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District Court of Appeal, Fourth District, California.


Civ. 2987.

Decided: January 22, 1943

Hahn, Graf & Ross, of Los Angeles, for appellant. Fred O. Reed, Richard L. Kirtland, and Henry E. Kappler, all of Los Angeles, for respondent.

This is an appeal from a judgment in a malpractice action, rendered after the trial judge had instructed the jury to return a verdict for defendant.

Plaintiff employed defendant, a physician and surgeon, to treat her sprained right ankle. Defendant prescribed diathermy and her ankle was burned during this treatment.

The treatment occurred in the city of Riverside. Plaintiff introduced no evidence showing the standards of good practice prevailing in that neighborhood in such cases and offered no evidence tending to show that the treatment given and the methods used by defendant were not in accordance with the requirements of good practice in the medical profession there. The only evidence to support her case was the fact of the burn during the diathermy treatment. She relies solely upon the doctrine of res ipsa loquitur. She states that the two questions to be decided here are: Under the circumstances here, is expert medical testimony essential to her case, and, is the doctrine of res ipsa loquitur applicable?

The facts, except the extent of the burn and the extent of her recovery from it, are not in serious dispute. About twenty years prior to the treatment given in this case, she had broken her right ankle and some signs of enlargement and traumatic arthritis were observed by physicians examining X–rays taken of it. She sprained this ankle in June 1939, and suffered a resprain on July 25, 1939. She went to defendant for treatment on July 26, 1939. He prescribed diathermy for the injury. Her shoe and stocking were removed and she was placed in a recumbent position on a bed. The defendant told the nurse, who was experienced and trained, to give her a diathermy treatment on the ankle at 3,000 milliamperes for twenty minutes. The nurse placed folded towels on both sides of the ankle against which two electrodes rested. These were connected with the diathermy machine by wires and were held in position by small sand bags. There was nothing to prevent plaintiff from removing her ankle from contact with the electrodes if the heat became painful. Heat was caused by the resistance furnished by the ankle to the short wave current passing through it. There was a call bell on a stand adjoining the head of the bed on which plaintiff was placed.

After the nurse had adjusted the electrodes she set the machine at 3,000 milliamperes for twenty minutes and left the room. Defendant had left the room a few minutes before and had gone to an adjoining office. After the lapse of about eight minutes plaintiff called that she was too hot, was burning up, but did not remove her ankle from the contrivance. Defendant reentered the room immediately and turned off the machine. Two trained nurses came to his assistance. There was a burned area on the inside of the ankle about the size of a half dollar or a dollar. Defendant treated the burn for a considerable time.

The diathermy machine had increased from 3,000 to 3,500 milliamperes during the treatment. There is undisputed evidence that this is a common characteristic of such machines. It had been in constant use for about two years and no other patient had suffered a burn from it either before or after this occurrence. Other patients had been treated that same day.

There is undisputed evidence that there is no way of determining in advance of a treatment the degree of tolerance of patients to this heat or whether they are hypersensitive to diathermy heat. There is also uncontradicted evidence that generally patients can tolerate diathermy heat from 3,000 up to 4,000 milliamperes for twenty minutes and that some can take up to 4,500 milliamperes for that time without any bad results.

Defendant introduced evidence from physicians using diathermy treatments in Riverside, showing the treatment given was proper for a sprained ankle and was properly administered in accordance with the best practice of the medical profession prevailing in the neighborhood of Riverside; that there was no departure from this standard of good practice in the treatment given plaintiff. This evidence stands uncontradicted.

There was no special contract between plaintiff and defendant concerning the treatment to be given and the degree of success to be achieved from it. Therefore, plaintiff must rely on the contract which the law implies when a patient presents herself for treatment and the physician accepts the patient. It is thoroughly settled in California that under such an implied contract the physician does not guarantee the success of the treatment but only represents that he possesses the ordinary training and skill possessed by physicians and surgeons of good standing practicing in the same or similar communities and that he will employ such training, care and skill in the treatment of the patient. Patterson v. Marcus, 203 Cal. 550, 265 P. 222; Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654; Houghton v. Dickson, 29 Cal.App. 321, 155 P. 128; Priestley v. Stafford, 30 Cal.App. 523, 158 P. 776; McLennan v. Holder, 1 Cal.App.2d 305, 36 P.2d 448; McNamara v. Emmons, 36 Cal.App.2d 199, 97 P.2d 503.

