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District Court of Appeal, Second District, Division 1, California.


Civ. 15285.

Decided: October 21, 1946

J. M. Clements and William V. Krowl, both of Los Angeles, for appellant. Reed & Kirtland, of Los Angeles (Henry E. Kappler, of Los Angeles, of counsel), for respondent.

This is an action for damages alleged to have resulted from malpractice on the part of defendant in the treatment of an injured arm. At the conclusion of plaintiff's case, a motion for a nonsuit was granted and from the judgment that followed, plaintiff appeals.

The complaint alleges: ‘That on the 4th day of January, 1944, the plaintiff received an injury to her right arm and did on said date employ the defendant to treat her injuries, and the said defendant from that time on, and during the months of January, February and March of 1944, continued to treat, operate on, and advise plaintiff with reference to her injuries, and the said defendant did so carelessly, negligently and unskillfully operate on, treat and advise plaintiff that he caused plaintiff's right arm to be severly and permanently injured in that her right shoulder, right elbow and right hand have become permanently stiff and disabled and have caused plaintiff to suffer grievous mental and physical pain and suffering and permanently injured her in her health, strength and activity, * * *.’

At the trial, plaintiff examined defendant under section 2055, Code of Civil Procedure, which, together with plaintiff's testimony, constituted plaintiff's case.

It is contended by appellant that:

‘I. It is well settled that a plaintiff in a malpractice action can establish his case by the testimony of the defendant therein.’

‘II. Wrongful treatment having been proven as given, the question of proximate cause is a question of fact for the jury.’

‘III. The doctrine of Res Ipsa Loquitur applies where the plaintiff was under the influence of an anaesthetic at the time of the injury.’

Respondent, ‘concedes that in a malpractice action the plaintiff may be able to establish a case by the testimony of the defendant himself,’ and also concedes, ‘that where a patient is unconscious on an operating table and receives injury to a healthy portion of his body in no manner related to the surgical or operation procedure the doctrine of res ipsa loquitur may apply,’ but, it is contended by respondent, ‘These rules of law, however, have no application to the facts in the case at bar’.

In connection with the three above-mentioned contentions, appellant argues that, ‘From the facts and authorities, as heretofore set forth, it appears that malpractice on the part of the defendant was proven by reason of the fact that the defendant, according to the standards established by his own testimony, manipulated the plaintiff's arm prior to the time when there was sufficient callous formation in the fractured elbow, and, furthermore, defendant was guilty of malpractice in that he forcefully and violently manipulated plaintiff's fractured elbow beyond the point of tolerance.’ There was no evidence that the defendant departed from the routine treatment in the circumstances; there was no evidence that defendant failed to exercise that degree of care and skill customarily used by the profession in and about the locality where the treatment was administered. ‘According to the standards established by his own testimony,’ as quoted above, manifestly, is appellant's motion or opinion of such testimony. And it is on such an assumed premise that appellant's conclusions are based. Appellant relies on Anderson v. Stump, 42 Cal.App.2d 761, 109 P.2d 1027, 1031. There, as pointed out in the opinion, the damage resulted from the failure to use proper and necessary precautions to prevent infection during the treatment of the patient. The court declared: ‘The foregoing quoted testimony particularly considered in connection with the question as to whether the glove used was or was not sterilized, and with all of the other circumstances shown by the evidence and especially the circumstance that the infection developed within the vagina, the question as to whether the glove used was properly sterilized, or was sterilized at all, became one peculiarly within the province of the jury to determine, as did also that as to whether defendant wore a sterilized gown or his street clothes.’ Obviously, no expert testimony is necessary in such circumstances. The Anderson case, supra, at page 765 of 42 Cal.App.2d, 109 P.2d 1029, cites Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 12 P.2d 744, 13 P.2d 905, and quotes therefrom the following: ‘While it is the general rule that the propriety or impropriety of particular medical treatment can only be established by expert medical testimony, this rule is subject to the exception that, if the particular matter is one of general knowledge, expert evidence is not necessary.’ Also it is said in that case: ‘We will likewise take judicial knowledge of the danger of infection of a woman about to give birth to a child from a vaginal examination performed with unsterilized hands.’

In the within action, and in connection with the treatment administered, there were no matters of common knowledge which a jury or a court could properly take into account in deciding the issues. The fact, if it is a fact, that the patient fails to respond to treatment, or that the results of an operation aredisappointing, does not necessarily establish as a fact, the failure to exercise that degree of care and skill customarily used by the profession in and about the locality where the treatment is administered.

In the light of the record, it was not error to grant the motion. The judgment is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.

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