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District Court of Appeal, Third District, California.


Civ. 7484.

Decided: August 03, 1948

Gilbert L. Jones and Daniel S. Lane, both of Stockton, for defendant-appellant and respondent. Miller & Kroloff and Forrest M. Greenberg, all of Stockton, for plaintiff, respondent and appellant.

Both of the parties hereto have appealed—the defendant from a judgment in favor of plaintiff, and the plaintiff from the order of the trial court granting a new trial on the issue of damages alone after he had failed to consent to a reduction of the verdict of the jury from $17,500.00 to $10,000.00.

The record discloses that as a result of an accident plaintiff, who was then about sixty-two years of age, suffered a double comminuted fracture of the lower left leg, one of the fractures being compounded. He was taken to the Buchanan Hospital in Lodi and upon his request defendant was called to attend him. The leg was placed in a plaster cast by the defendant after X-ray pictures were taken showing the bones to be in aligment. Following the application of the cast further X-rays were taken, which showed that although the leg was in satisfactory position there had been a slight change in the alignment. During the progress of plaintiff's hospitalization further X-rays were made showing the alignment to be progressively changing so that at the time of trial the upper fracture had an angulation of approximately thirty degrees and the lower fracture of approximately five degrees in the opposite direction; that is the leg bowed both to the rear and to the side. The leg is now shortened one and one-quarter inches; there is atrophy of the muscles of the leg and arthritis. He states that because of the extreme pain caused by this condition he cannot place his weight upon the leg and therefore must use a cane. According to the testimony of plaintiff's expert witness this condition also has resulted in his total disability as a rancher. The defendant himself testified that the deformity thus produced was permanent and that at the outset of the treatment he had anticipated permanent disability of the degree and in accordance with the results obtained. However, a witness for defendant testified that the disability was about twenty-five per cent. Defendant further testified that he decided against the use of any traction on the leg because of possible complications, and none was ever used.

Appeal of Defendant and Appellant Owens.

As grounds for reversal of the judgment the defendant contends (1) that because plaintiff's expert witness was not qualified there was prejudicial error in the admission of his testimony as to the standard of care; (2) that the court erred in instructing the jury on the applicable standard of care, and (3) that further error was committed in refusing to instruct the jury as requested by defendant in regard to the X-rays which were introduced in evidence, and in permitting the jury to examine them. Except as indirectly included in his first contention no question is raised by defendant as to the sufficiency of the evidence to sustain the verdict of the jury nor was this question relied upon by the trial court in its order granting defendant's motion for a new trial.

Concerning defendant's first contention it is argued that the plaintiff's expert witness, Dr. Morrison, was not qualified to testify to the standard of care of a general medical practitioner in the city of Lodi in that he knew no doctors in that city and knew nothing of the facilities available there, his knowledge of professional standards being limited to the area surrounding the neighboring communities of Oakdale, Modesto and Turlock, located in Stanislaus county, and Escalon located in San Joaquin county. The qualifying examination of the witness does show that with one exception he knew no doctors in Lodi, although he knew of the facilities of the hospital there, and that he had practiced in the communities previously named and at present maintains his office in Oakdale, about forty miles distant from Lodi.

Defendant's argument admits that under the rule as enunciated in the more recent cases of Warnock v. Kraft, 30 Cal.App.2d 1, 85 P.2d 505 [Pasadena and Los Angeles]; Lewis v. Johnson, 12 Cal.2d 558, 86 P.2d 99 [Long Beach and Los Angeles] and Sales v. Bacigalupi, 47 Cal.App.2d 82, 117 P.2d 399 [Oakland and San Francisco], a doctor practicing in a city contiguous to a metropolitan area may testify to the standard of care in a city likewise contiguous to the same area. But he contends that there the issue is the standard of care in a rural community a doctor may testify only if he has knowledge of the standard of due care in the particular rural community or locality where the alleged negligent act was committed and relies most wholly upon two cases, McNamara v. Emmons, 36 Cal.App.2d 199, 97 P.2d 503, and Bickford v. Lawson, 27 Cal.App.2d 416, 81 P.2d 216.

