OFTEDAL ET AL v. CALAWAY

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District Court of Appeal, Fourth District, California.

OFTEDAL ET AL. v. CALAWAY.

Civ. 3008.

Decided: March 25, 1943

Julius Hansen and Rae B. Carter, both of Fresno, for appellant. Hadsell, Sweet, Ingalls & Carroll and Chester O. Hansen, all of Fresno, for respondent.

This is an action for damages for the death of a minor son, Donald Oftedal, aged 12 years, brought by Horace B. Oftedal and Vera Lawless, his former wife, against A. A. Calaway, a physician and surgeon, practicing his profession in Fresno.

The complaint alleges generally that on March 2, 1939, the respondent doctor entered upon an employment in endeavoring to cure the minor son of plaintiffs of a malady, but “did not use due or proper skill” in that he did not properly diagnose the malady, did not cause an X–ray picture of the child to be taken “at the proper time” and that he diagnosed the malady as an “antitoxin poisoning” and treated the child for such poisoning when, as a matter of fact, he was suffering from appendicitis and should have been treated for it; that as a result thereof, the child died.

An answer was filed denying specifically and generally these allegations. During the trial and at the conclusion of plaintiffs' case, plaintiff Vera Lawless filed an amendment to the complaint alleging that plaintiffs on March 9, 1939, were living separate and apart and that she was the mother of the child and had the legal as well as the actual custody of him.

A motion for nonsuit was granted as to both plaintiffs. Plaintiff Vera Lawless alone appealed from the judgment of dismissal. Respondent Dr. Calaway was called by appellant under section 2055 of the Code of Civil Procedure as her witness. After stating his qualifications as a licensed general practitioner in Fresno for 21 years, and specializing in gynecology and obstetrics, he testified generally that he had been the family physician for plaintiffs for many years and was the attending physician when Donald, the minor child, was born; that on Thursday, March 2, 1939, a Mrs. Lashley, the boy's aunt with whom the child had been living for several years, brought Donald to his office for an ailment; that he inquired of Donald as to his troubles and that “he says: ‘Well, my stomach hurts and I have been vomiting * * *’ and I says, ‘Do you remember eating anything unusual?’ He says: ‘Yes, when I came home from school yesterday afternoon,’ he says, ‘I went to the ice box and got a piece of bologna that was molded.’ He says, ‘I ate that,’ and he says, ‘That night I began vomiting.’ ” He then testified that that was about the only history he then obtained; that he took him into the examining room and examined his abdomen by palpation and percussion, used the stethoscope to examine his chest and lungs, took his temperature, which was around 100 degrees; that he found his abdomen was soft but tender all over; that he complained of a soreness of the whole abdomen, lower and upper, and more in the pit of his stomach; that he told Mrs. Lashley to take him home and put him to bed and apply an ice pack to the lower part of his abdomen and put him on a boiled “skim milk diet”; that he sent him out some “elixir cascara fidext” to remove the cause; that he explained that in an attack of ptomaine this was essential; that other medication followed to slow down peristalsis of the valves. He then testified that Mrs. Lashley inquired as to what was wrong with the boy and that he replied he had an attack of ptomaine “due, probably, to this food he ate”; that he had a general “enteritis of the whole intestinal tract” which he explained to her; that when he was taking history he told her “It sounds like we might have an attack of appendicitis”; that that was before he got all of the history, but after the history of eating the molded bologna the conclusion was that he had an attack of ptomaine poisoning or gastro enteritis; that he then told her that his own boy had appeared very much the same and that he had waited two or three days and then operated. He then said that early Saturday morning about one o'clock, he was called to the Lashley home; that he examined Donald again and found no ice pack on him; that he asked Mrs. Lashley “why they had not kept the ice pack on,” as suggested and she replied that they had no way of fastening it on; that by palpation he found no rigidity in the abdomen; that the boy complained of general soreness of the entire abdomen; that he suggested that they take the youngster to the hospital; that later that morning, Saturday, March 4, they took him to the hospital; that he then visited him there and had the nurse take his temperature and that he found it was normal; that he examined him and ordered a complete laboratory test consisting of blood and urine analysis, and prescribed a low enema; that on the same evening he saw him again and examined the charts and compared them with his physical findings; that his temperature was 100.4 degrees; that he examined his chest with a stethoscope and looked at his throat; that his abdomen was still “sept,” i. e., “no rigidity”; that the physical findings recorded on the chart were “head and neck, normal; chest normal. And abdomen distended; tenderness in the left side, vomiting, diarrhea, urine cloudy, his skin dry, and glands normal.” On March 4, 1939, there was filled out by the nurses and by the doctor a chart designated “working diagnosis.” It reads: “After physical examination, ptomaine due to eating molded biloni * * * possible appendicitis involved. * * * General condition: temperature, 98; pulse rate 120. Respiration: rate 88; nutrition, etc., obese.” The doctor testified that on March 4, he again examined the boy and found his temperature around 104 degrees with the pulse slightly above normal. The fifth visit was on Sunday, March 5th, and he found him to be practically the same. His temperature was 97 degrees. He examined the chart kept by the nurses and found that the boy's pulse was up a little. He testified that he suggested calling a consultation with another doctor; that Dr. Sciaroni was in the building so it was agreed he should be the one; that both he and Dr. Sciaroni examined the boy about in the same manner as had been done in the past; that they found “quite a bit of gas in the abdomen and intestines and that condition indicated ptomaine poisoning and that after the consultation he was still of the opinion that his diagnosis was correct. The following morning, Monday, March 6, he visited the child again. He testified that he found his condition about the same as the night before; that on Tuesday morning, March 7, he examined him again, went over his chest, examined his throat, palpated and percussed the abdomen and found that there was not any more distention and not any rigidity; that the temperature was 97.8 degrees and the pulse 96; respiration 18; that again that evening he saw him and his face “had some pallor,” his lips were beginning to chap and he was “somewhat dehydrated” from the diarrhea and the vomiting. The following morning, Wednesday, March 8, at about 10 o'clock, he again examined him and his condition had not changed. He gave him some vitamins and ordered the discontinuance of the use of some narcotic drug (paregoric) because his pain did not seem so great. He testified that on Thursday, March 9, he found some rigidity; that he examined him again as before and about 11 o'clock a Dr. Morgan was called in at his suggestion; that Dr. Morgan examined Donald and made the “regular routine examination”; that in addition to the method of examination made by him, Dr. Morgan made a rectal examination; that Dr. Morgan suggested an X–ray be taken; that the X–ray plates were sent to another doctor for examination and report; that as a result thereof they decided that the boy had “an acute surgical abdomen”; that the mother and father were then told of the necessity of an immediate operation; that Dr. Morgan performed the operation and that he assisted with it; that it was then that he first discovered a “malformed” ruptured appendix; that it had produced an abscess and a condition of general peritonitis. Several hours after the operation the boy died.

