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


Civ. 17968.

Decided: May 18, 1951

Sheppard, Mullin, Richter & Balthis, Gordon F. Hampton and E. Talbot Callister, all of Los Angeles, for appellant. Reed & Kirtland and Henry E. Kappler, all of Los Angeles, for respondents.

Plaintiff appeals from a judgment notwithstanding the verdict which had been returned against defendant Bennetts. The action was for damages allegedly sustained by appellant by reason of asserted negligence on the part of Dr. Bennetts, his assistant, Dr. Gummess, and the California Lutheran Hospital in connection with a surgical operation performed upon appellant. The surgery was for the purpose of removing certain varicose veins from appellant's left testicle. The trial court directed a verdict in favor of the hospital; the jury found in favor of defendant Gummess. Although appellant perfected his appeal against all defendants he now urges reversal of the judgment only in regard to Dr. Bennetts. The appeal as to the hospital was dismissed by this court on January 1, 1951.

For approximately twenty years appellant suffered from a varicocele in the left testicle. This condition became progressively worse until March 12, 1948, when he consulted respondent Bennetts, a urologist. The doctor's examination disclosed a large mass of veins in the left side of the scrotum which felt ‘like a sac of worms,’ and the testicle was very soft which usually indicates an advanced degree of atrophy. The doctor advised surgical removal of these veins. Appellant was hospitalized on March 23 and the operation was performed the following day. The scrotum was entered through a four-inch incision in the left upper region. The surgeon there found, on exposing the spermatic cord, a ‘mass of large, distended veins full of blood . . . tortuous or crooked and greatly enlarged.’ The surgery consisted of dissecting and removing such veins from the spermatic cord. Although the left testicle was small enough to indicate degeneration which had ‘resulted from progressive changes over a long period of time’ yet its removal was not then deemed necessary. The doctor inserted a rubber drain which he testified was placed in a stab wound at the lower part of the scrotum with one end protruding. On the day after surgery appellant complained of great pain. The scrotum and penis had become so swollen and dark that it was necessary to clip the tape holding operative dressings to relieve the pressure. His temperature rose to 101.2 degrees. On March 26th his pain continued to such degree that it was necessary for an interne to remove the surgical dressings and replace them with a small pad over the scrotum incision. Penicillin was prescribed by respondent from the 26th through March 30th. On the 27th the pain was so severe that appellant was given morphine. His temperature rose to a peak of 103.4 degrees. March 30th the doctor opened a portion of the incision and probed the wound with surgical forceps for the purpose of releasing any blood from the scrotal cavity to prevent a clot and its consequent pressure on the spermatic cord. Appellant was then ordered to take sitz baths each day. In taking such baths he was assisted by his friend, Mr. Greene, who made daily visits to the hospital.

On April 13 appellant was permitted to leave the hospital by ambulance for his home and instructed to continue his sitzbath treatment. On April 26th appellant visited Dr. Bennetts' office for an examination and was instructed to apply hydrogen-peroxide to the incision and to cleanse it with swab sticks. On the 28th when appellant was cleansing pus from the wound he and his mother noticed deep in the incision a substance resembling a muscle or segment of pus. Upon touching this object the end of a rubber tube flipped up and protruded from the incision. Appellant became alarmed and attempted to reach Dr. Bennetts by telephone, but without success. Appellant testified that he had never been informed of any tube's having been placed in the scrotum. The next morning the tube came out adhered to a dressing. That day appellant succeeded in contacting Dr. Bennetts who when informed as to what had occurred said, ‘That is fine. I left it for a drain. I am glad you found it.’

On the next day appellant visited respondent for an examination and was advised that he should undergo further surgery for complete removal of the left testicle. Appellant then visited another physician for an examination and this doctor's diagnosis was apparently in accord with the opinion of respondent. Accordingly, arrangements were made and on May 6th Dr. Bennetts performed the operation. Recovery was uneventful and appellant was able to return to work May 18th.

Appellant's charge of negligence on the part of respondent is that the rubber drain was so negligently placed and so carelessly maintained that as a result thereof appellant was forced to undergo the second operation for the removal of the testicle. The jury were evidently convinced of the truth of such claims and it cannot be denied that they were persuaded by substantial evidence. Appellant testified that he was able to observe the scrotum; the left side was blue-purple and about the size of a medium orange; the lower part was drawn up over the abdomen so that he ‘could see it very plainly’; there was no opening in the scrotum other than the four-inch incision and nothing protruded from the scrotum. Mr. Greene's testimony was substantially the same with reference to the swollen area and the absence of a protruding rubber drain and the stab wound. Appellant was corroborated also by his mother and Mr. LeFevre, a neighbor who observed the wounded organ daily. Both testified that they observed the entire scrotum, but saw neither a protruding drain nor opening, nor scar in the bottom of the scrotum.

