at the same time had a chronic appendicitis that should develop, probably actually she would have died, probably of peritonitis. So the thing to do at that time was to take care of the appendix and get that out of the way before anything else could be done. * * * Her condition was not good for operation
then because at that time it was chronically inflamed, only in such a way as did not show in the blood. So I advised her to wait and go back to her doctor under observation, and if anything became acute he would attend to it, and then if she didn’t get any results to come back and see us. ’ ’
It was Dr. Jones in Kedmond to whom she was referred who found her suffering from an acute attack of appendicitis and who insisted upon an immediate operation, without which, he warned, she would die. That operation occurred two days after she left the defendant’s clinic. Since there is no allegation that the defendant negligently or otherwise caused the appendectomy, it follows that that operation was merely a circumstance having an important bearing upon the advisability of an immediate second operation for gall stones. There is not a syllable of evidence to the effect that if the fact of the gall bladder had been discovered on March 11, an operation for the removal thereof should have been performed on the 12th. The appendix was removed on the 13th.
Dr. Sturdevant testified that Dr. Hollenbeck, after discovering the gall stones on April 27, recommended that the operation be postponed and that she be treated conservatively and that ultimately it would have to be done. Concerning the suggested necessity of an immediate operation for gall stones, Dr. Sturdevant, speaking of himself and Dr. Hollenbeck, said:
“Well, she had had some surgery not long before and we were hoping that she might improve by making an outside adjustment again and by the management that we had her on, by her bowel management and one thing and another, we could get rid of these symptoms. Even though we had evidence in X-ray of actual pathology, we thought that method or that procedure should be followed before
more radical surgical procedure should have followed, followed through on.”
It is true that one of several reasons given by Dr. Hollenbeck for delay in removal of the gall bladder even after April 1937 Avas the fact that she had recently had her appendix removed, but there is no evidence that the appendix Avould not or should not have been first removed on March 13 even if the diseased gall bladder had been discovered on March 11. We conclude that the plaintiff has failed to show that either immediate or approximately immediate surgery was required at the time of the examination at the defendant’s clinic.
We also find (3) a failure of any proof that the gall bladder would have been removed either at or soon after the time the plaintiff left the clinic even if the pathology had been there discovered. The evidence which we have just reviewed indicates that it would not. But further, plaintiff did not testify that she Avould have submitted to an immediate operation for the removal of the gall bladder even if defendant had diagnosed that condition and informed her of it, nor did anyone else so testify. At this point, it must be recalled that the complaint contains no charge that the defendant undertook to operate or failed to operate, but only charges a failure to diagnose and advise. Plaintiff’s case rests upon the assumption, unsupported by evidence, that the plaintiff, if informed of her condition and of the necessity of an immediate operation, would have caused someone to perform it. The evidence discloses that the plaintiff was suffering in mind as well as in body and was shortly thereafter under the care of a psychiatrist. Concerning the occasion when she was in the hospital at Redmond on the night of
March 12 and after Dr. Jones had given warning that if she went home she would die before she could get back, plaintiff testified:
“Well, Dr. Jones had a patient in there that night that was, — he was with until 3:00 o’clock in the morning, and it was such a commotion that I couldn’t get to sleep, and at 3:00 o’clock I went out, and I just decided that if he had been up all night that I didn’t really want him to operate on me in the morning, so I just walked out and went down to where my husband was.
“Q You walked out of the hospital and where did you go?
“A Down to the hotel where my husband was.
“Q Did you go back the next morning for the operation?
“A Yes, Dr. Jones said he would have, — he called up and he said he would have the state cops after me if I wasn’t back there right away.”
Such testimony concerning the appendectomy, instead of supporting her claim that an immediate operation for gall stones would have been performed, tends to indicate that the time at which she might have submitted to an operation is at best a matter of pure speculation.
The evidence fails (4) to show that the alleged delay of three months in removal of the gall bladder resulted in harm or damage which would not have occurred if there had been no delay. Even if we ignore the hiatuses in the chain of causation already noted, the most that could be claimed would be that the defendant would be responsible for any damage caused by the delay in discovering the pathology of the gall bladder. That period is not three months, but only from March 11 to April 27, when Dr. Hollenbeck discovered the condition.
One definite attempt was made by the plaintiff to introduce expert evidence of injury to the plaintiff by reason of the alleged delay in operating, alleged to have been caused by the failure of the defendant to discover the gall bladder condition. Counsel for the plaintiff in a hypothetical question addressed to Dr. Alan Welch Smith, asked the doctor to assume that reasonable care on the part of the defendant would have discovered the gall bladder condition about March 8, 1937. Counsel then stated:
“* * * And my question is, what injury, in your opinion, was done to the plaintiff in failing to discover that gall bladder condition until April 27, 1937, and the failure to operate prior to that time?”
In the first place, the question could present no evidence which could be properly considered by a jury because it included the alleged failure to operate as well as the alleged failure to discover. No question of failure to operate is presented by the pleadings. However, the only answer given by Dr. Smith to the hypothetical question was as follows:
“That is a very hard question to answer positively yes or positively no. Cases of that kind are dependent altogether upon the amount of disorder or of pressure symptoms, interference, and the age of the patient.”
