Reset A A Font size: Print

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


Civ. 10627.

Decided: June 01, 1938

Clark, Nichols & Eltse, of Berkeley, for appellant. Myron Harris, William H. Older, and John Jewett Earle, all of Oakland, for respondents.

Plaintiff has appealed from an order granting the nonsuit and the judgment of dismissal entered in favor of defendant Ream, and from the judgment entered in favor of defendant Carlson, subsequent to the granting of his motion for a directed verdict. Defendants are duly licensed and practicing physicians and surgeons. Plaintiff sought to recover damages for physical injuries alleged to have been sustained as a result of the asserted negligence of defendants in the performance of a surgical operation on the left knee of plaintiff.

“It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or 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 plaintiff if such a verdict were given.”’ In re Estate of Lances, 216 Cal. 397, 400, 14 P.2d 768.

In the light of this rule, the facts of the present case are as follows: Plaintiff Engelking, while engaged in the repair of an elevator, injured his left knee and was treated by defendant Carlson, a duly licensed physician and surgeon, whose services were supplied by the insurance carrier of plaintiff's employer. Plaintiff suffered a strain of the crucial ligaments and external lateral ligaments of the left knee, and he was treated accordingly. As the result of said treatment, plaintiff was able to walk and had full use of his left leg and foot, but some instability remained in his left knee which made it impossible for him to perform the work he had formerly been employed to do, and therefore defendant Carlson suggested an operation on the left knee to repair the injured ligaments.

On March 9, 1936, defendant Carlson, assisted by defendant Ream, performed the operation which forms the basis of plaintiff's action. Immediately after the operation, it was apparent that he was suffering from what is known as foot drop, and his leg was placed in a cast as a treatment. Foot drop consists of a loss of ability to turn the foot inward, a loss of ability to extend the toes and to raise them, and a loss of sensation in the lower frontal portions of the leg below the knee, and the greater portion of the top of the foot. The treatment given resulted in no improvement. On August 1, 1936, Dr. Lawrence performed an operation on plaintiff's left knee in approximately the same location as the incision made by defendant Carlson during the prior operation. He found that the external peroneal nerve had been severed at a point approximately where its course intersected the course of the incision made by defendant Carlson. Dr. Lawrence freshened the ends of the nerve and sutured them together. There had been practically no improvement in plaintiff's condition at the time of the trial.

The external peroneal nerve is a nerve approximately 3 1/2 to 5 millimeters in diameter. It has both motor and sensory functions, controlling the peroneus muscles and the extensor muscles of the toes and furnishing sensation in the front and lower part of the leg and the top of the foot. It controls the raising of the foot, the turning of the foot inward, and the extension of the toes. Its course runs down the space behind the knee, downward and around through the muscle and around the neck of the fibula. During the course of the operation performed by defendant Carlson, it was necessary to retract the nerve and pull it to one side in order that the ligaments could be repaired. The nerve was not isolated but was retracted with the muscles in which it was imbedded.

Defendants concede that the condition of the left leg and foot of plaintiff subsequent to the first operation was due to the severance of the peroneal nerve, and that the evidence is sufficient to establish the fact that the nerve became severed during the course of the operation.

Plaintiff contends that there is evidence that the operation although not an emergency operation, was performed hurriedly and therefore negligently. The plaintiff testified to a conversation had with defendant Carlson as follows: “I said I had read an article in a magazine by some doctors down in Los Angeles that after they had sutured a cut and it healed up there wouldn't be any scar. And he said, ‘Well, I could do that, too, but I was in a hurry, and I didn't suppose you were going into any beauty contest.’ Q. And that was said with reference to this scar on the side of your leg, designating the left leg. A. That is correct.” The language of Phillips v. Powell, 210 Cal. 39, at page 43, 290 P. 441, at page 443, is applicable here. The court said, “We are of the opinion that these statements or otherwise did not constitute admissions that the defendants ‘did not possess and use that reasonable degree of learning and skill which was ordinarily possessed by the members of their profession in good standing practicing in their vicinity,’ which is the only standard by which the liability of the defendants may be determined.” The statement of defendant Carlson is not an admission of any lack of care in the performance of the operation. It cannot be distorted to mean any more than that he hurried in suturing the outer incision, and therefore the scar left was larger than it might have been.

Plaintiff's contention that the evidence shows that defendants failed to examine the nerve before closing the wound to ascertain if the nerve had been injured, and that this omission constituted negligence, is without merit. The medical testimony discloses that the nerve was not laid bare, but was retracted with the issue surrounding it. To examine it, the surrounding tissue would have to be laid open along the length of the nerve, an act which might itself result in severe injury to the nerve. It further discloses that the standard practice of surgeons of good repute in the locality is to ascertain whether the nerve has been injured after the completion of the operation and after the patient has regained consciousness by means of testing certain reflexes in the lower leg and foot. This was done, and it was through this diagnosis that the foot drop was discovered.

