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

FARBER v. OLKON et al.*

Civ. 19008.

Decided: July 25, 1952

Fred Girard and Joseph D. Flaum, Los Angeles, for appellant. Reed & Kirtland, David Sosson, and Henry E. Kappler, Los Angeles, for respondents.

In an action for damages allegedly resulting from the negligent administration of a shock treatment by defendant physicians, appellant George Farber was denied relief when the trial court directed a verdict in favor of respondents. He now assigns as error the trial court's refusal to submit the case to the jury contending the evidence establishes as a matter of law (1) that there was no lawful consent to defendants' administration of electro-shock therapy; (2) that he was entitled to recover under the doctrine of res ipsa loquitur; (3) that there is ample direct proof of respondents' negligence such as to require a factual determination thereof.

Appellant suffered from chronic schizophrenia with hebephrenic and paranoid features with progressive mental deterioration. The incipient stages of his infirmity appeared at the age of 19. At the time of his injury in 1948 he was 32 years of age. He was at his father's direction treated in various institutions until 1944 when by court order he was confined in the State Hospital at Camarillo. He remained until August 8, 1947, when he was paroled to the Los Angeles Neurological Institute under agreement with the father that he would care for and maintain George and cause his return to the Camarillo hospital at his own expense. On the same day the State Hospital caused George to be transported to respondent, Los Angeles Neurological Institute herein referred to as the ‘Institute.’ He had been there only three days when with Dr. Olkon's permission the father took George for a ride. He did not return the long suffering patient to the Institute until August 29, 1948. In the interim George had been kept at the father's home, in a sanitarium at Downey and in the Temple Hospital. At the latter place a lobotomy1 was performed by Dr. Seletz with the father's consent on June 27, 1948. The doctor learned then that George had ‘no discipline, rambles in speech, thoughts are disjointed, seldom completes a sentence, refuses to wash his hands or bathe or to use a toilet, has had some 80 shock therapy treatments; his behavior is stereotyped; will not answer a question.’ After leaving Dr. Seletz, George's condition deteriorated; he became more easily upset and disturbed. After conferring with Seletz on the advisability of electro-shock treatments, the father returned George to the Institute and reported on the patient's experiences and current, agitated and confused condition. Influenced by the opinion of Dr. Seletz that shock treatments are sometimes effective after a lobotomy and by the opinion of Dr. Wayne that the patient was worse than a year before, the father signed a consent to the administration of the shock. The first treatment on August 30 appeared to cause favorable results. But during the course of the second on September 1 when the current was applied and while George was in a convulsive state the doctor heard a snapping sound. It was then the patient's legs were broken.

The unfortunate boy was thereafter removed to the Temple Hospital where he underwent three separate operations and remained until January 26, 1949. He was then taken to the Golden State Hospital and thence to his father's home. In March, 1949, the father on demand of the authorities at the Camarillo hospital returned George to that institution. During his absence the patient was provided with such medical and surgical care as he required.

We are now to determine (1) whether the shock treatment of September 1, 1948 was an unwarranted invasion of appellant's right to be secure against the battery of another, and, if it was lawfully undertaken, (2) whether it was negligently administered.

The State Hospital at Camarillo paroles about 450 patients monthly. Pursuant to such practice, its staff of physicians convened April 24, 1947, to discuss the possibility of a parole for appellant. They considered the father's request for George's parole to a sanitarium, the son's unimproved mentality, his inability to serve himself, his filthy habits, and the father's lack of insight into George's mental condition. They recommended indefinite parole to a licensed sanitarium. They thereupon paroled him to the Los Angeles Neurological Institute, a mental hospital licensed pursuant to Rule 21 of the rules relating to management, conduct and personnel of institutions under the jurisdiction of the Department of Institutions. It was established by an officer of the Camarillo hospital that it was customary prior to August, 1908, for parolees to be furnished medical and custodial care by either a state-licensed institution or the person to which they were paroled; that George was paroled to the Institute upon the father's written agreement to maintain his son. Thereupon, both the father and the Institute were obligated to see that the patient received such therapeutic care as he might reasonably require as well as sustenance, shelter and clothing. At the time of the parole, the superintendent of the State Hospital knew that the Institute was a place where medical and psychiatric care could be furnished. At the same time it was a rule applicable to all licensed, mental hospitals that all parties2 who reside within them ‘must be supervised and visited by a regularly licensed physician and treatment must be outlined and shown in the records.’ Also, during the term of his parole there was no other place authorized to furnish George medical care.

