Merriman v. Toothaker

Plaintiff, Harvey J. Merriman, filed suit claiming medical malpractice against the defendant-physician, Joel H. Toothaker. He appeals from a judgment of dismissal following an order of involuntary nonsuit granted at the conclusion of his case-in-chief. Our review of the testimony convinces us that an issue for the jury was presented on one of the two theories asserted.

The factual evidence was largely undisputed. On February 23, 1968, Dr. Toothaker, a specialist who limits his practice to pediatrics, was on emergency call at Centralia General Hospital. Plaintiff, age 16, was admitted to the…