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District Court of Appeal, Second District, Division 2, California.


Civ. 14093.

Decided: August 13, 1943

Anne O'Keefe and Ralph C. Curren, both of Los Angeles, for appellant. Chase, Barnes & Chase, of Los Angeles, for defendant and respondent W. S. Mortensen. William M. Rains, of Los Angeles, for defendant and respondent W. L. Mortensen.

The question for decision is whether, in an action for malpractice based upon the alleged negligence of the physicians in the treatment of injuries sustained by the plaintiff in an automobile accident, it is a complete defense that in a former suit brought by plaintiff against the negligent motorist for the injuries she sustained the latter was released when she satisfied her judgment of $15,000 for $5,753.22.

On August 18, 1940, plaintiff suffered comminuted fractures to the femur bones of both legs, with serious injuries flowing therefrom. On the following day the defendants were employed to and did render medical and surgical aid. One month thereafter plaintiff filed her action against the operator of the motor car (Ash v. Wubben, Superior Court) for damages resulting from her serious injuries received in the collision. On January 27, 1941, the case of Ash v. Wubben was tried. At the trial Dr. William L. Mortensen gave testimony concerning the medical treatment which the defendants had rendered to plaintiff. In his testimony Dr. Mortensen prognosticated that plaintiff would be disabled for some time; that there would be bowing, overlapping and shortening of her legs, and testified that corrective surgery would probably be necessary at a future time. He predicted that she would not be able to walk at all normally in less than a year from the time of the accident; that she may be left crippled; that there would be change in the position of the left femur which was not in the position that it should normally occupy; that there would be shortening of both legs, more in the left; that there would be a posterior bowing and possibility of further shortening when she put weight upon it; that if there should be no union “an open reduction would be necessary * * * a metal plate with screws into the bone * * * three months in bed.” The facts so given by the witness at plaintiff's trial against Wubben referred to her condition subsequent to all of the alleged malpractices and the condition of plaintiff to be anticipated in the future.

In the instructions to the jury in the Wubben trial the jurors were admonished that in order to determine the amount of their award they should consider not only the condition of plaintiff as shown by the evidence at the time of the trial, but likewise her condition as it would exist in the future as shown by the evidence. The Wubben trial resulted in a judgment of $15,000 entered February 1, 1941. It was fully satisfied on February 5, 1941, by the payment to plaintiff by Wubben of $5,753.22.

Thereafter on the 21st day of August, 1941, plaintiff brought this action against the physicians who had treated her, alleging that the defendants in entering upon their employment on the 12th of August, 1940, failed to exercise that degree of skill and knowledge which is ordinarily exercised by physicains and surgeons in the locality where said injuries were treated; that they carelessly treated the fractured femur bones; that they negligently failed to secure said bones in position or to place them in a cast; and that on the 26th of August, 1940, an X–ray shadowgraph showed that the bones were no longer in the proper position or in the position to which they had been placed but that the position had so altered and changed that they overlapped and were no longer in alignment or joined in the manner required for the proper recovery; that they negligently allowed the bones to remain in such improper position and made no effort to reset them properly. Upon such allegations plaintiff demanded judgment for $50,000.

Following their general denials, each of the defendants pleaded affirmatively that in the Wubben case issue was joined as to all of the elements of damage and the proximate consequence thereof, the resulting judgment, and the satisfaction thereof executed by plaintiff in that case; that by reason of such satisfaction of the Wubben judgment both defendants pleaded that they were released and discharged of all responsibility for any damages sustained by plaintiff.

Following separate trials, the findings in each case embraced substantially the allegations of the affirmative defenses and the decision thereon was that by her satisfaction of the Wubben judgment she released Wubben and his heirs, sucessors, and assigns from all claims for injuries, losses and damages resulting from her injuries which were the basis of the judgment including the losses and damages not then known or anticipated by plaintiff but which might later be developed or discovered including all the effects and consequences thereof. Judgment was accordingly entered against plaintiff whereby she took nothing but was adjudged to pay the costs.