Dr. Morgan, called as a witness for appellant, testified generally that he was called in at the time above mentioned; that he made the examination related by Dr. Calaway and ordered an X–ray; that the whole abdomen was tender and he “got no information on that examination”; that the blood count had already been taken when he arrived; that in addition to his own “impression” as distinguished from a diagnosis, he relied upon the X–ray diagnosis made by the doctor who took the X–ray picture. The witness was asked if he would “tell us what, in your opinion, created this condition of general peritonitis.” He responded: “Well * * * very obviously, after we got in, we found out what it was. * * * We had an abscess around the appendix.” He was then asked if his operative findings were at variance in any respect with his preoperative diagnosis. He answered: “Yes * * * there was a diverticulum in addition.” The witness was then asked if, assuming the patient had complained of the conditions above described since March 1st, he could tell how long that condition he had found after the operation had been progressing, and he replied: “No * * * you could not * * * because * * * there is nothing to show us that that was the original infection,” i. e., when the abscess began; that he could not tell whether the abscess was the original difficulty or some other condition led to the abscess, but he would say that the abscess had been there a greater length of time than a matter of hours.

The lay witnesses testifying for appellant were Mrs. Lashley, who testified generally that she told Dr. Calaway that part of the bologna she gave the boy for lunch was also eaten by herself and her husband and that they felt no ill effects therefrom; that at no time did Dr. Calaway make a rectal examination of Donald; that she visited the boy daily at the hospital; that on the morning of March 8, she saw Dr. Calaway at the hospital and that the doctor did nothing for Donald “only looked at him”; that no temperature was taken; that she discussed the boy's condition with the doctor, and that she said: “Donald is not getting any better to my estimation at all; he is very sick”; that the doctor said: “He is getting along just as well as can be expected under the conditions.” She then testified that the boy's “mouth was in terrible condition, his gums were getting dark, his lips were chapped and cracked; his teeth had a film over them. I couldn't wash them because they hurt so bad. He seemed to be having a terrible temperature. He hurt all over. His abdomen was infected. * * * I touched him and he says: ‘Don't touch me. * * * I hurt so bad, don't bother me. Don't move me.’ ” She then testified that the following day, March 9th, she found his condition worse; that during that day the doctor told her Donald “had to be operated on * * * that he had appendicitis”; that she told Dr. Calaway: “Well * * * if Donald has to be operated on, we want Dr. Morgan to do the operation”; that when Dr. Morgan came “he gave him a thorough examination” and he said: “It looks to me like his appendix has exploded but I can't tell because I have to have a picture”; that he ordered an X–ray picture; that Dr. Calaway remained there throughout the time; that after the operation Dr. Morgan told her that he “found general peritonitis; his appendix had exploded and had grown to his bowel. I found large abscesses and general peritonitis. * * * I also found a growth on his bowels.” The testimony of Mrs. Lashley was corroborated by that of Mrs. Lawless. In addition thereto she testified that she did not see Dr. Calaway take a blood or urine sample; that she asked Dr. Calaway if he was sure it was not appendicitis and that he replied: “No, I don't think it is. It is toxine poisoning.”

This was the substance of the evidence received. Upon this evidence the court granted a nonsuit. This appeal followed.

Before discussing the evidence, we deem it necessary in clarifying the position of both appellant and respondent to first quote the general rule set forth in Engelking v. Carlson, 13 Cal.2d 216, at page 220, 88 P.2d 695, at page 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. Comm., 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 appellant's contention that the negligence of the doctor was demonstrated by obvious facts or by a resort to common knowledge and therefore the jury had the right to decide without the aid of experts, that he in diagnosing and treating the patient, did not possess and exercise the required degree of skill. In support thereof she cites such cases as Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409, and McCollum v. Barr, 38 Cal.App. 411, 176 P. 463, 469. The latter case involved a fracture of the forearm. It was there contended that the defendant physician made a faulty and erroneous diagnosis of the injury in that he failed to have an examination by X–ray and failed to visually recognize the fracture. Experts testified in that case that the usual and recognized method of examination among the profession of such injuries for the purpose of diagnosis, was by X–ray, and the failure to use it would not be the exercising of ordinary skill and care. In passing upon the question the court said:

“But whether or not defendant should have used an X–ray in making his diagnosis was not the only issue. As to that the experts differed in opinion, and it was shown that surgery had been successfully practiced before the X–ray was discovered. Apart from the conflicting expert testimony on this point, there was testimony by two surgeons who examined plaintiff's wrist, one of whom was practicing in the locality, that the presence of a fracture was revealed readily without the use of the X–ray. May not the jury have been justified in finding that, by the exercise of ordinary skill and care, defendant would have discovered at some time during his seven weeks' treatment of plaintiff, what these surgeons saw at once upon examining plaintiff's arm without using the X–ray?”

After quoting from Hesler v. California Hospital Co., supra, it was said, 38 Cal.App. at page 427, 176 P. at page 469: “It may be doubted that the degree of skill and care of a physician in diagnosing and treating disease is the same as that of a surgeon in all cases of surgery. A broken or dislocated member of the body, usually discernible to the eye or the touch of the surgeon, presents an entirely different problem from internal disorders whose manifestations are obscure and often misleading.” (Italics ours.)