As a general rule, it is thoroughly settled in California that, as both the standards of good practice by physicians and surgeons in a given community and the degree of skill employed by a physician or surgeon practicing in such community, as applied to and used in a given case, are solely within the knowledge of physicians and surgeons, the testimony of experts is indispensable to establish such standards of good practice and any departure therefrom by a physician or surgeon accused of malpractice. See Callahan v. Hahnemann Hospital, 1 Cal.2d 447, 35 P.2d 536; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642; Patterson v. Marcus, supra; Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695; Rising v. Veatch, 117 Cal.App. 404, 3 P.2d 1023; Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350; Rasmussen v. Shickle, 4 Cal.App.2d 426, 41 P.2d 184; Bickford v. Lawson, 27 Cal.App.2d 416, 81 P.2d 216; McNamara v. Emmons, supra; Adams v. Boyce, 37 Cal.App.2d 541, 99 P.2d 1044.

There is a certain well recognized exception to this rule. The exception upon which plaintiff relies is illustrated by those cases in which recovery was permitted because of hot water bottle or hot compress burns suffered during post operative care. See, Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436; Timbrell v. Suburban Hospital Inc., 4 Cal.2d 68, 47 P.2d 737; McBride v. Clara Barton Hospital, 75 Cal.App. 161, 241 P. 941.

In these cases the burns were on healthy portions of the patients' bodies and were not in the diseased areas involved in medical or surgical treatment.

Other cases where the same exception to the general rule has been applied, under varying circumstances, are Brown v. Shortlidge, 98 Cal.App. 352, 277 P. 134, where a healthy tooth was knocked from the patient's jaw by the physician in preparing for a tonsillectomy, and Thomsen v. Burgeson, 26 Cal.App.2d 235, 79 P.2d 136, where the patient's healthy uvula and soft palate were cut and damaged by a surgeon while performing a tonsillectomy. In Barham v. Widing, 210 Cal. 206, 291 P. 173, a dentist was held liable for an infection caused by the use of an unsterilized needle in giving an injection of novocain.

These cases, and the hot water bottle and hot compress cases, are distinguished from the instant case for easily understandable reasons. This distinction, where healthy portions of the body are injured, as distinguished from the diseased portions that furnish the field of operation or treatment, is clearly made in Brown v. Shortlidge, supra, quoting from Evans v. Roberts, 172 Iowa 653, 154 N.W. 923, as follows: “ ‘It is the appellant's contention that there is no evidence in the record to support a finding that he was negligent. With this we are unable to agree. Assuming, for the purposes of this case, the soundness of the argument that, in performing an operation, a surgeon is not held to guarantee results, and that, if he possesses the measure of skill which the law requires, a mere failure of judgment in his choice of methods and means is not actionable negligence, such concession is insufficient for the disposition of the issue of negligence in this case as a matter of law. This is not the ordinary case where a practitioner is sought to be charged with liability for alleged improper treatment of some bodily ailment or infirmity. He was employed to remove the adenoids from the plaintiff's throat, and there is neither claim nor proof that he did not successfully remove them. His negligence, if any, was in failing to take due care to avoid injury to the undiseased parts in the vicinity of which the operation was performed; and while it may be true that, had the operation upon the adenoids been unsuccessful and disappointing, no inference of negligence or want of skill would arise therefrom, it does not follow that this rule applies with the same force to an injury done by him to sound and undiseased parts of the plaintiff's person, which he was not called upon to treat and did not pretend to treat. If a surgeon, undertaking to remove a tumor from a person's scalp, lets his knife slip and cuts off his patient's ear, or if he undertakes to stitch a wound on the patient's cheek and by an awkward move thrusts his needle into the patient's eye, or if a dentist, in his haste, leaves a decayed tooth in the jaw of his patient and removes one which is perfectly sound and serviceable, the charitable presumptions, which ordinarily protect the practitioner against legal blame where his treatment is unsuccessful, are not here available. “It is a matter of common knowledge and observation that such things do not ordinarily attend the services of one possessing ordinary skill and experience in the delicate work of surgery. It does not need scientific knowledge or training to understand that, ordinarily speaking, such results are unnecessary and are not to be anticipated, if reasonable care be exercised by the operator.” ’ ” [98 Cal.App. 352, 277 P. 135.] The reasoning in the Brown case was followed and relied upon in Thomsen v. Burgeson, supra.