Whether a physician accused of malpractice under such circumstances as those above related is liable has not been before the appellate courts of this state. However, it is the law that where a person sustains injuries as a result of the negligence of his tort feasor and thereupon exercises ordinary care in the selection of a physician by whom the injuries are aggravated, the aggravation is considered as an injury proximately flowing from the original tort and recovery may be had for such aggravation in the action against the original tort feasor. Dewhirst v. Leopold, 194 Cal. 424, 229 P. 30; Boa v. San Francisco–Oakland Terminal Railways, 182 Cal. 93, 187 P. 2. The intervening malpractice of a surgeon will not remove the resultant aggravation from the flow of resultant damage unless the party injured through the negligence of another fails to exercise reasonable care and diligence in the selection of a surgeon of ordinary competence and skill, that is, the skill exercised generally by surgeons of ordinary care and skill in the community or in similar communities. Dewhirst v. Leopold, supra.

Plaintiff was at liberty to sue Wubben for the damages she suffered in the automobile collision. But when she elected to sue him, her election was her decision to recover all damages resulting from his negligence and this included the aggravation to her injuries as a result of the physician's neglect. Having proceeded against Wubben, her judgment against that gentleman is a bar to her recovery against the doctors whose negligence might have aggravated the injuries received from Wubben's automobile. Evidence of plaintiff's condition subsequent to the treatment by defendants and her condition as it was anticipated in the future must be deemed to have been a part of the basis of the jury's verdict. There is no formula by which we may now determine that the jury awarded its verdict wholly for the injury she sustained at the time of the accident and nothing on account of the aggravation suffered as a result of the malpractice if any of defendants. If the verdict was to any extent based upon the anticipated future condition and upon the condition which followed the treatment by defendants it must follow that the verdict was rendered in satisfaction of the aggravation and of the future injuries to flow therefrom, as well as of the pain, suffering and other damages proximately flowing from the accident itself. Such damages included the aggravation caused by the neglect, or errors in judgment, of the attending physician. That plaintiff did release Wubben and thereby discharged her whole cause of action is altogether clear. By her recovery and satisfaction of the judgment not only was Wubben released but also it necessarily followed that these defendants as well as any other possible wrongdoers were acquitted of liability. Her cause of action having passed away with her judgment against Wubben, no one can be held liable. Smith v. Mann, 1931, 184 Minn. 485, 239 N.W. 223; Wells v. Gould, 1932, 131 Me. 192, 160 A. 30; 112 A.L.R. 553; Texas Pac. R. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918. A general release operates in rem as well as in personam.

In the Wells case a parallel situation is reported. In the note of 112 A.L.R. the general rule as screened from the majority of the cases has been followed by both the Minnesota and Maine courts. In the leading case there cited as holding to the contrary, the basis for such holding was that the negligence of the physician caused a distinctly “new, separate and unforeseen injury unrelated to the original injury.” Piedmont Hospital v. Truitt, 48 Ga.App. 232, 172 S.E. 237. Whatever be the implications arising from decisions that tend to support the claims of plaintiff, they do not serve to outweigh the effect of the established doctrine that the aggravation of an injury by a surgeon should be submitted to the jury as an element of recovery against the original tort feasor and that only one recovery may be had for the same cause. Reliance upon Smith v. Coleman, 46 Cal.App.2d 507, 116 P.2d 133, and other decisions in industrial cases is not justified. They arise under the Workmen's Compensation Act and are therefore not subject to common law rules. In proceedings before the Industrial Accident Commission the workman may not recover for all elements of damage recoverable in actions at law. Ansbach v. Department of Industrial Relations, 99 Cal.App. 677, 279 P. 224. Under the Workman's Compensation Act, the injured workman is limited to a recovery of compensation according to a schedule prescribed. He may not recover damages for all consequential injuries proximately resulting from the accident. His recovery before the Commission is confined to specific items named in the schedule. Because of this he may follow the commission's award for an industrial injury with a legal action against a physician by whose negligence in treating such industrial injury deleterious consequences may have ensued. Whether a decision with reference to a release or to a discharge is pertinent to the issue under discussion can be determined only from a comparison of the facts adjudicated in the citation. While it is true that a release will not be allowed where there was no joint liability (Wallner v. Barry, 207 Cal. 465, 279 P. 148) such holding is a far cry from that in Wells v. Gould, supra, and in Dewhirst v. Leopold, supra, whose pronouncements spell finality for plaintiff's contentions.

The judgments are affirmed.

MOORE, Presiding Justice.

McCOMB, J., concurs.

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