McBride v. Saylin, 6 Cal.2d 134, 56 P.2d 941, relied on by appellant, involved an injury to the eye by a piece of steel which had been imbedded in the vitreous. The defendant doctor in that case failed to discover its presence. It was testified by two other surgeons, who later removed it, that the customary means used by surgeons to determine the presence or absence of a foreign body in the eye are the ophthalmoscope and the X–ray. It was there held that the “fracture rule” in McCollum v. Barr, supra, applied, and that the evidence was sufficient to prove a prima facie case. Whether, under the history given the doctor of eating molded bologna and the symptoms manifested, he would have been justified in operating for appendicitis was, to say the least, a debatable question. If the doctor had operated for appendicitis and later discovered that the cause of the symptoms manifested was ptomaine poisoning, a grave question might have arisen as to his claimed negligence. When due care, diligence and judgment are exercised, a mere failure to diagnose correctly does not necessarily render a physician liable. It is not only necessary for the plaintiff to prove such mistake but also that the mistake was due to failure to exercise ordinary care, diligence and skill in making the diagnosis. Mere proof that the diagnosis was wrong would not in and of itself support a verdict. A physician is not held to a higher degree of responsibility in making a diagnosis than in prescribing treatment. Donahoo v. Lovas, 105 Cal.App. 705, 288 P. 698.

It is a recognized rule that the mere fact that some other physician might have elected to treat a case differently does not necessarily establish negligence. Jensen v. Findley, 17 Cal.App.2d 536, 544, 62 P.2d 430. We do not believe that the jury would have been justified in drawing upon their common knowledge as a basis for a finding that the respondent, in the instant case, was negligent in failing to have X–rays taken prior to March 9, 1939, and to say that his failure so to do was the proximate cause of the death of the child.

Dr. Logan Clendening, an eminent medical writer, in his book on “The Human Body,” at page 84, says:

“Treatment of appendicitis is not so completely summed up by saying ‘Surgery’ as is popularly supposed. Acute appendicitis is still a dangerous condition, and operation at the acute stage still has a high mortality. Removal of the appendix in the interval between acute attacks––for this reason called interval appendectomy––is, on the contrary, one of the safest of operative procedures. Many surgeons for this reason believe it is best to allow the patient to get over the acute attack before operating. The handling of the acute attack, however, requires a very definite knowledge. It consists in doing nothing * * *.

“The time for operating in a case of acute appendicitis is determined by the judgment of the surgeon.”

In the instant case the only witnesses called by appellant who qualified to testify as experts were the defendant and respondent doctor, called under section 2055 of the Code of Civil Procedure, and his consulting doctor, Dr. Morgan.

On examination of Dr. Morgan, appellant had him relate his general qualifications and the length of his practice in Fresno County. After testifying as to the facts above related he was asked by counsel for appellant: “And as a practicing physician and surgeon you are familiar, are you not, with the general ordinary standard of the ordinary care and skill of physicians and surgeons, practicing in this community?” Objection was made and overruled. He answered: “Yes.” Then followed this question by Mr. Carter: “In any case, doctor, suggesting the presence of appendicitis, in the exercise of that standard of degree of care in this community is a blood count indicated?” Respondent's counsel was then allowed to cross–examine the witness on the pending question and he asked the witness if he was appearing as an expert “merely on fact matters or in the field of what other people do?” After objection, considerable argument ensued. The doctor then answered: “I don't get it. * * * I am here, as I take it, to tell the truth about this case, as far as I know it. * * * I cannot call myself an expert on any of this stuff, what I am after is to tell just what I did, and why I did it, and if I