“Even where * * * a basis of common knowledge is lacking, * * * expert testimony may provide a sufficient foundation * * *.”
How later courts described this case
- “Even where * * * a basis of common knowledge is lacking, * * * expert testimony may provide a sufficient foundation * * *.”
- the “most obvious illustration of the use of the doctrine [of res ipsa loquitur\ in medical malpractice cases is, of course, where a foreign object, such as a sponge or a needle, is left in the patient’s interior at the time of surgery”
- exclusion of two ' allegations of negligence held proper because they were merely elaborate duplications of another allegation of negligence which was submitted
- in medical malpractice action, causation can be proven indirectly, and the doctrine of res ispa loquitur can apply
Written by the judges who cited it.
Later courts went against this
Questioned on other grounds by Arrowood Indemnity Co. v. Fasching, 369 Or. 214 (2022)
240 Or 196, 214 , 400 P2d 234 (1965), questioned on other grounds by Arrowood Indemnity Co. v. Fasching, 369 Or 214 , 503 P3d 1233
The opinion
DENECKE, J.,
specially concurring.
The majority holds that part of the hospital record containing the medical history of plaintiff, as stated by her husband, is admissible. I concur, except that in my opinion its admissibility involves more than the Uniform Business Records Act. That Act is an exception to the hearsay rule and obviates the necessity of calling the physician who took and recorded the history. However, there is another hearsay,—the *237 record is a statement of what another, the husband, said. The admissibility of this second hearsay is not necessarily governed by the Act. This issue would still be present if the physician who was told the history took the stand and testified to the history as given by the husband.
In my opinion the testimony of the physician taking the history is admissible and likewise the hospital record of such history is admissible. Both constitute another exception to the hearsay rule whether the history comes from the plaintiff patient or her husband. The exception is founded upon the premise that the giving of such statements under such circumstances creates a high probability of trustworthiness.
“* * * A man goes to his physician expecting to recount all that he feels, and often he has with some care searched his consciousness to be sure that he will leave nut nothing. If his narrative of present symptoms is to be received as evidence of the facts, * * * it can only rest upon his motive to disclose the truth because his treatment will in part depend upon what he says. * * *” L. Hand, J., in Meaney v. United States, 112 F2d 538 (2d Cir 1940), 130 ALR 973, 975-976 .
This same “motive for truth” is in the husband when required to give his wife’s medical history upon her admission to a hospital.
In Malila v. Meacham, 187 Or 330 , 211 P2d 747 (1949), we permitted a dentist to testify to a dental history made to him by the plaintiff patient. (We only permitted such testimony as showing the basis of the dentist’s diagnosis and not as proof of the facts stated.) We adhered to the distinction that a history so given is only admissible if made to a dentist or physician who is seen for the purpose of treatment *238 and is not admissible if given to a physician merely qualifying to testify at trial. While we do not state the ground for such a distinction, it seems clear that in the later case the “motive for truth” is not the same as in the case of a history given as a prelude to treatment.
O’Connell and Goodwin, JJ., join in this specially concurring opinion.