It is next argued that the facts of the case make it proper for the application of the doctrine of res ipsa loquitur, and therefore an inference of negligence might arise sufficient to support a verdict in plaintiff's favor. With this we must agree.

The facts of this case bring it within the doctrine announced in Brown v. Shortlidge, 98 Cal.App. 352, 277 P. 134, and Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409, where the opinion of Brown v. Shortlidge is extensively quoted and adopted. In Armstrong v. Wallace, 8 Cal.App.2d 429, 47 P.2d 740, and in Thomsen v. Burgeson, Cal.App., 79 P.2d 136, the same doctrine is followed. In these cases, the doctrine of res ipsa loquitur has been applied where injury has resulted from the work of a surgeon during the course of an operation. In Brown v. Shortlidge, supra, the plaintiff's jaw was fractured and a tooth knocked out during the course of an operation to remove adenoids. In both Ales v. Ryan, supra, and Armstrong v. Wallace, supra, the injury resulted from a laparotomy sponge left in the body cavity during the course of an operation involving the opening of the body cavity. In Thomsen v. Burgeson, supra, plaintiff's uvula and a portion of the soft palate were removed and a portion of the throat injured in the course of a tonsilectomy performed by defendant.

The determining factor in the question of the applicability of the doctrine in operative cases of this kind is whether the act causing the injury is one which can be visualized by the layman or whether it is one which depends entirely upon scientific or medical knowledge. The application of the doctrine, under the rule of the cases cited, seems evident. The plaintiff was completely anaesthetized, and, while in that condition, the operation was performed upon his knee. It is impossible for plaintiff to know what occurred. Defendants were in complete charge of the operation, during the course of which the external peroneal nerve was severed. We are not here involved with negligence in either the diagnosis of a condition or in its treatment. The facts of this case show that the nerve was not being treated, and that it was not in any way diseased. True, the nerve lay in the operative field, but it was involved only to the extent that it had to be retracted to one side in order that the operator might go beneath it.

Defendants rely strongly upon Nicholas v. Jacobson, 113 Cal.App. 382, 298 P. 505. In that case it was held that the doctrine of res ipsa loquitur was not applicable. There the plaintiff sought to recover for the loss of a testicle, resulting, he claimed, from the negligence of defendant during an operation to remove varicose veins from the scrotum of the plaintiff. The expert evidence showed that the testicle atrophied, and that at the time defendant operated the atrophy had progressed to such a point that complete destruction was probable. However, in the course of the opinion this court said, page 385, 298 P. page 506:

“This brings us to the oft–disputed question of the application of the res ipsa loquitur doctrine in cases of alleged professional malpractice. In Brown v. Shortlidge, 98 Cal.App. 352, 357, 277 P. 134, 136, the court reviews a number of cases dealing with this question and approves the application of the doctrine when the result of the professional treatment is of such a character that medical testimony is not necessary to prove it. As illustrative of such a case the court said: ‘If a patient should visit a surgeon for the purpose of having a mole removed from the right foot and awoke from an anesthetic minus his left arm, it is certain that some satisfactory explanation would be required to stop the fact itself from broadly proclaiming the negligence of the surgeon.’ The illustration is followed by a statement which draws a clear distinction between the character of cases where the doctrine is sought to be applied; the cases where the question of negligence depends upon the merits of a diagnosis and scientific treatment, and the cases where some ulterior act or omission occurs, the judgment of which does not require scientific opinion to throw light upon the subject.

“The principle seems clear. The res ipsa loquitur doctrine rests upon the inference of negligence drawn from the fact that the injury was not one which would ordinarily have happened if those having the management used proper care. But an inference is a deduction which the reason of the jury makes from the facts proved. Code Civ. Proc., § 1958. Hence, when the facts can be proved by competent evidence, independent of scientific or expert opinion, the reason of the jury would permit an inference of negligence drawn from the proved facts. But when proof of those facts depends wholly upon scientific or expert opinion, and all the testimony offered for that purpose demonstrates that there was nothing more than an error of judgment, and fails to show a want of ordinary care, diligence, and skill, there are no proved facts upon which an inference of negligence may be founded. Mere proof that a diagnosis was wrong or that a treatment was unsuccessful will not support a verdict. Patterson v. Marcus, 203 Cal. 550, 552, 265 P. 222; Hall v. Steele, 193 Cal. 602, 605, 226 P. 854; Markart v. Zeimer, 67 Cal.App. 363, 364, 227 P. 683; Johnson v. Clarke, 98 Cal.App. 358, 361, 276 P. 1052.