can help out things, get things straight, I will be glad to do it. I am not an expert, I don't know how you term an expert.” Then followed a statement by Mr. Sweet to the court: “The matter is simply this, Your Honor: If this witness, who is subpoenaed here, desired to testify as an expert on the standards, of course that is his privilege.” In the absence of the jury the court then remarked: “* * * I think that if this witness, himself, were to ask for advice of the court on the matter in question, that it would be the duty of the court to advise him on the matter, but I think, in the absence of his request, that it probably would be improper for the court to step in and tell him what he should or could or could not do.” Then followed a statement by Mr. Hansen: “The reason I made the suggestion, Your Honor, so there won't be any question, the doctor asked me before he was called as a witness as to his rights in the matter, and he asked that Mr. Sweet and myself call the matter to the court's attention at the proper time. * * * He wanted to know what his rights were with reference to his own professional opinions and he asked me to tell Mr. Sweet to make the objection at the proper time because he did not want to be a party, as he told me, to any controversy. He testified to the facts. That is all he is supposed to do. So the court will understand our position and our motives in this matter.” The Court: “Now, if he will ask the court for its advice, the court will give it to him.” The objection was then overruled and the witness answered: “I cannot answer that Yes or No; but I can answer it. Let me explain a few things. * * * When we think of blood count as something which will indicate to us whether there is pus condition somewhere or reaction of the system to infection, it does not, in itself indicate appendicitis. We take those counts just to verify our idea that there is an infection process in the system, but we do not depend upon it to say we have appendicitis. * * * I have tried to explain to you, when we take counts, and I will also state a great majority of us do, when some of us do not.” Counsel for appellant then inquired: “Doctor, in dealing with appendicitis and in the exercise of the standard of care of an ordinarily prudent physician and surgeon in the community, will you state whether or not you experienced any preliminary symptoms of an onset of acute appendicitis?” After the court overruled an objection the witness answered: “We usually expect some distress, abdominal distress, yes. Vomiting, some temperature at times.” Question by Mr. Carter: “And so far as appendicitis is concerned or the onset of an attack of appendicitis, doctor, in the exercise of that standard of care that I refer to, what are the important symptoms of an attack of appendicitis?” Answer: “Well, pain, nausea and vomiting, as a rule, constipation; all those things are things you think of first, temperature, sometimes a rapid pulse, sometimes temperature and sometimes not, those all vary.” Question by Mr. Carter: “Ordinarily, doctor, is it not a fact that the temperature tends to run approximately parallel with the degree of infection?” Answer: “I can answer that by saying ordinary conditions, as we have been taught * * * we always thought that it did, that the more severe the infection, the higher the temperature ran; but I have had cases of my own experience where I operated, cases with no temperature whatever, and still find a bad appendicitis. * * * I am trying to tell you that our concept of appendicitis has changed a good bit in our survey of cases; and you have to take each case in its own light and its own symptoms and history and evaluate each one. That is why we cannot say that this is the absolute rule, that a temperature signifies the extent of the infection. * * * It is something which might help us.” Other similar testimony was elicited from the witness, over objection, generally as to what the presence of temperature signified; what factor constipation indicated, as well as the complaint of diarrhea. The doctor answered the questions propounded and stated that constipation was “a more constant factor by a great per cent” than “real high temperature”; that in a very great minority of cases had he encountered diarrhea; that it is the exception rather than the rule.

