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


Civ. 11793.

Decided: June 23, 1938

Morris Lavine, of Los Angeles, for appellant. W. I. Gilbert, of Los Angeles, for respondent.

The plaintiff seeks by this action to recover damages which she alleges were caused by the malpractice of defendant. The action was tried with a jury and upon the termination of plaintiff's evidence the trial court granted a motion for a nonsuit. Plaintiff appeals from the judgment thereafter entered.

According to the evidence presented by plaintiff, she was working on Saturday, March 2, 1935, as a seamstress and accidentally ran a needle into her right ring finger through the second joint, where part of it became imbedded. She was taken to the office of defendant, a physician, who was asked to remove the needle. It was shortly after noon and defendant was about to leave his office, but he stated that he was familiar with that type of case and would have no trouble in removing the needle. At the time plaintiff went to defendant's office her hand was discolored by a dark stain from the goods upon which she had been working. Defendant did not wash the finger or hand but swabbed the finger with a liquid which he stated was iodine. Defendant tried to locate the needle with a Zio–Lite, but was not able to do so. He sent plaintiff to Dr. Ekes, a dentist in the building, who had X–ray equipment for taking pictures of teeth. An X–ray picture was taken, but it was not clear or distinct. Dr. Ekes stated that the picture was not clear because it was wet and that it should have been allowed to stand for some time after being washed, but that this was not done because of the shortness of the time. He also stated that “it was not very clear and distinct, because I am not in the habit of taking X–rays, only of matters of dentistry”. Although the needle could not be seen from the picture that was taken, no effort was made to secure another picture. Defendant made an incision in the finger and probed for the needle for from four to five minutes without locating it. He put some gauze in the wound to establish drainage, stitched up the side of the incision and bandaged the finger and hand. He gave plaintiff a box of pills to relieve pain and sent her home with instructions to come back the following Monday morning in order to get X–ray pictures. He gave her no further advice or instructions.

Saturday evening the hand became very painful and on Sunday efforts were made to telephone to defendant, but he could not be located. The finger and hand became swollen and in order to relieve pain plaintiff cut the bandages. She became feverish and ill. Plaintiff was taken on Monday morning to Dr. Henderson, who found evidence of infection. An X–ray picture was taken and plaintiff was sent to a hospital, where her hand was put under a fluoroscope and the needle was extracted. Her arm became swollen up to the shoulder and she was treated by Dr. Henderson for two or three weeks, after which time she was sent to the General Hospital, where her finger was amputated.

Dr. Henderson testified that plaintiff was suffering from blood poisoning and that although the infection was present when the needle entered the finger, it could not be controlled otherwise than by subsequent treatment and the removal of the needle accompanied by free bleeding and washing reduces the possibility of infection. He further testified that plaintiff's general physical condition was not good in that her resistance was low, that she “appeared to be tired and exhausted and worn out from probably a little too continuous hard work”.

Dr. Burnight qualified as a medical expert. He testified that he was acquainted with the usual and customary practice in this type of case in Los Angeles; that the effect of leaving a needle in the finger of a person in a rundown condition would be to cause trauma or injury to the tissue and that if allowed to remain it would undoubtedly set up infection; that the leaving of the needle in the tissue was the primary cause of the infection and that as it became more advanced it would develop gangrene. He further testified that it is the usual and ordinary custom in this community to take an X–ray of a finger before it is incised for the purpose of removing a needle; that where an X–ray is faded and the needle is entirely incased in the finger and not visible to the eye, it would not be the customary and usual practice in this community for a doctor to cut and incise the finger relying upon that type of an X–ray; that due to the infection, and pressure from the swelling, all the tissues and blood vessels in the immediate vicinity would become infected and deteriorated so as to stop the natural flow of the blood stream, resulting in gangrene; that when gangrene sets in amputation is necessary to save the life of the patient.

The rules to be applied in the case of a motion for a nonsuit are too well established to require the citation of authority. The trial court must assume that all the evidence in plaintiff's favor is true and every favorable inference fairly deducible from the evidence and every favorable presumption fairly arising from the evidence must be drawn in plaintiff's favor. Measured by these rules it must be held that the issues should have been submitted to the jury. We are not unmindful of the general rule, which is relied upon by defendant, that in cases of malpractice it must be shown by expert testimony that the damages suffered by plaintiff resulted from the failure of the defendant to possess and use that degree of care and skill ordinarily possessed and used by physicians and surgeons in good standing practicing in the locality. The testimony of the experts in the case now before us was sufficient to meet the requirements of the general rule, considered in connection with the facts established by the lay witnesses. Even in actions for malpractice the jury can consider without the testimony of experts matters which are within the common knowledge of mankind. Although it is necessary that experts be called to establish matters peculiarly within the knowledge of experts there are also “facts which may be ascertained by the ordinary use of the senses of a nonexpert”. Barham v. Widing, 210 Cal. 206, 291 P. 173, 176. If the defendant had undertaken to remove a needle from the ring finger but had made an incision in the thumb it could not be successfully argued that an expert witness would be necessary to establish negligence. In Rankin v. Mills, 207 Cal. 438, 441, 278 P. 1044, 1045, the court stated: “Expert testimony appears in the record to the effect that, under such conditions, and in view of the fact that no improvement occurred in the limb under the treatment for dislocation of the hip, the next step, logically and scientifically, was to investigate further the nature of the injury by taking X–ray pictures. Indeed, this would seem so obvious as to be a permissible inference without expert testimony on the subject, as would be the conclusion that a failure to do this was negligence.” See, also, Thomsen v. Burgeson, Cal.App., 79 P.2d 136; Evans v. Roberts, 172 Iowa 653, 154 N.W. 923. It might be well argued that it is a matter of common knowledge that a needle accidentally embedded in the finger of a seamstress might cause infection if not promptly extracted; that a clear X–ray picture would be of assistance to the surgeon; and that if an indistinct picture be secured from a dental office an effort should be made to secure a clear picture from those equipped with apparatus for that purpose.

Plaintiff complains that the trial court unduly curtailed the examination of the expert witnesses. In several instances the court erroneously sustained objections to plaintiff's questions. It would prolong this opinion unnecessarily to set forth the various questions, a number of which, being hypothetical, were quite lengthy. Upon a new trial it is to be assumed that the rulings on the admission of evidence will be correctly made. For the purposes of this appeal it is sufficient to state that if a verdict had been rendered in plaintiff's favor it would have found ample support in the evidence admitted.

The judgment is reversed. The attempted appeal from the order denying a motion for a new trial is dismissed.

WOOD, Justice.

We concur: CRAIL, P. J.; McCOMB, J.

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