At the outset, and if it be necessary, both cases may be distinguished from the present. In the first case the appeal was by the plaintiff from an adverse verdict of the jury and was predicated on the alleged error in the giving of certain instructions. Necessarily the reviewing court was compelled to view what is termed ‘flatly contradictory’ evidence, as we must in this case, in the light most favorable to the verdict. Secondly the two expert witnesses produced by plaintiff therein were residents of San Bernardino and were found to be incompetent to testify to the standard of care in Ontario, the reason given being that there was no testimony as to the similarity between the practice in the two cities. And lastly, it appears that even if such was not the case the portion of the opinion quoted and relied upon by defendant herein is dictum since it in no way was necessary to a determination of the issues in the cited case.

In the Bickford case the alleged difficulties of plaintiff appear to have arisen originally through her failure to follow the suggestions of her doctor to go to a hospital where X-ray equipment was available for the proper diagnosis of a fractured leg, there being, strange as it may seem, no X-ray equipment available in the Glenn County Hospital. On review this court agreed with the conclusion of the trial court that the expert called by plaintiff was not competent to testify and quite properly his testimony was stricken ‘for the reason that he admitted he did not know what the practice of other physicians was in reducing and treating such fractures in that or any other locality.’ 27 Cal.App.2d at page 424, 81 P.2d at page 220.

In the present case plaintiff's expert witness, Dr. Morrison, testified that the standard practice with regard to fractures is uniform throughout the state; that the defendant did not follow standard practice; that he failed to use any form of traction which was indicated by the progressive angulation of the leg as shown by the X-rays, and that he removed the cast prematurely.

In this day of rapid transportation and communication there appears to be no reason why enlightened medicine with much of its improved practices and facilities should not be available to all, thus necessarily relaxing to a certain extent and subject to the circumstances surrounding the particular case, the historical rigidity of the standard of care rule. This is borne out by the testimony of the physicians herein which shows that at least in so far as the practitioners within the geographical area involved are concerned they would be the last to state that such is not the case. Here the defendant testified he maintains an extensive medical library to which he constantly is adding technical books, that he takes and reads all of the medical journals which include articles on various special subjects such as orthopedics; that he attends all of the county and state meetings of his profession, participating in all of the lectures that are there given and that on at least one occasion and possibly two he took a week intensive course on orthopedics at the University of California. In other words nothing appears from his testimony or from the record as a whole which would or did hamper the defendant either by training or available facilities in his diagnosis and treatment of the plaintiff. See Viita v. Dolan, 132 Minn. 128, 155 N.W. 1077, L.R.A.1916D, 644, Ann.Cas.1917E, 678. Even if the contrary were true and he had stated that he read no current medical periodical or text, participated in no way in the mutually beneficial educational activities of his profession nor took advantage of any of the many available post graduate or refresher courses, would he or any other practitioner have the temerity to state that by reason of such self-imposed isolation he might thereby blind himself to the progress of his profession and by so doing evade the obligations and duties of his chosen field? Surely such is not the case. In its origin when, because of various and readily apparent reasons uniform dissemination of professional knowledge was impossible, the standard of care rule may well have been supported by valid and substantial reason. However, under present day conditions the reason for the rigid application of the rule as now advocated by defendant under the facts herein disclosed becomes a mere excuse unfounded (See McBride v. Saylin, 6 Cal.2d 134, 135, 56 P.2d 941), which if carried to its ultimate might well preclude an injured party from ever maintaining a cause of action.

If what we have said heretofore is at all well founded, the only remaining basis of defendant's contention that the testimony of Dr. Morrison should have been excluded, is an arbitrary geographical line separating Lodi, Oakdale, Stockton, Turlock, Modesto and Escalon, neighboring towns which the evidence shows are almost identical in regard to the kind of medical services available. In a case quite similar to the present our Supreme Court condemned a like contention, stating that to exclude expert testimony on such a ground ‘would be a misuse of the rules of evidence and an unjustifiable emphasis on empty technicalities'. Lewis v. Johnson, 12 Cal.2d 558, 86 P.2d 99, 101. The court stated further that ‘common knowledge, as well as the testimony of the doctors on both sides, tells us that the method used in treating this particular kind of fracture was one in use throughout the world.’ (Italics added.)

