Ennis v. Banks

Citations

• 95 Wash. 513
• 164 P. 58
• 1917 Wash. LEXIS 824

Syllabus

<p>Appeal — Decision—-Law op the Case. Where the evidence upon the second trial is substantially the same as upon the first trial and it was then held sufficient to go to the jury, the decision on the first appeal becomes the law of the case and is conclusive.</p> <p>Physicians and Surseons — Malpractice—Instructions—Issues. In an action for malpractice in negligently causing the death of a patient, in which the only negligence complained of was the administering of milk toast and soft poached eggs, it is error to give instructions upon general negligence which would lead the jury to believe that they might consider any act of negligence or general acts outside the issues of the case.</p> <p>Same. In such a case, it is misleading to give an instruction that the jury could consider the advanced state of the profession at that time, where there was no evidence in the case that there was any advanced state of the profession at that time upon the subject in question.</p> <p>Same — Malpractice—Instructions. In an action for malpractice against an allopathic doctor in which a physician of the homeopathic school of medicine testified against him, it is misleading and error to instruct the jury that, if they should find that the defendant did not follow the established practice in a case as recognized.by doctors and followed by other surgeons in prescribing in that locality, contributing or hastening the death of the patient, then the defendant would be liable.</p> <p>Same — Malpractice — Instructions — -Issues. In an action for malpractice in causing the death of a patient due to improper treatment, it is error to give an instruction attributing the cause of the death to accident and upon the presumption following, where no accident was shown.</p> <p>Appeai — Review—Insteuctions—Exceptions. In the absence of an exception to an instruction, error therein will not be considered on appeal.</p>