In view of the facts above related it is a far-fetched notion that the administration of the shock treatment to appellant was an unauthorized abuse of his body. The State Hospital did all within its power to authorize the parole and to obligate both the Institute and the father to render medical and custodial care to its patient. If it was a custom for state-licensed institutions to furnish medical care to such parolees as might be sent to them from Camarillo, upon what theory should the Institute have withheld shock treatments from appellant?

Doctor Wayne found that George's condition had grown worse than it was at the time of parole. Because the shock treatment was recognized as a cure or a palliative for such mental conditions as that suffered by appellant, because the first treatment produced no unfavorable reaction, and because of the deterioration following the recent lobotomy, the doctor opined that the second treatment should be administered. Dr. Thompson testified that the prompt administration of the electric shock treatment was necessary as a means of retaining the advantage gained by virtue of the brain surgery. George was suffering an increasing mental strain which, Dr. Thompson testified, is an emergency.

In view of the proof above outlined, how can it be said that respondents, without license, wilfully assaulted the body of appellant? If the Superintendent of the Camarillo hospital specified the Institute as the place for George to go while on parole and authorized it to render medical and custodial care to the patient, how may it be said that the Institute and its physicians unlawfully broke his bones? If the breaking of the femures is a frequent incident of such treatment, how can that fact make the injuries an occurrence unwarranted? That the father abducted his son from the Institute and kept him out for a year is not material to the fact that in September, 1948, the authorities of the Institute deemed it good practice to administer the shock. While George was absent from the Institute, the authorities at Camarillo knew of his ‘escape’ but took no steps to terminate his parole. In fact they made no attempt to revoke it until seven months after his injuries. Nothing could be clearer than that by its conduct in paroling appellant and by its silence while he was absent from the Institute the State Hospital impliedly authorized medical and other therapeutic instrumentalities to be applied for its paroled patient. Any licensed physician called to administer to George was at liberty to exercise his own judgment as to what was best for him so long as the practitioner was as learned, skillful and careful as the average of his profession practising in the community where the patient was treated. Since the authorities at Camarillo had given George 28 shock-therapy treatments during his confinement there and knew his reactions thereto, inasmuch as they prescribed no restrictions against its being applied to appellant it was a fair assumption by Dr. Wayne at the Institute that shock treatments should be given if indicated. He and his associates were entitled to rely upon the parole agreement and upon the authority conferred upon them to exercise their own judgment, particularly when George was accompanied by his father. Because the latter owed the highest duty to care for his unfortunate son, and because respondents believed that any gains resulting from the lobotomy might more likely be conserved by shock treatment, they were justifiably confident that their course was correct.

There was no want of authority in the Superintendent of the State Hospital to parole appellant. That official may not only parole an inmate confined for his incompetency but he may parole him to a private home or sanitarium regardless of the language of the commitment so long as his parole is given ‘under general conditions prescribed by the Department of Mental Hygiene.’ (Welfare & Institutions Code, sec. 6726.) All statutory requirements having been observed, no vice can be found in the conduct of the Superintendent in granting appellant's parole. Moreover, the broad discretion granted the Superintendent in such matters by Rules of the Department of Institutions (Rule 21) places his act beyond the reach of an appeal. Not only were no restrictions included in the parole, but in the letter signed by the father, the latter agreed ‘to care for and maintain him.’ Because of such agreement as well as the law requiring a father to care for and maintain an incompetent adult child, Civ.Code, sec. 206; see also Anderson v. Anderson, 124 Cal. 48, 56 P. 630, 57 P. 81, respondents could offer no reasonable excuse not to administer to appellant as he appeared at the Institute on September 1, 1949. By virtue of the universal rule that the parent of a minor child is vested with the power to give such consent as is necessary to enable a physician to proceed with non-emergency treatment, 70 C.J.S., Physicians and Surgeons, § 48, p. 968, it is presumed that the child is not competent fully to realize the possible consequences of surgery or medical treatment. Hence, the parent who is most concerned with the patient's well-being is properly vested with the authority to make the decision. It should logically follow that where an adult child is incompetent and the parent is duty bound to maintain him this duty should also encompass the authority to authorize whatever medical treatment may be necessary. To hold otherwise or to require the formal appointment of a guardian before an effective consent could be given to medical treatment would be to place prohibitive restrictions in the way of sound treatment for those in the miserable condition of appellant.