In the present case the same situation obtains. All of the medical witnesses testified as to the standard practices generally in such cases although disagreeing upon the application of the various methods to the particular case. It further was established by defendant's own witnesses that the standard of care in Lodi was as good as elsewhere in the state, and the average physician in Lodi as proficient as the average physician in Stockton. And lastly, Dr. Morrison did not encompass the world, he merely testified that the treatment of fractures was uniform ‘throughout the state’. (Italics added.)

Defendant's second contention relates to the giving of the following instruction, which was taken verbatim from California Jury Instructions, Civil, (BAJI) where it appears as #214:

‘By undertaking professional service to a patient a physician and surgeon impliedly represents that he possesses, and it is his duty to possess, that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing practicing in the same locality.

‘If he undertakes such a service in a special branch of medical, surgical or other healing science, and if at that time and in the same locality there are members of his profession who specialize in, and limit their practice to, that particular branch of the healing profession, it is his duty to possess that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing who engage in that special practice in the same locality.

‘It is his further duty to use the care ordinarily exercised in like cases by reputable members of his profession practicing in the same locality; to use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed. A violation of any of those duties is a form of negligence which we call malpractice.

‘If you should find that the defendant failed in any of the duties I have mentioned, and that such failure was a proximate cause to the injury of the plaintiff, then your verdict must be in plaintiff's favor.’

The defendant's attack upon the instruction is directed primarily at the second paragraph thereof which he characterizes as a ‘failure to differentiate between the recognized or unquestioned duty of a general practitioner to refer a case to a specialist when the ordinarily skilled practitioner would have done so and the duty imposed by the instruction, which requires every practitioner to be a specialist.’

He further argues that the record is barren of any evidence indicating that the ordinary physician in Lodi would not have treated plaintiff, but would have referred him to a specialist.

It appears from an examination of the attacked instruction that it does not, as contended by defendant, impose upon the general practitioner an affirmative duty of care equal to that of a specialist. The instruction merely states that if the general physician undertakes a specialized service and if in his locality there are those who specialize or whose practice is limited to that particular branch of the healing professions then it is his duty ‘to possess that degree of learning and skill ordinarily possessed by’ those who specialize in such practice in that locality. The instruction does not attempt to cover all cases but limits the application thereof to those localities where there are specialist available in that particular branch of medicine.

It cannot be denied that the evidence without contradiction establishes the fact that the fracture suffered by plaintiff was exceptionally severe. It was a compounded comminuted fracture of the tibia and fibula bones of the leg, which was described by defendant's counsel as a ‘very rare sort of a situation’, by the defendant physician as a ‘very complicated fracture in the leg’ and ‘one of the most difficult fractures that we can treat of the lower leg’, and as the orthopedic specialist called by defendant stated, ‘double fractures like that are quite unusual’. In other words the record conclusively shows that here a general practitioner confronted with a ‘very rare * * * situation’, and in no emergency, undertook to treat a very ‘complicated’, ‘difficult’ and ‘unusual’ compounded comminuted fracture. These uncontradicted facts would seem to bring the case squarely within the statement of the rule appearing in Restatement, Law of Torts, Vol. 2, at page 805, where the text, by way of illustration, assumes a factural situation in which a general practitioner attempts a brain operation, and states: ‘* * * In such a case, a general practitioner would be negligent if he undertook the operation, except in an amergency when no more highly skilled surgeon was available or unless he disclosed the need of special ability and his lack of it to his patient and his patient insisted upon his performing the operation.’

The illustration used by the trial judge in his memorandum opinion is similar to that found in the Restatement of Torts, supra, and likewise appears to be particularly apropos. There he observed that ‘instead of treating a complicated fracture a general practitioner undertakes to perform a delicate operation on the eye and as a result the patient is blinded, would anyone contend that his only duty was to use the ordinary care and prudence that the other general practitioners used in the same community when there were men who specialize in that field and whose services and skill the patient should have received? The general practitioner, and not the patient, is in a better position to know when the services of a specialist are called for.’

