KERR v. BOCK

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Court of Appeal, Second District, Division 5, California.

Eva M. KERR, Plaintiff and Appellant, v. Gustavus BOCK, sued as Gustave Bock, Defendant and Respondent.

Civ. 34563.

Decided: September 25, 1970

William J. Pollack, O'Rourke & Greenberg and David Greenberg, Los Angeles, for plaintiff and appellant. Bonne & Jones and H. Gilbert Jones, Los Angeles, for defendant and respondent.

Plaintiff appeals from an adverse judgment in her action for medical malpractice. The essential issue on appeal is whether the trial court erroneously failed to instruct the jury on the doctrine of res ipsa loquitur.

The facts are relatively simple. In January 1963, plaintiff, a lady then 67 years old, went to see a Doctor Jones. She had had intermittent pain in her left leg ‘between the hip and the knee; more toward the hip.’ X-rays were taken and revealed a tumor on her left femur. The diagnostic impression of the radiologist was ‘[p]robable osteogenic sarcoma, proximal femur, left.’ Plaintiff was referred to a Doctor Durnin, an orthopedic surgeon, who was scheduled to perform a biopsy of the tumor. This involved, of course, surgery. Plaintiff agreed to the procedure. Before it was actually undertaken, it appeared that Doctor Durnin would be unable to perform it and, with plaintiff's consent, it was performed by defendant on February 7, 1963. The surgery was uneventful, as such. A certain amount of the femur was removed. A pathological report which, of necessity, took about two weeks in preparation, ruled out the doctors' initial impression of a malignant sarcoma. The tumor, which was benign, was in reality an osteoid osteoma. In the meanwhile plaintiff had been discharged from the hospital on February 13. On February 14, in her home, plaintiff was lying on a sofa watching television. Attempting to rise she lifted up her left leg ‘just a little,’ and it fractured at the site of the operation.1 She was returned to the hospital. After it had been determined that the tumor was benign, defendant performed another operation in which he placed an intramedullary nail into the bone. The nail was removed by another physician in June, 1964. Plaintiff's only complaint of permanent disability was that she got tired when she walked ‘quite a bit,’ such as while shopping. On those occasions she did not actually feel pain, but just an ache.

At the trial the thrust of plaintiff's charge of negligence against defendant was that he had not provided either internal or external fixation or immobilization to the femur which was admittedly weakened by the surgery. Although this failure is the kingpin of plaintiff's claim, the record is also susceptible of inferences that the radiologist's diagnostic impression of a probable malignancy was erroneous and that defendant should have realized this before operating, that he removed more bone than was necessary, that he did not realize just how much bone he had removed and, finally, that having decided not to provide fixation or immobilization, his instructions to plaintiff on how to conduct herself were insufficient, in that he did not specifically warn her against lifting the leg.

On one aspect of the case there can be no reasonable disagreement: defendant did not just overlook the problem of fixation or immobilization. Whether through negligence or otherwise, not providing either kind or protection was his deliberate choice.

Plaintiff produced an expert witness. The substance of his testimony was that due care demanded the insertion of an intramedullary fixation device. It was his position that whenever more than twenty percent of the circumference of the femur is removed, such a device had to be inserted. It was his further conclusion from inspecting whatever records and X-rays were available, that defendant had removed at least fifty percent of the circumference of the femur. On cross-examination it appeared that in arriving at his conclusion that defendant had violated the standard of care, plaintiff's expert had assumed that the tumor was of the kind which it was shown to be by the pathological report that was received several days after plaintiff's return to the hospital, not the suspected osteogenic sarcoma.

