TOMEI v. Lupe Tomei and Henry Tomei, Cross-Defendants and Respondents.

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Court of Appeal, First District, Division 3, California.

Lupe TOMEI, Plaintiff and Appellant, v. Berthol HENNING, Defendant, Respondent, Cross-Complainant and Appellant, Lupe Tomei and Henry Tomei, Cross-Defendants and Respondents.

Civ. 22694.

Decided: January 26, 1967

Belli, Ashe & Gerry, Jack G. McBride, San Francisco, for appellant. Peart, Baraty & Hassard, Salvatore Bossio, John I. Jefsen, Allan H. Fish, San Francisco, for respondent.

Plaintiff Lupe Tomei appeals from the judgment entered against her upon a jury verdict in her medical malpractice action against defendant Dr. Berthol H. Henning. Dr. Henning filed a cross-complaint in the action, seeking recovery of $3,547.19 for services rendered and money loaned. Judgment was entered against him on this claim, and he too appeals.

Appellant Tomei contends the trial court erred in refusing her an instruction on the doctrine of res ipsa loquitur. We agree. Appellant Henning asserts that it was error to deny him recovery on his claim, because testimony in support of his cross-complaint was undisputed. While we are unable to agree entirely with this contention we nevertheless reverse this portion of the judgment also, on the ground that all issues in the case should be retried before a properly instructed jury, if another jury trial is demanded.

Lupe Tomei was Dr. Henning's patient. He determined that she required a hysterectomy, and performed an operation upon her on October 30, 1958. There was evidence that during the operation the doctor encountered extensive bleeding and that it was necessary to use clamps and sutures to aid in clearing the operative site. Mrs. Tomei suffered great pain after the operation. Dr. Henning consulted with other doctors. He decided to re-open the wound. On November 3, 1958, a second operation was performed. Dr. Henning found that during the first operation he had sutured and tied off Mrs. Tomei's right ureter. He removed the sutures. Another doctor, a urologist, attempted a procedure intended to aid in regeneration of the damaged ureter, but it did not. An infection set in after the second operation. Mrs. Tomei developed both a ureteral and a fecal fistula. On December 1, 1958, Dr. Henning performed a third operation to correct the fecal fistula. This operation was successful, but the ureteral vaginal fistula remained. On December 16, 1958, Mrs. Tomei was again in surgery. A ‘T’ tube, previously placed in her right ureter, was removed and a cystoscopy performed. Finally, on February 25, 1959, Mrs. Tomei's right kidney was removed. This terminated problems with her right ureter.

Mrs. Tomei's contention at trial was that Dr. Henning negligently sutured and tied off her right ureter while performing the hysterectomy, and that his negligent conduct made necessary the subsequent major operations to which she was subjected, and ultimately resulted in the loss of her kidney.

Mrs. Tomei produced expert medical testimony. A Doctor Anderson, whose qualifications as an expert were not challenged, testified in effect that performance of a hysterectomy presents a risk of damage to the ureters of the patient; that ureters are easily damaged; that surgeons attempt to avoid any contact with them that might cause damage, and that damage can occur no matter how careful the surgeon. Moreover, according to Dr. Anderson's testimony, the medical profession recognizes that damage to ureters will occur in a certain number of cases. He further stated that the surgeon must ‘* * * know where they [the ureters] are by sight, or feel, or something.’ When cross-examined on this subject with respect to different kinds of hysterectomies, he concluded that, in the type of hysterectomy performed upon Mrs. Tomei, ‘You still have to look out for the ureters.’ He was asked: ‘Doctor, during the course of a hysterectomy, where the ureter is tied off in two places, and the abdominal wound is closed without exercising any technique to determine the condition of the ureters, would you consider that the exercise of proper care and skill of a surgeon? A. No, I would not.’

Mrs. Tomei requested a conditional res ipsa loquitur instruction. The court refused to give it. Her requested instruction reads in part as follows: ‘One of the questions for you to decide in this case is whether the injury involved occurred under the following circumstances: First, that it is the kind of injury which ordinarily does not occur in the absence of someone's negligence; Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant; and Third, that the injury was not due to any voluntary action or contribution on the part of the plaintiff. If, and only in the event you should find all these conditions to exist you are instructed as follows: * * *.’ The remainder of the instruction embodied the usual res ipsa loquitur language concerning the inference of negligence, the duty of the jury to weigh all of the evidence, including the inference, and the showing necessary on the part of defendant to meet or balance the inference.