It is true no orthopedic specialists were available in Lodi. But in Stockton, a distance of twelve to fourteen miles, there were two available, one of whom testified for the defendant, and who, defendant testified, had been called in by him for assistance in orthopedic cases on several occasions. And as we may take knowledge of distance between Lodi and Sacramento we might go a step further, although outside of the record, and observe that in a much larger city approximately only thirty miles distant, there are several specialists in this field.

This is a day of specialists. A condition unquestionably brought about by the rapid and highly technical advancements in the entire field of medicine, advancements so complex and involved as to make it impossible for one to keep abreast of them all. Therefore under conditions and circumstances such as are disclosed herein it necessarily would seem to follow that the general rule must be that, ‘as a part of the requirements which the law exacts of general practitioners of medicine and surgery, or other schools of healing, if, in the exercise of the care and skill demanded by those requirements, such a practitioner discovers, or should know or discover, that the patient's ailment is beyond his knowledge or technical skill, or ability or capacity to treat with a likelihood of reasonable success, he is under a duty to disclose the situation to his patient, or advise him of the necessity of other or different treatment.’ 132 A.L.R. 392.

Lastly defendant contends that he was materially prejudiced by the alleged error of the trial court in allowing the jury to examine the X-rays of plaintiff's injuries, in that the effect of allowing such an examination without a qualifying instruction necessarily emphasized the angulation of plaintiff's leg and caused the jury to pass over the real issue of the standard of care used by defendant. Such contention is wholly without merit. The X-rays were identified, explained and interpreted at length by the defendant doctor and by the expert witnesses of both parties and therefore were properly admitted in evidence, and being properly admitted in evidence we know of no rule under the circumstances whereby a jury may be prohibited from viewing such evidence, nor do the two cases cited by counsel (Hollis v. Ahlquist, 142 Wash. 33, 251 P. 871; Vale v. Campbell, 123 Ore. 632, 263 P. 400; 77 A.L.R. 946) hold to the contrary.

Appeal of Respondent and Cross-Appellant Sinz.

The cross-appeal of plaintiff relates solely to the order of the trial court denying defendant's motion for a new trial on the condition that within the time specified therein plaintiff file a written stipulation remitting all damages in excess of $10,000.00 and agree to a reduction of the verdict to that amount, but if such agreement was not filed as specified a new trial would be granted on the question of damages alone.

The question so presented is identical with that raised in the recent case of Casaretto v. DeLucchi, 76 Cal.App.2d 800, 174 P.2d 328, 336. There a like qualified order as entered did not specify either insufficiency of the evidence or any other ground as a basis therefor and hence that specific ground was disregarded. Sec. 657, C.C.P. Therefore as in each case the sole reason for the order patently was the amount of the damages the only statutory basis would be subsection 5 of said section, which provides that a new trial may be granted on the ground of ‘excessive damages, appearing to have been given under the influence of passion of prejudice’. Hence the conclusion of the court on the identical question so raised in the Casaretto case is as pertinent here as it was there:

‘A new trial may not be granted on this ground merely because the verdict seems large, but only when it appears to have been given under the influence of passion or prejudice. The trial court may interfere with the verdict on this ground only where the verdict is so disproportionate to any reasonable limit of compensation warranted by the facts as to shock the sense of justice. Thus if the evidence before the trial court is conflicting, and there is substantial evidence to sustain the award, no right to grant a new trial on the ground of excessiveness of the verdict exists where insufficiency of the evidence is not also specified as a ground of the order. These principles are all well settled.’ (Citing authorities.)

For the foregoing reasons the order granting the new trial is reversed as is the judgment entered pursuant thereto, and the case is remanded with instructions to the trial court to enter judgment in accordance with the verdict of the jury.

PEEK, Justice.

ADAMS, P. J., and THOMPSON, J., concur.