Such testimony was contradicted by respondent and his assistant in testifying that the tube was inserted for drainage purposes; a quarter inch of it protruded from a separate ‘stab wound’; only they had knowledge of the presence of the drain and respondent had ‘overlooked’ mentioning the drain and stab wound in his operative report as it was routine procedure. Without laboring the point further, suffice it to say that, conceding respondent to have been negligent as claimed by appellant, it was not established that the presence of the rubber drain within the diseased scrotum until April 29th was the sole cause of, or that it proximately contributed to, the degenerated necrotic condition of appellant's scrotum necessitating the removal of the left testicle. The structure of the human body with its respiratory and circulatory and nervous systems; its glands and their interdependent relationship; the atrophy, degeneration and disease of its various parts—these things have been the subject of study, investigation, and experimentation for centuries. So complicated is the organization of all parts of the human mechanism that only those who have explored the subject seriously and become learned in the science of physiology are equipped to speak as to the causes of bodily changes. So universally recognized is the truth of the foregoing observation that it has become the established rule in the field of malpractice that not only must a surgeon's negligence be affirmatively proved by expert testimony to the effect that the accused physician has failed to exercise that degree of care, skill and learning ordinarily possessed and exercised by reputable practitioners, under the same circumstances, in the same or similar locality, Moore v. Belt, 34 Cal.2d 525, 529, 212 P.2d 509; Sinz v. Owens, 33 Cal.2d 749, 753 205 P.2d 3, 8 A.L.R.2d 757, but it is equally the law that such expert proof is required to establish whether a thrombosis, a necrosis, a diseased or atrophied nerve, vein or organ of a complainant was caused by the established negligence of the physician. Appellant assumes that if he has proved the negligence of respondent it is a logical sequitur that the pathology was caused by such neglect. And, also, in order to minimize the effort to be expended in proving negligence, he has invoked the doctrine of res ipsa loquitur. In this he is not supported by the authorities. That doctrine is properly applied only in that class of cases 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 would have been followed if due care had been exercised. Moore v. Belt, supra, 34 Cal.2d 530, 212 P.2d 509; Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695.

Appellant contends that it was established either that the rubber drain was at first completely enclosed in the scrotum or that if it protruded at all, it slipped inside, became lodged therein, and had no access to the outside until discovered 25 days later when it was removed. Therefore, he maintains, laymen may determine that such behavior falls short of the requisite standard of prudent, surgical practice in the community of Los Angeles.

In support of his argument, appellant relies upon the ‘sponge cases,’ namely, Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; Key v. Caldwell, 39 Cal.App.2d 698, 104 P.2d 87; Armstrong v. Wallace, 8 Cal.App.2d 429, 47 P.2d 740. These decisions involve surgical operations where laparotomy sponges, used during surgery to aid in staunching the flow of blood and to ward off various organs from the operative field, were negligently permitted to remain in the body after operation. In the Ales case the sponge remained in plaintiff's abdomen four months before removal. The only defense urged was that the surgeon had a right to rely on the attending nurse's sponge count. The facts of the other decisions are similarly distinguishable from the case at bar. The sponges were inadvertently left in the incision and played no part in the after care or treatment of the patient, their function having ceased at the conclusion of the operation.

Appellant cites a number of decisions from other jurisdictions where the res ipsa loquitur doctrine was held to be applicable to drains intentionally placed in surgical incisions, but in each the wound was permitted completely to heal before discovery of the drain. See Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280; Saucier v. Ross, 112 Miss. 306, 73 So. 49. In Sontag v. Ude, 191 Mo.App. 617, 177 S.W. 659, the defendant physician permitted a drainage tube to slip within an infant's body, but there was strong evidence of negligence in that the doctor searched for the tube, actually performing surgery in an effort to locate it, but failed. A second operation two weeks later was necessary in order to remove the drain which had been left in the body and carelessly overlooked by the doctor. The evidence showed the baby to have been ‘getting along fine’ after bronchial pneumonia surgery at the time the drain slipped into his body, but thereafter became progressively weaker until he died three weeks after the accident. Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908, also cited, was concerned only with when a cause of action accrued where a surgeon left a drain in the plaintiff's body for two years. No mention was made of the applicability of the res ipsa doctrine.

