## Facts

- Larry C. Neal, a minor, was injured in an automobile accident and admitted to St. Joseph Hospital in Aberdeen, Washington, under the care of Dr. M. L. Dumouchel.
- Neal was diagnosed with a fractured jaw; Dr. Dumouchel associated Dr. Walter D. Heikel, a dentist, to reduce the fracture under general anesthesia at the hospital.
- A hospital-employed nurse administered the general anesthetic; no medical doctor was present in the operating room.
- Dr. Heikel testified he lacked working knowledge of general anesthesia and left responsibility for anesthesia to the nurse.
- The surgery occurred on June 7, 1961; shortly after surgery, Neal suffered convulsive seizures in the recovery room.
- Dr. Dumouchel was absent and no medical doctor was available in the hospital until another physician, visiting for unrelated reasons, examined Neal while he was unconscious and convulsing.
- Neal did not regain consciousness for nearly a month and thereafter showed apparent brain damage.
- Neal (through a guardian ad litem) sued the physician, dentist, and hospital for malpractice and related negligence.
- The jury returned a defense verdict for all defendants; judgment was entered dismissing the action with prejudice.

## Issues

1. Whether the trial court misstated the medical/dental standard of care by limiting it to practitioners in the same or similar localities.
2. Whether a hospital is negligent as a matter of law, absent extraordinary or emergent circumstances, for permitting surgery under general anesthesia without a physician present to supervise.
3. Whether the jury should have been instructed on res ipsa loquitur given the patient’s prolonged unconsciousness and apparent brain damage following surgery under general anesthesia.
4. Whether expert hypotheticals on standard of care must be limited to the particular operation and circumstances rather than framed broadly.
5. Whether defense counsel’s appeals to local prejudice deprived the plaintiff of a fair trial.

## Decision

- The Washington Supreme Court reversed the judgment and remanded for a new trial.
- The court rejected the strict locality-based instruction and held the standard of care is that of the average practitioner in the relevant class acting under the same or similar circumstances, measured by the professional means available in readily accessible medical centers; local custom is only one factor.
- The court held that, absent extraordinary or emergent circumstances, it is negligence as a matter of law for a hospital to permit a surgical operation under general anesthesia without the presence and supervision of a medical doctor.
- The court held res ipsa loquitur was applicable and that refusal to give a res ipsa instruction was error on these facts.
- The court held hypothetical questions to experts on standard of care should be limited to the particular operation involved.
- The court condemned calculated appeals to local prejudice as improper in a jury-tried case and treated them as contributing to the unfairness of the trial.

## Legal Principles

- Medical and dental malpractice is judged by the care expected of an average practitioner in the defendant’s class acting under the same or similar circumstances, with reference to professional means available in readily accessible centers; locality practice is relevant but not controlling.
- A hospital breaches its duty of care as a matter of law (absent extraordinary or emergent circumstances) by allowing surgery under general anesthesia without physician presence and supervision.
- Res ipsa loquitur permits a jury to infer negligence from an occurrence that ordinarily does not happen without negligence; it applies when a patient undergoes general anesthesia for a jaw reduction, fails to awaken for an extended period, and emerges with apparent brain damage.
- Expert-testimony hypotheticals on standard of care should be tailored to the specific procedure and circumstances to avoid misleading the jury.
- Counsel may not seek verdicts through appeals to local prejudice; such tactics can support reversal when combined with other instructional and evidentiary errors.

## Conclusion

The court ordered a new trial because the jury was instructed under an outdated locality rule, was not allowed to consider a res ipsa inference on an unusual and severe postoperative outcome, and was exposed to improper trial tactics; it also held the hospital negligent as a matter of law for permitting general-anesthesia surgery without physician supervision in nonemergent circumstances.


Pederson v. Dumouchel, 431 P.2d 973 (Wash. 1967)