The rule involving the exception was somewhat differently stated in Barham v. Widing, supra, as follows: “It is equally true that cases which depend upon knowledge of the scientific effect of medicine, or the result of surgery, must ordinarily be established by expert testimony of physicians and surgeons. Perkins v. Trueblood, 180 Cal. 437, 181 P. 642. This rule, however, applies only to such facts as are peculiarly within the knowledge of such professional experts, and not to facts which may be ascertained by the ordinary use of the senses of a nonexpert.” [210 Cal. 206, 291 P. 176.]

In the instant case the facts present an entirely different situation that brings the case without the exception to the general rule. The treatment was by means of an electric modality, knowledge of the use and effect of which lies entirely outside of the field of the knowledge and experience of the layman. Expert medical evidence was required to show the reasonableness and propriety of the treatment, what occurred and how and why it occurred, as well as the standard of care and skill in the use of such modality in Riverside or similar communities. Knowledge of these things lies exclusively within the knowledge of experts whose testimony was necessary to make out a case for plaintiff. Also, the burn occurred in the injured area which was being treated and was not in healthy tissue separated from it, which further distinguishes the case from those involving burns from hot water bottles and hot compresses or injury to healthy portions of the body.

Plaintiff also urges that she was entitled to rely upon the doctrine of res ipsa loquitur which would require the cause to be submitted to the jury and would make erroneous the action of the trial court in instructing the jury to return a verdict for defendant.

The rule governing the trial court in giving an instructed verdict is thus stated in Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 77 P.2d 1059, 1061: “It is settled that a directed verdict may be granted only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff, if such a verdict were given. Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.”

In support of her argument that the doctrine of res ipsa loquitur is applicable here, plaintiff relies on the cases of Ragin v. Zimmerman, 206 Cal. 723, 276 P. 107, and Moore v. Steen, 102 Cal.App. 723, 283 P. 833, 835. In those cases it was held that where the physician or dentist negligently used an X–ray machine in the process of diagnosis, the injured patient might recover. That the rule that the doctrine of res ipsa loquitur may be applied in cases where the X–ray is used for the purpose of diagnosis but not where it is used for the purpose of treatment of disease is stated in Moore v. Steen, supra, as follows:

“As to the general application of the doctrine of res ipsa loquitur to the use of the X–ray, it seems to be a matter of agreement between both parties that the weight of authority in recent decisions in other jurisdictions is against it, and it is conceded that ordinarily this doctrine cannot be applied in cases of alleged malpractice of physicians and surgeons in the treatment of disease.

“The doctrine as laid down by Judge Taft in Ewing v. Goode, C.C., 78 F. 442, 443, in the following language, is undisputed:

“ ‘Before the plaintiff can recover, she must show by affirmative evidence––first, that defendant was unskillful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury. * * * A physician is not a warrantor of cures. If the maxim, “Res ipsa loquitur,” were applicable to a case like this, and a failure to cure were held to be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the “ills that flesh is heir to.” ’

“It may be noted, however, that this is not a case claiming damages for malpractice in the treatment of disease, but for negligence in the process of a diagnosis to ascertain the cause of plaintiff's ill health. This distinction in the application of the rule under consideration seems to be recognized in the decisions.”

As diathermy was used for the treatment of an injury and not for the purpose of diagnosis, the Ragin and Moore cases cannot be considered as authority for holding that the doctrine of res ipsa loquitur is applicable here.

Plaintiff cites the case of Ware v. Culp, 24 Cal.App.2d 22, 74 P.2d 283, 287, as authority for our holding that the doctrine of res ipsa loquitur may be applied here. Bessie Ware was burned by electric pads while an inmate in a hospital owned and operated by defendant Culp who was the sole defendant in the case. The pads were applied by a special nurse under the direction of the doctor employed by plaintiff. Neither the special nurse nor the doctor in charge were agents or employees of Culp. For that reason the judgment for plaintiff against Culp was reversed, the court remarking that, “The doctrine of res ipsa loquitur cannot aid the plaintiff under the circumstances of this case.” Clearly, plaintiff here can find no aid in that decision.

