ALES v. RYAN

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

ALES v. RYAN.*

Civ. 9475.

Decided: July 24, 1935

R. V. Bressani, David M. Burnett, and John M. Burnett, all of San Jose, for appellant. Bohnett, Hill & Campbell, Frank V. Campbell, L. H. Schellbach, and D. T. Jenkins, all of San Jose, for respondent.

As administrator of the estate of Rose Carauddo, the plaintiff has appealed from a judgment in favor of the defendant in an action brought to recover damages for alleged malpractice which the plaintiff claimed caused the death of his decedent. The points presented involve the soundness of certain instruction. Any facts neccessary to a complete understanding of the record will be stated as the occasion may require.

The trial court, at the request of the defendant, instructed the jury as follows: “The mere fact that a sponge was found in the abdomen of the deceased will not support a verdict against the defendant Fred S. Ryan in this case, for, in order for plaintiff to recover against Fred S. Ryan, it must be established that a sponge was left in her abdomen due to the failure of defendant Fred S. Ryan to exercise ordinary care.” The plaintiff contends that the alleged negligence in the instant case was negligence per se and therefore that the above instruction was an erroneous statement of the law. He cites and relies on McCormick v. Jones, 152 Wash. 508, 278 P. 181, 65 A. L. R. 1019; Moore v. Ivey (Tex. Civ. App.) 264 S. W. 283; Saucier v. Ross, 112 Miss. 306, 73 So. 49; Harris v. Fall (C. C. A.) 177 F. 79, 27 L. R. A. (N. S.) 1174; 21 R. C. L. 388. The defendant attempts to distinguish each of those cases on the facts that were before the court. We cannot say he does not satisfactorily do so. But conceding, solely for the purposes of this case, that the cases cited by the plaintiff support his contention, it must also be conceded that there are well-considered cases holding otherwise. In Cassingham v. Berry, 150 P. 139, the Supreme Court of Oklahoma was considering a case in which an instruction of the same import was given by the trial court. The plaintiff in that case made the same contention which this plaintiff now makes. In 150 P. 139, on page 141, the court said: “The basis and gist of this action was not the result of the operation, but negligence in the performance of it. If there was no negligence in the performance of the operation, then there was no cause of action, and could be no recovery; if there was negligence in the performance of the operation, than a recovery could be had. Whether or not the defendant exercised that degree of care in performing the operation that the law imposed upon him was the paramount question, and the test of the rights of the parties. And we think the defendant was entitled to this instruction, and, when taken in connection with the other instructions, that it did not prejudice the rights of the plaintiffs.” To the same effect see Rayburn v. Day, 126 Or. 135, 268 P. 1002, 59 A. L. R. 1062; Roark v. Peters, 162 La. 111, 110 So. 106; Funk v. Bonham (Ind. App.) 151 N. E. 22; Guell v.Tenney, 262 Mass. 54, 159 N. E. 451; Jackson v. Hansard, 45 Wyo. 201, 17 P.(2d) 659. The last case cited was decided by the Supreme Court of Wyoming in 1933. It is a careful review of the authorities down to date. Having made that review, 45 Wyo. 201, 17 P.(2d) 659, on page 664, the court said: “And we think that under the evidence in this case as outlined above, the question of due care was not a question of law, but was one for the jury to decide, subject, of course, to the ordinary right of the trial judge in such cases.” The trial court did not err in giving the instruction complained of.

Upon the request of the defendant the trial court instructed the jury as follows: “The burden is upon the plaintiff to prove negligence on the part of defendant Fred S. Ryan, and it must be proved by a preponderance of the evidence. The law presumes that defendant Fred S. Ryan was free from negligence and the mere fact that a sponge was left in the abdomen of Rose Carauddo raises no presumption that it was left there by defendant Fred S. Ryan, or that it was left there by reason of his negligence. And if it is just as probable that said sponge was left there by the negligence of another, or by reason of the mistake in the sponge count, or even by Fred S. Ryan under circumstances which would not amount to negligence on his part, then your verdict must be in favor of defendant Fred S. Ryan.” Having quoted that instruction, the plaintiff contends that it was error because the doctrine of res ipsa loquitur applied to the instant case. We think that the point may not be sustained by the record before us. In introducing his case the plaintiff did not in the trial court present the point. He called Dr. Ryan as a witness in behalf of the plaintiff and examined him as to the facts of the operation. In the same manner he called other witnesses who were present at the operation. Thereafter he called Dr. Gattuccio, the doctor who performed the second operation, and discovered the presence of the sponge in the abdomen of decedent. In short, the plaintiff assumed the burden of proof and presented his entire case. When the plaintiff rested, the defendant made a motion of a nonsuit. That motion was denied, and thereafter the defendant proceeded to introduce his case. Under these circumstances we think that it is clear that the trial court did not err in giving the instruction complained of. Bonneau v. North Shore R. R. Co., 152 Cal. 406, 412, 93 P. 106, 125 Am. St. Rep. 68.