“The true rule, as we understand it, is this: Ordinarily, negligence on the part of a physician or surgeon must be proved by expert evidence (Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642; Patterson v. Marcus, 203 Cal. 550, 553, 265 P. 222; Houghton v. Dickson, 29 Cal.App. 321, 325, 155 P. 128), 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. Comm., 74 Cal.App. 239, 243, 240 P. 58; Johnson v. Clarke, 98 Cal.App. 358, 364, 276 P. 1052.) Hence, when the expert evidence fails to show negligence on the part of the physician or surgeon, and there is no evidence of an independent act or omission within the common knowledge of laymen, there is no ground upon which the jury may base an inference of negligence, and in such a case a nonsuit is proper. Patterson v. Marcus, supra; Johnson v. Clarke, supra; Donahoo v. Lovas [105 Cal.App. 705], 288 P. 698.”

Nothing therein said prevents the application of res ipsa loquitur doctrine to the present case. Scientific or expert opinion is not required herein because we are not involved with negligence in the diagnosis or treatment of a human ailment. The testimony of experts is necessary to establish the facts concerning the location and function of the external peroneal nerve, the location of the crucial and external lateral ligaments of the left knee, the location of the operative fields, and the extent to which the external peroneal nerve is involved in the operation which defendants undertook to perform. But once these facts are established, the inference of negligence is one which may be drawn by the application of the common knowledge of laymen.

Defendants also rely upon Markart v. Zeimer, 67 Cal.App. 363, 227 P. 683, but we do not understand the question of the applicability of the doctrine of res ipsa loquitur to have been properly raised in that case, and further, the court made no attempt to decide whether or not the doctrine was applicable.

We pass next to the question of the propriety of the court's action in granting the nonsuit and directed verdict. It is well established by the authorities in this state that the doctrine of res ipsa loquitur, where applicable, gives rise to an “inference” rather than a “presumption”. Anderson v. I. M. Jameson Corporation, 7 Cal. 2d 60, 66, 59 P.2d 962; Gritsch v. Pickwick Stages System, 131 Cal.App. 774, 782, 22 P.2d 554. Of the distinction between an inference and a presumption, the Supreme Court in Engstrom v. Auburn Automobile Sales Corporation, 77 P.2d 1059, at page 1063, said: “On the other hand, an inference is dispelled as a matter of law when it is rebutted by clear, positive, and uncontradicted evidence which is not open to doubt, even though such evidence is produced by the opposite side [i. e., the party not relying upon the inference] * * *. Of course, if the opposition evidence is conflicting, vague, or uncertain, or is weakened by contradictions or improbabilities, an inference is not dispelled as matter of law.” In that case, it was held that the “positive, unequivocal, and uncontradicted testimony” produced by the respondent was sufficient as a matter of law to dispel an inference of permissive use of an automobile relied upon by the appellant. It does not follow, therefore, that the mere presence of evidence which makes applicable the doctrine of res ipsa loquitur, and therefore gives rise to an inference of negligence, compels the trial court to allow the case to go to the jury. If the inference of negligence arising from the application of the doctrine is met by the introduction of evidence which rebuts the inference and that evidence meets the test laid down in the case of Engstrom v. Auburn Automobile Sales Corporation, supra, then the inference of negligence is dispelled from the case as a matter of law, and a nonsuit or directed verdict would be proper.

It must be emphasized first that the evidence introduced by defendant Carlson makes no attempt to explain how the nerve became severed. In fact, defendant Carlson testified, when examined by plaintiff under section 2055 of the Code of Civil Procedure, that he could not say positively that neither he nor defendant Ream severed the nerve. Defendants placed three doctors on the stand who qualified as experts. They testified that the methods followed by defendants in the course of the operation were good standard practice, as followed by surgeons of good repute in the same locality. But no one testified that the actual operation as performed was done with due care in all its details. These witnesses also testified that even though the operation were performed with due care, the external peroneal nerve would be severed in from five to nine per cent of the cases, and that the presence of scar tissue caused by the injury to the ligaments would increase the likelihood that the nerve would be severed. None of this evidence rebuts the inference of negligence in so clear and positive a manner that it may be said to be dispelled from the case as a matter of law.

