dissenting.
The only specification of negligence made against the defendant hospital was the failure to timely monitor the fetal heart tones or to instruct hospital personnel to do so. The hospital’s duty in this respect admittedly arose only because of the somewhat unusual circumstances of Mrs. Libbee’s pregnancy. This being the case, the alleged conduct involved professional malpractice, not ordinary negligence, and required proof >of the customary professional standard of care in such circumstances.①
The defendant could not be held liable unless the care provided in this case failed to conform to the standard of care provided by hospitals in the’ community.② There was evidence presented in this ease that Mrs. Libbee’s condition and medical history was such that it would have been customary medical practice to monitor the fetal heartbeat at least every half hour. As the majority points out, the jury could have disbelieved the hospital chart and accepted Mrs. Libbee’s *271testimony concerning the frequency of this monitoring and concluded that this practice was not followed in this case. But that evidence would be sufficient only to support a finding of malpractice on the part of the doctors; it is not enough to establish the negligence of nurse DeSylvia or her principal, The Permanente Clinic, unless it were further shown either that the nurse was directed by the attending physician to monitor with such frequency and she failed to do so, or that customary nursing procedure, in the absence of special instructions, would have been to do so.
The majority reasons that the jury could have inferred that the nurse would not have made a false entry in the record unless (1) she knew that it was customary nursing practice to monitor at least every half hour, or (2) that the doctor had given instructions to do so.
The second inference would not be permissible because plaintiff’s own pleading and evidence are directly to the contrary. This leaves us with the inference that the nurse falsified the record because she knew that it was customary to monitor every one-half hour and she wanted to make it appear that she had complied with that customary practice.
In the first place it must be noted that there is no direct evidence in this case that the hospital record was falsified and absolutely no evidence that, assuming it was, it was falsified either by a nurse or by any other person qualified to establish the customary nursing practice. Yet, avoiding this problem, the majority finds it permissible to derive evidence of the customary practice from the fact that there were other entries on the. record showing monitoring intervals of one-half *272hour. It is difficult for me to see how the record of one particular instance can be extrapolated into a customary practice in the community. The fact that the nurses monitored the heartbeat at half-hour intervals in this particular case does not tell ns what intervals the medical profession would deem necessary under the circumstances of this case.
If this reasoning is carried over into other cases charging negligent medical practice, the standard of conduct can hereafter be proved simply from defendant’s showing what was done in the particular case rather than by the testimony of doctors explaining what is the customary medical practice. Indeed, from now on there will apparently be a jury question in malpractice eases whenever there is a dispute between the parties as to the facts of the case. Thus, what I had always thought to be the crucial issue in such cases— whether the care provided meets the standard prevailing in the community — has been rendered an irrelevant consideration.
The majority opinion, starting with the permissible inference that the record was falsified and building upon that, fashions an argument for liability which strikes me as ingenious. It certainly must not have occurred to counsel because the argument was never presented either in the briefs or in oral argument.
Denecke and Bryson, JJ., concur in this opinion.For this reason, those cases cited by the majority which hold that proof of professional standards is unnecessary where gross neglect or non-medical conduct is involved are inapposite. See e.g., Annotation: Necessity of expert evidence to support action against hospital for injury to or death of patient, 40 ALR3d 515 (1971).
Wood v. Miller, 158 Or 444, 76 P2d 963 (1938),