The question of the applicability of the doctrine of res ipsa loquitur in malpractice cases was carefully considered in Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409. The court there concluded that where the act complained of involved the knowledge of treatment of disease or of surgery the doctrine cannot be applied, but where such acts are within the experience of or may be measured by the ordinary senses of the nonexpert the doctrine is applicable. Nicholas v. Jacobson, 113 Cal.App. 382, 298 P. 505, and Barham v. Widing, supra, are to the same effect.

The same question was considered in Engelking v. Carlson, supra, where it was said [13 Cal.2d 216, 88 P.2d 697]:

“The law has never held a physician or surgeon liable for every untoward result which may occur in medical practice. It requires only that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the same locality and that he shall use ordinary care and diligence in applying that learning and skill to the treatment of his patient. Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654. Whether he has done so in a particular case is a question for experts and can be established only by their testimony. Perkins v. Trueblood, 180 Cal. 437, 181 P. 642; Patterson v. Marcus, 203 Cal. 550, 265 P. 222. And when the matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen, the expert evidence is conclusive. Wm. Simpson C. Co. v. Industrial Acc. Com., 74 Cal.App. 239, 240 P. 58; Johnson v. Clarke, 98 Cal.App. 358, 276 P. 1052. Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved. On the contrary, in the absence of expert evidence, it will be presumed that a physician or surgeon exercised the ordinary care and skill required of him in treating his patient. Donahoo v. Lovas, 105 Cal.App. 705, 288 P. 698.

“It is true that in a restricted class of cases the courts have applied the doctrine of res ipsa loquitur in malpractice cases. But it has only been invoked where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. * * * In each of these situations the rule was applied because common knowledge and experience teaches that the result was one which would not have occurred if due care had been exercised.” The concluding remarks of the court are applicable to the instant case. “But the present case shows an entirely different situation. Here what was done lies outside the realm of the layman's experience. Medical evidence is required to show not only what occurred but how and why it occurred.”

As the necessity for and the method of the use of the diathermy machine in the treatment of a sprain is something that lies entirely outside of the experience of the layman we must conclude that plaintiff may not invoke the doctrine of res ipsa loquitur to aid her here.

The only case to which we have been cited which in any way conflicts with the conclusions we have reached, is McCullough v. Langer, 23 Cal.App.2d 510, 73 P.2d 649. In that case the plaintiff patient recovered judgment against the defendant physician for damages caused by third degree burns which were the result of too long exposure of plaintiff's leg to the rays of an infra–red lamp which generated 140 degrees of heat in one hour. There was expert evidence introduced to the effect that under the standards of good practice prevailing in the neighborhood, the plaintiff's leg should not have been exposed to heat in excess of 110 degrees Fahrenheit; that the burn was caused by too long exposure to too great heat; that the treatment was not in accordance with the established standards of practice prevailing in the neighborhood. With this evidence before it, based on the testimony of medical experts, the judgment for plaintiff was very properly affirmed.

However, the court there proceeded to consider the doctrine of res ipsa loquitur and held it applicable to the facts of that case. Having reached the conclusion that the evidence of the experts sustained the charge of negligence against defendant, and such evidence having disclosed the exact cause of the burn, there seems little reason for plaintiff to have relied on the doctrine of res ipsa loquitur. The discussion of the applicability of that rule does not seem to be entirely necessary to a proper decision of the case. If the trial court erroneously gave an instruction on that subject it could hardly seem to be seriously prejudicial as all the elements necessary to a recovery had been clearly established by competent expert evidence. We cannot consider the arguments and the authorities cited (all of the cases cited by the court were cases of burns from hot water bottles or hot compresses, except Moore v. Steen, supra, which we have already considered) as of sufficient weight to require us to disregard the numerous cases to the contrary which we have already considered.

As plaintiff in the instant case was required to introduce evidence of experts showing negligence of defendant in his treatment of her, which she failed to do, and as the doctrine of res ipsa loquitur was not available to her, there is no substantial evidence in the record to support a judgment in her favor.

The judgment is affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concurred.