Respondents rely strongly upon the evidence that the nerve will be severed in from five to nine per cent of the cases, although the operation is performed with due care. It is their argument that where such is the case, it cannot be said that the injury resulting from the operation is such as does not “ordinarily” result except when caused by negligence. In substance, this argument is one often rejected in prior cases. Without attempting to reconcile these cases it is sufficient to say that the principles which are controlling here are that negligence is the very basis upon which the tort action is founded; that negligence must be proved to support a recovery; that such proof may be supplied by either direct or indirect evidence; that, when the plaintiff relies upon indirect evidence––the inference drawn under the res ipsa loquitur doctrine––this inference must be one within the conception of the ordinary layman; that it is a question of law for the court to determine whether, under all the circumstances of the particular case, the inference is a reasonable deduction from the facts proved. But in the final analysis, negligence is the essential element to be proved, and, if the jury should infer that a severance of the nerve was not the “ordinary” result of such operations but that the injury was due to want of care in the course of the operation, we could not say that such inference was unreasonable or unsupported by the facts of this case.

As to defendant Ream, the record presents a different case. It is plaintiff's contention and conceded by defendants that the external peroneal nerve of the left leg was severed during the course of the operation. There is no claim that it was merely injured, and the testimony of Dr. Lawrence shows that when he operated upon plaintiff's left knee, he found the lower end of the nerve buried in the muscle under the neck of the fibula, the normal position for the nerve. But the upper end of the nerve, he testified, was found on the head of the fibula, away from its normal position. The evidence is clear, positive and uncontradicted that defendant Ream had not cut around the peroneal nerve. Defendant Ream handled the retractors, after they were placed by defendant Carlson, and cut ligatrices to prevent bleeding. The evidence shows that the peroneal nerve might be injured by pulling on it with retractors, but no claim is made in this case that the nerve was injured. The following answer made by defendant Carlson stands uncontroverted: “Q. Was there any instrument in the hands of Dr. Ream that would actually have severed that nerve? A. No.” In the light of this evidence, it is clear that under the doctrine of Engstrom v. Auburn Automobile Sales Corporation, supra, the inference of negligence which might arise from the application of the doctrine of res ipsa loquitur was completely rebutted and dispelled from the case, by the clear, positive and uncontradicted evidence above set forth. It follows that, as the inference of negligence as to this defendant was dispelled from the case as a matter of law, the order granting a nonsuit was proper.

In applying the rule announced in Engstrom v. Auburn Automobile Sales Corporation, supra, we are not unmindful of the earlier decisions, such as Housel v. Pacific Electric Ry. Co., 167 Cal. 245, 139 P. 73, 51 L.R.A.,N.S., 1105, Ann.Cas.1915C, 665; Michener v. Hutton, 203 Cal. 604, 265 P. 238, 59 A.L.R. 480; Kenney v. Antonetti, 211 Cal. 336, 295 P. 341; Meyer v. Tobin, 214 Cal. 135, 4 P.2d 542; Morris v. Morris, 84 Cal.App. 599, 258 P. 616; Harvey v. San Diego Electric Ry. Co., 92 Cal.App. 487, 268 P. 468; Buffums' v. City of Long Beach, 111 Cal.App. 327, 295 P. 540; Rayl v. Syndicate Bldg. Co., 118 Cal.App. 396, 5 P.2d 476; Raymer v. Vandenbergh, 10 Cal.App.2d 193, 51 P.2d 104, and Mintzer v. Wilson, 21 Cal.App.2d 85, 68 P.2d 370.

These cases are overruled, in our opinion, by the Engstrom Case to this extent: They hold that where an inference of negligence arises by reason of the applicability of the doctrine of res ipsa loquitur and it is rebutted by uncontradicted testimony introduced by defendant, a conflict of evidence is presented for determination by the jury, or the court sitting without a jury in all cases, because the credibility of defendant's witnesses is to be determined by the triers of the facts. On the contrary, the Engstrom Case holds that the question of whether an inference is dispelled from the case may become a question of law to be decided by the court, and that when the inference “is rebutted by clear, positive, and uncontradicted evidence which is not open to doubt,” it is dispelled from the case as a matter of law, even though such evidence is produced by the defendant. It was upon this same principle that we held in Coats v. General Motors Corporation, Cal.App., 64 P.2d 1168, that a former opinion applying an inference of bad faith, or fraud, was not the law of the case upon a new trial where new evidence was produced rebutting such inference, because the court must then determine upon all the evidence whether the inference has been dispelled as a matter of law. That case is now pending before the Supreme Court, on transfer, but, until that court rules to the contrary, we may assume that the Engstrom Case states the law controlling our disposition of the instant case.

The order granting a nonsuit and the judgment of dismissal in favor of defendant Ream are affirmed. The judgment in favor of defendant Carlson is reversed.

NOURSE, Presiding Justice.


Copied to clipboard