Although, of course, we must determine the propriety of the court's failure to instruct on res ipsa loquitur without recourse to the defense testimony,2 it will help in understanding the context in which the problem arises, if we set forth the heart of defendant's position below. It is explained in the following examination by his counsel: ‘Q Insofar as the use of either a nail or a cast is concerned, would either one of those methods, under the circumstances facing you, have hazards and drawbacks? A Yes, sir, they do. Q Will you tell the jury what they are in each instance? A The first factor, that with this amount of bone which I removed, which only amounted to one-quarter, approximately, of the circumference of the bone, I felt that an intramedullary nail or a fixative agent was unnecessary. It would have been doing an unnecessary procedure. Secondly, we had a tumor here, the diagnosis of which we did not know, and the question of which quite seriously was considered as being that of a malignancy. I did not want to insert any fixative agent in this area in the presence of a malignancy, in view of the fact any such fixative agent would spread the malignant cells. Q Doctor, could you tell us what your reasoning was with regard to a cast? A First, I did not think that a sufficient amount of bone had been removed to sufficiently weaken the femur as to require a cast. Secondly, a cast posed certain complications, mainly that of pneumonia, hypostatic pneumonia, pulmonary embolism from blood clots, kidney stones, general muscular atrophy, and general loss of calcium throughout the entire skeletal structure, because with a cast that went from the breast down to and encasing the feet, the patient would be completely bedridden, and she would present decalcification of the entire skeletal structure all the way through.’

No particular purpose would be served by setting forth other details of the evidence produced by defendant to overcome plaintiff's prima facie case of negligence. Suffice it to say that through his own testimony and that of two expert witnesses defendant produced ample evidence to support the verdict in his favor.3 No contention to the contrary is made.

On the subject of precautions against breaking the femur after the operation, plaintiff testified that she was furnished with crutches on February 11. Before leaving the hospital defendant instructed her to use the crutches at all times and to ‘be careful and not [sic] put only a little weight on the leg.’4 She knew that the bone had been weakened by the operation and that she had to be careful. Although she kept that fact in mind during the days after the operation, she claimed to have no idea that the bone break. Defendant corroborated plaintiff, in part, testifying that he had ‘* * * told her that she was to use crutches at all times, with minimal weight bearing, bearing the weight of her extremity only, just the weight of touching it down on the floor; that she was to be very careful and avoid any injury, any violent motions; that this bone could fracture if she sustained an injury. ’

The fact that plaintiff's evidence showed specific acts of negligence cannot, of course, deprive her of the right to a res ipsa loquitur instruction, if she is entitled to it. (Shahinian v. McCormick, 59 Cal.2d 554, 563, 30 Cal.Rptr. 521, 381 P.2d 377; DiMare v. Cresci, 58 Cal.2d 292, 299, 23 Cal.Rptr. 772, 373 P.2d 860; Prosser, Law of Torts (3d ed. 1964) pp. 236–237.) ‘If the rules were otherwise, a plaintiff would be penalized for producing all of the evidence he has as to the cause of the accident, and in some cases the trier of fact might be denied evidence useful and relevant to the proper determination of the case.’ (DiMare v. Cresci, supra, 58 Cal.2d at 299, 23 Cal.Rptr. at 776, 373 P.2d at 864.)

It seems to us, however, that both plaintiff and the dissent would go further and have the court hold that when the plaintiff has a prima facie case of specific negligence, that alone, somehow, also entitles her to a res ipsa instruction. That, of course, is not the law; nor can we see why it should be the law simply because the plaintiff has not just one, but several theories of specific misconduct.

Leaving aside all other elements of an adequate res ipsa showing, the minimum is some substantial evidence which, if believed by the jury, entitles it to draw an inference of negligence from the happening of the accident itself. This inference may be based on common experience or expert testimony. We find no evidence in the record which would have justified a jury in drawing the necessary inference by either route.

We first turn to expert testimony. Concededly there is no magic language which must be intoned by any witness before a court can say that a res ipsa instruction based on expert testimony is called for. (Tomei v. Henning, 67 Cal.2d 319, 322, 62 Cal.Rptr. 9, 431 P.2d 633.)