Answering appellant's contention that it would be contrary to public policy to permit the Superintendent to delegate to the father authority to treat his son, Mr. Farber did not attempt to administer medical aid to George nor did the Superintendent suggest that authority be given for him to do so. The father was merely authorized to obtain for appellant such medical care and attention as might be reasonably necessary from a licensed physician. Although the father might have chosen another physician following the lobotomy, he returned appellant to the Institute to which he had been paroled and which was considered certain to abide by the rules and statutes relating to the practice of medicine. Any argument that the best interests of the incompetent requires that the Camarillo authorities be informed of contemplated medical treatment and that their authorization be first procured ignores the fact that the medical care is being rendered by practitioners who must be duly licensed and qualified to practice. These safeguards which the state has thrown around the medical profession are deemed ample to protect the patient.

Also, sections 5750 and 5750.5 of the Welfare and Institutions Code which inhibit the admission into a private mental institution of an ‘involuntary patient’ except upon the certificate of a doctor ‘not financially interested’ in such institution have no application to the instant case. Those sections were designed to protect an incompetent from irresponsible or dishonest operators who might detain a person not mentally ill. A doctor's certificate may be some protection against such places. The character of the Institute was known to be reputable. Appellant had been mentally unsound for over 20 years and was a parolee of the State Hospital for the insane.

Appellant conceives that by the terms and implications of the father's letter, the latter acquired no power over the son and that his agreement meant no more than that he would supply George with only shelter, food and clothing as required by Civil Code, section 206 and nothing more. Such an assumption is a violent interpretation of the cited statute. While a parent is not obliged to maintain his normal, adult child, a fair interpretation of section 206 would compel a parent to the extent of his ability to furnish such medical and surgical care as would be reasonably required for the health and well-being of an adult child who is ill and without property. See In re Gablers' Will, 140 Misc. 581, 251 N.Y.S. 211, 218. ‘Maintain’ is defined to mean: bear the expense of; to support; to keep up; to supply with what is needed. Alexander v. Parker, 144 Ill. 355, 33 N.E. 183, 184, 19 L.R.A. 187.

While liability for the support of the ordinary child ceases at his majority, such is not the rule where the child is physically or mentally unable to support himself. 67 C.J.S., Parent and Child, § 17, p. 704, note 39. And such obligation of a parent is emphasized where a father agrees in writing to ‘maintain’ his adult incompetent son. Kamper v. Waldon, 17 Cal.2d 718, 721, 112 P.2d 1; Worthington v. Worthington, 207 Ark. 185, 179 S.W.2d 648; 67 C.J.S., Parent and Child, § 17, p. 704. It is inconceivable that the Legislature could have intended for a paroled incompetent to be denied the benefits of shock treatments by a licensed physician. When appellant was paroled the doctors at the State Hospital knew that while he was ill and would require medical attention he had not the intelligence to seek or find a physician and that he could not consent to the administration of any kind of treatment. If they had thought it unlikely that he would receive medical aid, certainly they would not have paroled him to the Institute.

From the foregoing it is seen that appellant's plan to recover on the theory of an unauthorized assault must fail. The Institute had been awarded the custodial care of appellant. It had the facilities designed for such treatments as were required. Under the parole contract it assumed the obligation to administer such medical aid as he might require for his safety and security. Appellant's father returned the boy to the Institute when he found neither the lobotomy nor any medical service had caused an improvement and the father was authorized by law to engage medical aid for his adult incompetent son.

While there is no decision whose facts are similar to those at bar, appellant has undertaken to invoke some authorities wherein the physician was held liable for a technical assault by virtue of his having failed to obtain the consent of the patient. Those are not pertinent. In Pratt v. Davis, 224 Ill. 300, 79 N.E. 562, 7 L.R.A.,N.S., 609, the surgeon removed the plaintiff's uterus. The patient was insance and the husband had not given consent to the operation. In Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142, the surgeon was employed to remove an axillary gland and he also removed the breast without authority to do so. It was therefore for the jury to determine whether the surgeon was guilty of a technical assault. None of the decisions cited by appellant, In re Tuttendario, 139 A.L.R. 1372; Hively v. Higgs, 120 Or. 588, 253 P. 363, 53 A.L.R. 1052; Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 469, 13 P.2d 905; Estrada v. Orwitz, 75 Cal.App.2d 54, 170 P.2d 43; Markart v. Zeimer, 67 Cal.App. 363, 227 P. 683; where no authority for the operation existed, is authority for guidance in the instant situation where the patient had been adjudged insane; had been committed to a state hospital; had been paroled to respondents who were capable physicians. They administered the shock with the consent of the patient's father who owed the duty to furnish medical service to his incompetent son.