There is no issue here concerning the second and third questions noted in the offered instruction. It is perfectly clear that Mrs. Tomei's injury was caused by some ‘agency or instrumentality’ in the exclusive control of Dr. Henning, and that she did not contribute in any way to her own injury. The issue is that presented by the first question posed in the instruction, namely, Was Mrs. Tomei's injury ‘* * * the kind of injury which ordinarily does not occur in the absence of someone's negligence?’ (Quintal v. Laurel Grove Hosp., 62 Cal.2d 154, 164, 41 Cal.Rptr. 577, 397 P.2d 161; Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915, 53 A.L.R.2d 124; Edelman v. Zeigler, 233 Cal.App.2d 871, 873, 44 Cal.Rptr. 114.) In Quintal, supra (62 Cal.2d p. 164, 41 Cal.Rptr. p. 583, 397 P.2d p. 167), the court phrased the question thus: ‘Is it more probable than not that * * * [the injury] was the result of negligence?’

Whether a given injury is ‘ordinarily’ or ‘probably’ the result of negligence is a question of fact for the jury (see Seneris v. Haas, supra, 45 Cal.2d p. 827, 291 P.2d 915; Edelman v. Zeigler, supra, 223 Cal.App.2d p. 880, 44 Cal.Rptr. 114) and evidence must be presented upon which a jury may base its answer to this question. Unless the answer can be drawn from common knowledge, expert testimony is required. (Davis v. Memorial Hosp., 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 376 P.2d 561; Siverson v. Weber, 57 Cal.2d 834, 836, 22 Cal.Rptr. 337, 372 P.2d 97; see also dissent of Traynor, C. J., in Quintal v. Laurel Grove Hosp., supra, 62 Cal.2d p. 171, 41 Cal.Rptr. 577, 397 P.2d 161.) In Dees v. Pace, 118 Cal.App.2d 284, 289, 257 P.2d 756, 758, the court, speaking of an operation similar to the operation performed upon Mrs. Tomei, said: ‘An hysterectomy operation as disclosed by the medical testimony is a complicated one and it would lie beyond the realm of the common knowledge and experience of laymen as to whether or not this result [a fistula in the bladder] would ordinarily occur in the absence of negligence.’ (See also Le Mere v. Goren, 233 Cal.App.2d 799, 808, 43 Cal.Rptr. 898.)

Mrs. Tomei produced expert medical testimony. While her expert agreed that the mere fact of injury to a ureter in the course of an operation such as that given Mrs. Tomei did not necessarily mean that the surgeon had departed from good practice, he also said that failure to locate the ureters (emphasis ours) and their subsequent litigation was not the exercise of proper skill. In cases such as Mrs. Tomei's, where a total hysterectomy is performed, he declared: ‘You still have to look out for the ureters', and, as previously noted, he also said that failure to locate them and tying them off was not the exercise of proper skill. From the sum of Dr. Anderson's testimony the jurors, as reasonable men, could have inferred that Mrs. Tomei's injury was the kind of injury that ordinarily. does not occur in the absence of negligence. No more evidence than this was required to justify the giving of the conditional res ipsa instruction offered.

It is true there was a good deal of evidence that tended to conflict with the views of Dr. Anderson. But where the evidence is conflicting or subject to different inferences as to any fact necessary to the application of the doctrine, the question of fact must be left to the jury to decide. (Quintal v. Laurel Grove Hosp., supra, 62 Cal.2d 154, 166, 41 Cal.Rptr. 577, 397 P.2d 161; Davis v. Memorial Hosp., supra, 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 376 P.2d 561; Seneris v. Haas, supra, 45 Cal.2d 811, 826–827, 291 P.2d 915.)

Respondent argues, however, that the evidence shows no more than that the applicable standard of care required identification of, or an attempt to identify, the ureters during a hysterectomy. He insists that no one testified that the ligation of a ureter was probably the result of negligence. However, as said in Edelman v. Zeigler, supra, 233 Cal.App.2d 871, at page 881, 44 Cal.Rptr. 114, at page 121: ‘What is required by way of expert testimony is not perfect matching of the doctor's testimony with the test established by law, but a statement sufficient to enable a reasonable man to draw the inference of probable negligence.’ In Le Mere v. Goren, supra, 233 Cal.App.2d 799, at page 810, 43 Cal.Rptr. 898, at page 904, the court stated: ‘None of the medical witnesses stated that this is a type of injury which ordinarily does not occur in the absence of negligence, but the jury could have drawn that inference if it believed particular portions of the testimony * * *.’