It becomes apparent from a relation of the testimony of this witness that appellant was not limited to any extent in her examination of the witness on the questions propounded. If she claims some limitation, there was no offer of proof that would indicate any prejudice in any ruling of the court. We do not see that appellant was aided by the testimony of this witness in her endeavor to establish that Dr. Calaway failed to exercise the standard of care and skill usually possessed and rendered by others of his profession in the same locality under similar circumstances at the time.

Counsel concede that the next point attempted to be raised has not been directly decided in this state. Appellant called the respondent doctor as her witness under section 2055 of the Code of Civil Procedure, as related, in an endeavor to show by expert medical testimony that he failed to use that degree of care, skill and judgment ordinarily exercised by those practicing in the same locality. Certain questions were propounded in this respect, such as: “It is your practice, is it not, doctor, if you find an infected appendix before perforation, to operation. * * *” Objection was then made on general grounds and sustained. The next question was: “What is your practice with reference to an infected appendix when you feel the appendix is infected?” Objection was made on the same grounds with the additional objection that under section 2055 of the Code of Civil Procedure the defendant could not be called upon to give expert testimony, and particularly upon matters of opinion in the medical field. After consideration of certain authorities (See Anderson v. Stump, 42 Cal.App.2d 761, 109 P.2d 1027; Osborn v. Carey, 1913, 24 Idaho 158, 132 P. 967; Forthofer v. Arnold, 60 Ohio App. 436, 21 N.E.2d 869, 872; Pennsylvania Co. for Insurance on Lives v. Philadelphia, 262 Pa. 439, 105 A. 630, 2 A.L.R.1576; 5 Ann.Cas. 993; Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829, 25 L.R.A.,N.S., 1040, 131 Am.St.Rep. 1055, 17 Ann.Cas. 715; People v. Conte, 17 Cal.App. 771, 783, 122 P. 450, 457; People v. Barnes, 111 Cal.App. 605, 295 P. 1045; and Verdelli v. Gray's Harbor, etc., Co., 115 Cal. 517, 47 P. 364, 778, the court inquired if either side desired “to present anything further before the court rules on it?” No offer of proof was made. The objection was sustained. Counsel contends that the rulings of the court were prejudicially erroneous.