The doctor added:
“* * * You can have some gall stones and never be conscious of them until some interference, * * *.”
Counsel pressed the matter further, and the court ultimately asked the witness the following question:
«t
» * # . Could you express an opinion as to the extent or nature of injury that this lady had suf
fered over a period of six weeks by reason of the continued presence in her gall bladder of these gall stones?
“A I think from a theoretical standpoint it is practically impossible to say, but from a practical standpoint these doctors that had been attending her would know whether there was any interference with the bile passing, he would know in what condition she was in and whether it did interfere with her. ’ ’
The foregoing is the only evidence directed to the specific question of the effect, if any, of the delay in the discovery of the pathology in, or in the removal of plaintiff’s gall bladder. That testimony falls short of being substantial evidence that the alleged negligence of the defendant corporation, if any, in failing to diagnose and advise the plaintiff was the proximate cause of any injury to her.
Counsel for the plaintiff cite the case of
Woods v. Wikstrom,
67 Or. 581, 135 P. 192, (1913), as holding that a nonsuit cannot be granted unless there is no evidence to support a verdict. The rule in this jurisdiction is now firmly established that if there is no substantial evidence tending to establish any one of the essential elements, a cause of action should not be submitted to the jury. The controversy between the substantial evidence and the scintilla rule must be deemed to be finally put at rest.
Bogart v. Cohen-Anderson Motor Co., Inc.,
164 Or. 233, 98 P. (2d) 720 (1940);
Hisey v. State Ind. Acc. Com.,
163 Or. 696, 99 P. (2d) 475, (1940);
Ylvich v. Kalafate,
162 Or. 365, 92 P. (2d) 178 (1939);
Vale v. State Ind. Acc. Com.,
160 Or. 569, 86 P. (2d) 956
(1939); Holland v. Eugene Hospital,
127 Or. 256, 270 P. (2d) 784 (1928);
Hamilton v. Kelsey,
126 Or. 26, 268 P. 750 (1928).
Where the alleged negligence of the defendant consisted of physical non-feasance, that is, where the defendant did no physical act which affected plaintiff’s condition, and the negligence, if any, was the failure to diagnose and advise, it is not sufficient for a plaintiff to show subsequent ailments and rest his case upon the specious doctrine of
post hoc ergo propter hoc.
One must go further and show that competent action would have been substituted for negligent inaction, and that there was a reasonable probability that the subsequent ailments would have been less if the substitution had been made.
Uncertainty as to the amount of damages will not always prevent recovery, but where the causal connection between the negligent failure of a defendant and subsequent ailments of a plaintiff is left to mere speculation, a nonsuit is required. Our conclusion is supported by the following authorities:
Giusti v. Weston Co.,
165 Or. 525 at p. 534, 108 P. (2d) 1010 (1941);
McKay v. State Ind. Acc. Com.,
161 Or. 191, 87 P. (2d) 202 (1939);
Vale v. State Ind. Acc. Com.
(supra);
Chapman v. General Petroleum Corporation,
152 Or. 147, 52 P. (2d) 190 (1935);
Doumitt v. Diemer,
144 Or. 36, 23 P. (2d) 918 (1933);
Blanchard v. Makinster,
137 Or. 58, 290 P. 1098, 1 P. (2d) 583;
Lippold v. Kidd,
126 Or. 160, 269 P. 210, 59 A. L. R. 875 (1928);
Spain v. O. W. R. N.,
78 Or. 355, 153 P. 470, Ann. Cas. 1917E, 1104 (1915).
The plaintiff has supported his contention on the issue of proximate cause by the citation of two cases:
Merriam v. Hamilton
(supra) from which we have quoted with approval. The rule stated in that case is not inconsistent with our conclusions here. The other case cited by the plaintiff is
Coffey v. Northwestern Hospital Association,
96 Or. 100, 183 P. 762, 189 P. 407
(1920). That case was an action for breach of a contract to furnish plaintiff
medical and surgical services in case of illness.
The complaint alleged that plaintiff was suffering from sickness which required operative treatment which the defendant had contracted to give, but refused to administer. Upon rehearing, this court observed that when at a later time she obtained medical assistance she was speedily relieved of much of her pain and was substantially cured of her trouble. The court said: These facts were evidence from which a jury might infer and almost necessarily would infer that a prompt compliance by the association with the request of plaintiff for treatment would have saved her unnecessary suffering. It was held that the question of proximate cause was properly submitted to the jury. The court also said:
“It may be conceded, for the purposes of this case, that in the absence of any evidence tending to show that plaintiff’s sufferings were prolonged by defendant’s breach of its contract, she would not be permitted to recover for physical pain resulting as a necessary consequence of the disease, irrespective of such breach. In other words, if plaintiff suffered to no greater extent than she would, had defendant promptly treated her, then she can recover nothing for such physical pain. But that is not this case.”
That was a case in which the defendant had an immediate duty to perform physical acts of surgery and which if performed would have relieved the plaintiff of suffering. The identical elements which were found to be present in the Coffey case are wholly lacking in the case at bar for the reasons which we have indicated.
Motion for nonsuit was properly granted.