We conclude that failure to give Mrs. Tomei's instruction on res ipsa loquitur was error. Where, as here, a plaintiff is entitled to such an instruction, and is denied its beneficial effect, she is thus left to depend upon proof of negligence and proximate cause as in the usual case. The error is prejudicial. (Edelman v. Zeigler, supra, 233 Cal.App.2d 871, at p. 883, 44 Cal.Rptr. 114.) It is prejudicial because without the help of the instruction, a plaintiff must establish otherwise a defendant's culpability by a preponderance of the evidence, and must persuade the jury that his charges are true. But with the aid of the res ipsa instruction a plaintiff initially need not go the full way. His burden extends only to proof that negligence is probable in light of the facts, whereupon the inference arises, and the defendant must then produce evidence sufficient to meet or balance the inference, or suffer judgment. The ultimate burden of persuasion, of course, always remains with the plaintiff.

Dr. Henning appeals from the judgment denying him recovery on his cross-complaint. He sought $1,151 as the reasonable value of medical services rendered to Mrs. Tomei for the various procedures described in the evidence, plus a further sum of $2,396.19 for monies loaned to her to defray hospital, nursing and other expenses. The testimony in support of these claims was uncontradicted. It is true that a jury may disbelieve uncontradicted testimony if there is any rational basis for doing so. (See Leonard v. Watsonville Community Hosp., 47 Cal.2d 509, 518–519, 305 P.2d 36; Blank v. Coffin, 20 Cal.2d 457, 461–462, 126 P.2d 868.) Here, however, Dr. Henning's claims for the reasonable value of his services and for cash advanced are so inextricably united with Mrs. Tomei's claims for damages for alleged malpractice that it would be unfair to consider one in the total absence of the other. It may be inferred from the facts in our record that the jury, having decided that Mrs. Tomei was not entitled to any damages, was at least in part influenced by that conclusion to deny Dr. Henning recovery on his claim. In any event, retrial of all issues is appropriate on our facts.

The judgment in favor of Dr. Henning and against appellant Lupe Tomei is reversed. The judgment on the cross-complaint in favor of Lupe Tomei and against Dr. Henning is reversed. Appellant Lupe Tomei shall recover her costs.

DISSENT

I dissent.

Plaintiff introduced testimony of an expert that it was negligent for defendant doctor to fail to locate, and thus to tie off, the ureter. Defense evidence was to the contrary. This is the only negligence claimed. There is no other suggestion of any negligent act by defendant and no hint that any other negligence was either probable or possible. Thus the sole issue is whether the admitted failure to locate the ureter was negligence. This issue necessarily turned on the jury's resolution of the conflict in the experts' opinions, since the common knowledge of lay jurors does not extend to this field (Dees v. Pace, 118 Cal.App.2d 284, 289, 257 P.2d 756). Once that conflict is resolved, the issue of liability is determined. If it is resolved in plaintiff's favor, she has no need of res ipsa. If it is resolved against her, to require the jury to consider conditional res ipsa is but to force it back to a second resolution of the conflict it has already resolved, since the same conflicting testimony is the only basis for the probability of negligence which is the condition to such application of res ipsa.

To require a second determination of the identical evidentiary conflict seems to me a misuse of res ipsa. I find no decision of the Supreme Court enunciating such a requirement. Opportunity to announce it has not been lacking (see Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 41 Cal.Rptr. 577, 397 P.2d 161), but that court has chosen, instead, to rest the applicability of conditional res ipsa upon evidence, direct or circumstantial, indicating other elements or acts of negligence tending to show probability that lack of due care caused the injury. In light of this restraint, a basic change by a single intermediate appellate court is more likely to increase than to decrease the confusion already apparent at the trial level.

As pointed out in Dean Prosser's hypothesis of the open railroad switch (Prosser on Torts, 3rd ed., p. 236), proof may reach the point where res ipsa vanishes from the case (see Black v. Partridge, 115 Cal.App.2d 639, 650, 252 P.2d 760). That point seems to me to have been reached here.

I would affirm the judgment.

SALSMAN, Associate Justice.

DEVINE, J.,* concurs.