The foregoing ‘sponge cases' bear primarily upon the subject of negligence which we concede to have been established for the purposes of this decision. However, they have been analyzed in answer to the assumption that the necrosis of the scrotum and the withering of the testicle were caused by the presence of the drain tube. Such assumption is without practical or scientific support. The uncontradicted testimony of Dr. Bennetts and three other urological experts was that considerable atrophy or degeneration of the appellant's left testicle had taken place over the years preceding the operation; the varicose veins removed were tortuous and crooked and six times their normal diameter; appellant's history of this condition indicated a progressive, degenerative change in the testicle; the post-operative laboratory examination of the removed testicle established the presence of ‘arteriosclerosis of branches of the testicular artery with old and recent thrombosis and extensive necrosis of the testicle.’ Respondent testified that the arteries were diseased; that the thickening of the artery lining and the thrombose formation in the blood vessels prevented a normal supply of blood from reaching the tissues of the scrotum before the variocelectomy. Such testimony was supported by that of Dr. DeLos Reyes and by the pathological report of Dr. Wright.* Moreover, respondent's testimony that ‘bacterial infection never played a causative role in the complication that developed’ was not questioned by appellant. There was no evidence received that the pathology of the scrotum was caused by the presence of the rubber drain. In view of the proof of a pathology that existed before appellant and respondent met, and continued until the removal of the testicle—can it be said by laymen as a matter of common knowledge that the presence of the tube was the proximate cause of the subsequent complications terminating with the removal of the organ? The record certainly does not establish a balance of probability in favor of the finding that damage resulted from any negligence on the part of Dr. Bennetts. The contrary determination by the jury was necessarily based upon mere conjecture and speculation.

We must conclude that neither the doctrine of res ipsa loquitur, La Porte v. Houston, 33 Cal.2d 167, 170, 199 P.2d 665, nor any other theory of negligence on the part of respondent is material to a determination that the doctor is not responsible for the condition that necessitated the removal of the testicle or that caused appellant's suffering. Only by surmise could the jury have concluded that the testicle's atrophy was due to the presence of the drain and not to the thrombosis and subsequent necrosis. They could return no such verdict upon the finding that it was probable for respondent's negligence to have been the proximate cause of the pathology. McKellar v. Pendergast, 68 Cal.App.2d 485, 489, 156 P.2d 950. In view of the foregoing, discussion of the assignment that negligence was established by Dr. Gummess would add nothing to prove respondent's liability. The court's ruling was correct.

The judgment is affirmed.

I dissent.

The majority of the court have thrown into the discard the rule which has heretofore been followed without exception that the power of the court to grant a motion for the entry of judgment notwithstanding the verdict of the jury is the same as its power to grant a nonsuit or a motion for a directed verdict. Such motion may be granted only when it appears from the evidence, viewed in the light most favorable to the successful party, indulging every legitimate inference that may be drawn from plaintiff's evidence and disregarding all evidence in conflict therewith, that there is no substantial evidence to support the verdict. Devens v. Goldberg, 33 Cal.2d 173, 177, 199 P.2d 943; Estate of Arnold, 16 Cal.2d 573, 581, 107 P.2d 25. If there is any substantial evidence, or any reasonable inference to be drawn therefrom in support of the verdict, the court is without power to grant such motion. Brandenburg v. Pacific Gas & Elec. Co., 28 Cal.2d 282, 284, 169 P.2d 909.

The majority opinion affirming the judgment entered notwithstanding the verdict is a repudiation of the foregoing rule. Its effect is a declaration that there is no evidence of sufficient substantiality to support the verdict in favor of plaintiff. The contrary is manifest from the abundance of sustaining evidence in the record—in fact from that which is quoted in the opinion in an attempt to show there is none. The majority has assumed the role of jury, weighing and comparing the evidence, accepting that which it may use in order to affirm the trial court and rejecting that which sustains the verdict.

Plaintiff and two witnesses testified they observed plaintiff's scrotum almost immediately after the operation and for several succeeding days. Another witness saw it shortly thereafter. All four of them testified that the incision was sewed up, tightly closed, and that nothing was protruding therefrom; that there was no wound in the scrotum other than the operative incision. Following the operation defendant stated to plaintiff's mother that ‘the left testicle appeared a little smaller than the other one but it appeared healthy and he would not take it out.’

The operation was performed on March 24. Six days later defendant removed some of the sutures and probed the wound by inserting surgical forceps deep into the incision. Defendant testified that such probing was for the purpose of establishing drainage. The rubber tube was not brought forth at that time. The hospital record does not contain any reference to the insertion of a drainage tube at the time of the operation or its presence at the time of the probing. On April 28, after plaintiff had been removed to his home, the end of the rubber tube ‘flipped out.’ Plaintiff and the same three witnesses who had previously examined him on several occasions, saw it protruding. They had never seen it before. On the next morning the rubber tube adhered to a dressing and came out dripping with pus.

On May 4 defendant advised further surgery for the removal of plaintiff's left testicle. The operation was performed on May 6th. Both the hospital records and the operative records of the latter operation, in contrast to the first, show that as a part of the operation a rubber tube was left protruding from a stab wound in plaintiff's scrotum.