It is next contended that the trial court erred because it refused to give an instruction to the effect that the defendant, even though he acted gratuitously, was bound to exercise ordinary care and skill. Whether the instruction was correct or incorrect, the subject-matter was fully covered by an instruction that was given and which was as follows: “The fact that a physician or surgeon renders his services gratuitously does not absolve him from the duty to use reasonable and ordinary care, skill and diligence.”

The alleged act of malpractice compained of occurred while performing an operation at the county hospital of Santa Clara county, which is located in San Jose. The record does not disclose that defendant had any authority at the hospital except as stated in this opinion. Dr. D. R. Wilson, the medical director of the county hospital, has general charge of operations to be performed at the hospital and designates the individual who is to perform the operation. He diagnosed the decedent's case, recommended the operation, and summoned Dr. Ryan to perform it. Dr. Ayers, an interne of the hospital, was present and assisted. All nurses in attendance were employed by the hospital and not by Dr. Ryan. The operation performed by Dr. Ryan consisted in removing stones from the gall bladder. The decedent was very corpulent. An incision about eight inches in length was made in the abdominal cavity. In the course of the operation many sponges were used–forty or more. At times certain acts were performed by the defendant, at other times certain other acts were performed by Dr. Ayers, at other times certain acts were performed by the nurses who were present and assisting. Acting on the defendant's request, the trial court gave an instruction which, among other things, contained passages as follows: “if it is just as probable that said sponge was left there by the negligence of another * * * then your verdict must be in favor of defendant Fred S. Ryan.” It also gave an instruction as follows: “If you find from the evidence that none of the nurses or attendants or doctors or assistants present at the operation of the deceased were in the pay or employ of defendant, Fred S. Ryan, then any negligence, if any, committed by any of said nurses, attendants, doctors, or assistants cannot be charged to Dr. Fred S. Ryan, unless you find that he directed the act complained of or that he knew of the existence of such negligent conduct and had a chance to remedy the fault, but failed to do so.” But the trial court declined to give an instruction requested by the plaintiff which was worded as follows: “You are instructed that where a surgeon performs an operation at a hospital and an assistant surgeon acts under his direction, it is no defense to an action for negligently leaving a sponge in the patient's body that it may have been left by another surgeon.” Asserting that the relation of respondeat superior existed between Dr. Ryan and the others in the room at the time the operation was performed, the plaintiff contends that the trial court erred in giving the first two instructions just mentioned and refusing the other. With this contention we do not agree. It cannot be said that the relation of master and servant existed between Dr. Ryan and any other person present in the room. There is no evidence that would justify the application of the doctrine of qui facit per alium facit per se. The court did not err. Guell v. Tenney, 262 Mass. 54, 159 N. E. 451; Maberto v. Wolfe, 106 Cal. App. 202, 289 P. 218.

Contending that the jurors may act on their general knowledge as laymen, that the evidence of expert witnesses is introduced solely to supplement the general information of the jurors, and that the jurors are not bound to accept and follow the opinions of experts, the plaintiff would have us follow that general rule in determining this case. We freely concede that the general rule is as claimed by the plaintiff, however, we think it is equally plain that there are well-defined exceptions to that general rule and that an action for malpractice falls within the exception. That was of the essence of our holding in Ross v. Hieronymus, 2 Cal. App. (2d) 258, 37 P.(2d) 837. See, also, Jackson v. Hansard, 45 Wyo. 201, 17 P.(2d) 659.

Acting upon the request of the defendant, the trial court instructed the jury as follows: “The plaintiff in this action is limited to the allegation of negligence which he makes in his complaint. He can recover on no other ground. The only charge is that the defendants negligently left a sponge in the abdomen of Rose Carauddo. There is no claim that defendants were unskilled or that they negligently used any improper kind or type of sponge, or that an improper or a negligent kind of a sponge was used, or of using an improper sponge, or one not provided with rings or hemostats.” The plaintiff asserts that said instruction was erroneous, but we think it was not. Paragraph IX of plaintiff's complaint was as follows: “That said operation was negligently, carelessly and recklessly performed by said defendants Fred S. Ryan and Doxey R. Wilson; that said negligence, carelessness and recklessness consisted in this: that they negligently, carelessly and recklessly left within the abdomen of said Rose Carauddo a large laparotomy sponge, and that after the gall bladder of said Rose Carauddo was removed the incision made therefor, was sewed up without removing said sponge.” That clearly stated the claims of the plaintiff. No single ruling was made excluding any part or portion of all of the facts of and concerning the operation as it was performed by the defendant. The facts as to the kind of sponge used, the manner in which it was used, and the ordinary practice in the particular neighborhood were testified to by the witnesses, and, so far as called to our attention, not a single erroneous ruling in the admission or exclusion of evidence occurred. We find no error in the record.

The judgment appealed from is affirmed.

STURTEVANT, Justice.

We concur: NOURSE, P. J.; SPENCE, J.

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