Anita T. Owens v. Raymond L. White

Appellant, plaintiff below, sought damages for alleged medical malpractice against three physicians, Popma, Mc-Carter, and White, and against St. Luke’s Hospital, with which McCarter was associated. From an adverse judgment she appeals.

Appellant consulted Popma in August, 1951, complaining of a lump in her left breast. Popma advised her that a biopsy should be performed and furnished her with a list of three surgeons, including defendant White. After making inquiry about the recommended physicians, she selected White. The biopsy, which consisted of the removal of the suspect tissue by White and a microscopic examination thereof by McCarter, pathologist for the hospital, led to the conclusion that the lump in appellant’s breast was a malignant cancerous growth. Dr. White thereupon advised appellant that a radical mastectomy, removal of the breast and surrounding tissue, should be done. Surgery was performed by White on September 1, 1951. Shortly afterward, on the advice of Popma and White, appellant underwent a series of treatments in which her chest and ovaries were radiated to prevent reactivation of the assumed malignancy. This brought on the menopause at age 30. Plaintiff’s…

(dissenting).

I respectfully dissent.

I will attempt to briefly summarize my reasons therefor. This court stated in the first appeal (Owens v. White, 9 Cir., 342 F.2d 817 at 819 ) as follows:

My examination of the Chemung case convinces me that this case is not authority for the above statement. Chemung was concerned with two things: (1) Whether the court abused its discretion in refusing to permit the filing of an amended complaint, and (2) whether it was proper to grant a judgment on the pleadings in favor of the defendant where the defendant’s answer had set up a defense of the bar of the statute of limitations. The court held that it was not an abuse of discretion to refuse to permit the amendment to the complaint but that it was error to grant judgment on the pleadings, because “the facts constituting that bar (of the statute of limitations) must be proven the same as any other facts of the case.” (p. 228). That the special defense of the statute of limitations can be tried by a jury is indicated in the discussion in Calvin v. Thayer, 150 Cal.App.2d 610 , 310 P.2d 59 .

Upon the first appeal this court pointed out that the Idaho court in the Billings case had invoked the…

380 F.2d 310 Anita T. OWENS, Appellant, v. Raymond L. WHITE et al., Appellees. No. 20585. United States Court of Appeals Ninth Circuit. June 30, 1967. Rehearing Denied August 23, 1967. COPYRIGHT MATERIAL OMITTED Melvin M. Belli, Frederick A. Cone, San Francisco, Cal., Vernon K. Smith, Boise, Idaho, Belli, Ashe, Gerry & Ellison, San Francisco, Cal., for appellant. Eugene Thomas, Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for appellee, St. Luke's Hospital. J. F. Martin, Boise, Idaho, for other appellees. Before HAMLIN, KOELSCH, and ELY, Circuit Judges. ELY, Circuit Judge: 1 Appellant, plaintiff below, sought damages for alleged medical malpractice against three physicians, Popma, McCarter, and White, and against St. Luke's Hospital, with which McCarter was associated. From an adverse judgment she appeals. 2 Appellant consulted Popma in August, 1951, complaining of a lump in her left breast. Popma advised her that a biopsy should be performed and furnished her with a list of three surgeons, including defendant White. After making inquiry about the recommended physicians, she selected White. The biopsy, which consisted of the removal of the suspect tissue by White and a…