No Negligence.

The foregoing leads to a consideration of the charge of negligence on the part of respondents in administering to appellant. In seeking to invoke the aid of the doctrine of res ipsa loquitur he contends that both femurs of insane patients do not break during the rendition of hospital and medical care in the absence of negligence. In support thereof he cites Cavero v. Franklin General Benevolent Soc., 36 Cal.2d 301, 223 P.2d 471; Dierman v. Providence Hospital, 31 Cal.2d 290, 188 P.2d 12; Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. These decisions lend no support to appellant. The law of this state is that generally the plaintiff in malpractice litigation must prove the negligence of the physician by expert proof. Huffman v. Lindquist, 37 Cal.2d 465, 473, 234 P.2d 34; Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757; Moore v. Belt, 34 Cal.2d 525, 529, 212 P.2d 509. Negligence on the part of a physician is not presumed, but must be affirmatively shown. Those decisions in which the doctrine of res ipsa loquitur has been invoked are situations ‘where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.’ Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695, 698.

Quinley v. Cocke, 183 Tenn. 428, 192 S.W.2d 992, is the only shock treatment decision cited by counsel. The court there rejected the doctrine of res ipsa loquitur. So indeed, the court below in the case at bar did likewise and properly so. The machine of respondents was not defective. The convulsion was the indispensable element of the treatment. If it did not affect violently all parts of the body, it would bring no soothing effects to the mind of one in George's condition. The trial judge acutely observed: There was no extraneous force applied; no failure of the apparatus; no explosion of an anesthetic; no leaving of a sponge within the body; no infected needle point in the gum. ‘The injury, the evidence shows, was foreseeable, and its possibility was a calculated risk * * * Whether or not fractures of the bones are accepted hazards of electroconvulsive therapy, whether or not they occur, even though all the standards of procedures of good practice are observed, the manner in which such treatments are given, their purposes and their effects, what is likely or unlikely to happen in the course of their administration, what is the usual and what is the unusual consequence, and the mental and physicial effect of the treatment are not matters of common knowledge with which laymen are familiar. To know about them, to evaluate them, to say whether ordinary fractures would not occur in the absence of negligence, we require the opinions of experts.’

The trial court's determination that there was no direct evidence of defendants' negligence is likewise free from error. The only evidence as to the standard of practice was supplied by respondents. The testimony established that, in general, such standards are in a state of flux; that some practitioners utilize one nurse to assist in restraining the patient, others use as many as five assistants, but that respondents followed a middle course being of the opinion that moderate restraint is necessary. Concerning the dangers inherent in such therapy the doctor testified that the chief hazard was injury to bones, that the incidence of fractures of all types was between 10 and 40 per cent but less for fractures of the long bones.

Plaintiff argues that the evidence is susceptible of the conclusion that Dr. Wayne utilized only two nurses for purposes of restraint since there was a conflict between the testimony at the trial and the depositions taken prior to trial as to the identity of one nurse. The respondents in their depositions related that a Miss Slivka was one attendant whereas their later testimony was that it was one Mr. Dorsey. Regardless of such disagreement, a review of the evidence in its entirety does not lead to an inference that only two nurses were assisting Dr. Wayne, but, on the contrary, establishes that three were present at all times during the treatment.

In any event, since expert testimony established that reputable practitioners serving in the Los Angeles area used less than three attendants, it cannot be said that the use of only two would make out a prima facie case of negligence. Sim v. Weeks, 7 Cal.App.2d 28, 37, 45 P.2d 350. To permit the jury to return a verdict for plaintiff based upon such a paucity of proof would be to sanction a verdict based wholly upon conjecture and surmise.

Because there was no opinion from an expert to prove that respondents acted negligently in administering to appellant in his great distress, the court correctly instructed a verdict to be returned in favor of respondents.

Judgment affirmed.


1.  A brain operation.

2.  Except those whose religious beliefs oppose the receiving of medical attention.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.