Although at the time of the operation defendant reported to plaintiff's mother that plaintiff's left testicle appeared healthy and for that reason he did not take it out, on the following May 6 the testicle was in such condition that its removal was deemed necessary. Was defendant wrong in his first diagnosis and conclusion or did the organ deteriorate in so short a time that it had to be removed?

The complaint alleges damage to plaintiff not only for loss of his testicle but for the pain and suffering he experienced as the result of the enclosure of the tube within his scrotum. For such suffering he is entitled to recover compensation without regard to the removal of the testicle or to the cause thereof.

The majority opinion concedes that in reaching the verdict the jury ‘were persuaded by substantial evidence.’ With this statement I agree. But the opinion then proceeds to balance the positive substantial evidence against expert evidence given by defendant and other physicians. The jury was not required to accept the expert evidence. It was not compelled to and did not consider such evidence to be so superior in quality to the direct and positive eye-witness evidence given by other witnesses as to justify a verdict for defendant. This court is without power to substitute its opinion for that of the jury.

The majority has also disregarded the doctrine of res ipsa loquitur. A complaint alleging negligence in general terms, without allegations of specific acts, does not prevent the application of such doctrine. Ales v. Ryan, 8 Cal.2d 82, 93, 64 P.2d 409.

The tube was foreign matter placed within an organ of plaintiff's body by defendant. Medical skill or science is not necessary for the purpose of aiding a layman in arriving at the conclusion that such a foreign substance so enclosed must have caused harm to plaintiff's body, and that such a thing cannot ordinarily happen except as a result of negligence. Ales v. Ryan, supra, 8 Cal.2d at pages 95, 98, 64 P.2d 409. In the case of Key v. Caldwell, 39 Cal.App.2d 698, 104 P.2d 87, where a surgeon had left a laparotomy sponge in plaintiff's body and closed the incision it was held that the doctrine of res ipsa loquitur applied and the finding that the surgeon did not use reasonable care and skill was not rendered ineffective by evidence that he followed the practice or custom ordinarily used by surgeons in the same locality. At this point it should be noted that one of defendant's expert witnesses testified on cross-examination that under proper medical and surgical practice in this locality a surgeon does not intentionally permit a wound to close leaving a rubber tube within the scrotum with no part of it protruding. In the Ales case, supra, the defendant claimed it was customary and good practice to rely absolutely upon nurses to count the sponges and that the operating surgeons were so intently engaged in the active performance of the operation that it would be imposing an unreasonable burden upon them to charge them with keeping count of the number of sponges used in the operation as a check against mistake, and that such circumstance alone brought the case within the rule that the degree of skill or care required by a surgeon is that ordinarily exercised by physicians and surgeons in good standing practicing in the same locality. The court, 8 Cal.2d at page 100, 64 P.2d 409, rejected this theory and stated that failure to remove a sponge from the abdomen of a patient is negligence of the ordinary type and it does not involve knowledge of materia medica or surgery. The court further declared that a layman needs no scientific enlightenment to see that the omission can be accounted for on no other theory than that someone has committed actionable negligence. See also Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908, wherein the surgeon had allowed a drainage tube to remain inside the patient's abdomen for several weeks after the operation.

A surgeon is liable to his patient for damage resulting from the presence of a rubber tube in the patient's body whether the tube was left completely enclosed within the operative incision at the time of the operation, Saucier v. Ross, 112 Miss. 306, 73 So. 49, 50; Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280, 285, or, if left protruding, was so insecurely fastened that it thereafter slipped completely inside the patient's body. Evans v. Munro, R.I., 83 A. 82, 83; Sontag v. Ude, 191 Mo.App. 617, 177 S.W. 659, 660–661.

The judgment entered notwithstanding the verdict should be reversed with directions to the trial court to enter judgment upon the verdict.


FOOTNOTE.  Dr. DeLos Reyes' diagnosis of appellant's condition made before the second surgical operation was that ‘the vessels * * * giving blood * * * were impaired. Therefore, there was not sufficient blood supply to the part * * * that there would be necrosis in there at that time.’ He testified that the later laboratory report bore out his opinion. It was his conclusion that the condition was not the result of any infection.In his ‘special laboratory report,’ Dr. Wright said: ‘The lumina of a number of the arteries are filled with recanalized organized thrombi. Some of the arteries contain recent thrombus material. There is extensive necrosis with virtually complete obliteration of the testicular detail.‘The diagnosis is: arteriosclerosis of branches of testiculae artery with old and recent thrombosis and extensive necrosis of testicle.’

MOORE, Presiding Justice.

McCOMB, J., concurs.

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