The questions propounded of the defendant doctor in the instant case under section 2055 of the Code of Civil Procedure are fully set forth above. It is apparent the first question propounded, as recorded in the reporter's transcript, was either incomplete at the time the objection was made or if it was not, it was unintelligible. We cannot determine from the next question, as propounded, what answer was sought to be elicited which appellant could reasonably say was material or relevant to the facts in the instant case and would be of benefit to her in meeting the burden placed upon her. The objection to the question as propounded should have been sustained. In this form, the query would not present the question attempted to be raised on this appeal. The ultimate question to be determined was what the defendant did on this particular occasion and whether what he did was consistent with that reasonable degree of learning and skill usually possessed and rendered by others of his profession (“a hypothetical doctor”), in the same locality under similar circumstances, having regard to the state of scientific learning at the time. McBride v. Saylin, supra; Criss v. Angelus Hospital Ass'n, 13 Cal.App.2d 412, 56 P.2d 1274. After the objection to the question was sustained, appellant made no offer of proof as to what she expected to prove by the question or what the anticipated answer would be. Prejudicial error will not be presumed in a ruling of the trial court sustaining an objection to the introduction of evidence. If error is alleged to exist it must be made to appear affirmatively in the record, and where a question to which an objection is sustained does not itself indicate that the answer to it will be favorable to the party seeking to introduce the testimony and upon an issue material and relevant, before the ruling will be reviewed on appeal by this court an offer of what is proposed to be proved must first be made to the trial court so that this court can determine whether the proposed evidence would be material or relevant and beneficial to the party offering the evidence. Thompson v. Buffums', Inc., 17 Cal.App.2d 401, 62 P.2d 171; Hebrard v. Jefferson G. & S. M. Co., 33 Cal. 290; In re Claire, 9 Cal.App.2d 749, 753, 50 P.2d 1070; Swearingen v. Dill, 21 Cal.App.2d 151, 68 P.2d 388. Phillips v. Powell, 210 Cal. 39, 290 P. 441, is not applicable here, as contended by appellant. It was there held that an offer of proof was not necessary where the question as propounded showed the materiality of the testimony attempted to be elicited.

Since the question propounded, according to the record before us, does not sufficiently present the question raised, we do not feel compelled to decide whether the defendant doctor could have been compelled to testify as a medical expert, over objection, when called to testify under section 2055 of the Code of Civil Procedure. Therefore, there appears to be no prejudicial error and no substantial testimony given by the doctors that would permit a recovery against the respondent based upon a cause of action for malpractice.

Appellant failed to show by expert testimony the essential elements mentioned in the case of Engelking v. Carlson, supra, particularly in the failure of appellant to show that the respondent, having the degree of learning or skill ordinarily possessed by other physicians of good standing practicing in the same locality, did not “use ordinary care and diligence in applying that learning and skill to the treatment of his patient.” It seems clear to us that the matter in issue, under the cases cited, was one within the knowledge of medical experts only, and not one within the common knowledge of laymen.

Respondent's contention that appellant has no right to maintain the action is not meritorious. From examination of the record it appears that that point was waived at the trial, at least as far as this appeal is concerned. Counsel for respondent moved for a nonsuit on the additional ground that under section 376 of the Code of Civil Procedure Mrs. Lawless was not a party interested. After the motion was made the court remarked that it had come to the conclusion that there was no expert testimony in the case to show that the defendant possessed the degree of learning or that he did not use the skill ordinarily possessed by other physicians of good standing practicing in the locality, and for that reason granted the nonsuit. It then stated that it then made it unnecessary for the court to pass upon the other ground that was raised under section 376 of the Code of Civil Procedure. Counsel for respondent then remarked: “I don't think it is of any importance at this time * * * We will withdraw the point, Your Honor, at present.” From the record before us, it becomes obvious that the additional ground now urged was withdrawn and waived in the trial court, at least for the purposes of this appeal. We do not think that the respondent should be permitted to again present that point now. Ernst v. Searle, 218 Cal. 233, 22 P.2d 715.

Judgment affirmed.

GRIFFIN, Justice.

BARNARD, P. J., and MARKS, J., concurred.