In Tomei the defendant had performed a hysterectomy on plaintiff and had accidentally sutured her right in two places. Doctor A., plaintiff's expert, had testified that in order to avoid such an accident certain techniques to determine the condition of the ureter should be employed before closing the wound. Concededly the defendant had not employed either technique. His defense was that the suturing of the ureter and the failure to discover it were unavoidable and not the result of negligence. He prevailed. No res ipsa instruction had been given. The status of the law pertaining to the need for such instructions in medical malpractice cases had recently been declared in Clark v. Gibbons, 66 Cal.2d 399, 412, 58 Cal.Rptr. 125, 134, 426 P.2d 525, 534 namely ‘* * * that proof that when due care is exercised an injury rarely occurs, accompanied by other evidence indicating negligence, may be sufficient to warrant an instruction on conditional res ipsa loquitur. * * *’

In Tomei no witness had testified, in so many words, that ‘when due care is exercised an injury rarely occurs.’ Doctor A. had merely said, in the court's words, ‘* * * that the happening of the accident itself, namely, the suturing of a ureter in two places and closing the wound without exercising any technique to determine the condition of the ureters, was not the exercise of proper care by a surgeon performing a hysterectomy.’ (Tomei v. Henning, 67 Cal.2d at 323, 62 Cal.Rptr. at 11, 431 P.2d at 635.) This testimony was found to be adequate to support an inference that when an accident, such as the suturing of the ureter, occurs during a hysterectomy, ‘it is more probably than not the result of negligence.’ The defendant's argument that in rejecting the evidence which would have supported a verdict on the basis of specific negligence, the jury must also have rejected the evidence which would have supported a verdict on the basis of res ipsa loquitur, was met by the court as follows: ‘We do not believe, however, that a res ipsa loquitur instruction would have been superfluous in this case. It would have focused consideration on the inferences that could be drawn from the happening of the accident itself as distinct from the inferences that could be drawn from the evidence of the specific procedures available to a surgeon to avoid suturing a ureter or to discover such suturing in time to correct it before closing the wound. It bears emphasis in this respect that the suturing of plaintiff's ureter was not done intentionally and the issue is not whether such suturing was a procedure a qualified surgeon might reasonably adopt. Suturing the ureter was an accident, and the question was whether the exercise of reasonable care would have prevented it. * * *’ (Tomei v. Henning, 67 Cal.2d at pp. 323–324, 62 Cal.Rptr. at p. 12, 431 P.2d at p. 636. Emphasis added.)

In the case at bar we find no testimony which can be stretched to suggest that when, after an operation such as was performed on plaintiff, the weakened femur is fractured, the fracture is more probably than not the result of negligence either during the operation with respect to post-operative care. While it was common ground among all the doctors that any cutting away of the bone would weaken the femur, even plaintiff's expert did not testify that due care demanded that any such weakening be compensated by a fixation device. The matter was purely one of professional judgment. To be sure, the experts differed on how such judgment should have been exercised in this particular instance. This does not mean, however, that once the jury had rejected plaintiff's evidence concerning the alleged lack of due care on defendant's part in exercising his judgment the way he did, there was some other mysterious way in which it could still find that he misjudged the situation after all.

This is, of course, the vital distinction between the situation at bar and Tomei, which is easily plaintiff's best case. There the court emphasized that an accident had happened. The suturing of the ureter served no useful purpose whatever; it was not, as the court points out, ‘a procedure a qualified surgeon might reasonably adopt.’ Even after the jury had rejected the specific evidence of negligence suggested by plaintiff's expert, there was some room for it to find that had defendant exercised due care, plaintiff should not left the operating table with a ureter sutured in two places. In the case at bar we are unable to spell out a rational thought process, based on the evidence adduced, by which the jury could have arrived at a finding of negligence, once it had rejected the specific theories advanced by plaintiff.5 However verbalized, any contrary argument must ultimately rest on the belief that evidence of a professional decision to take an apparently necessary, calculated risk, which is proved by hindsight to have been unnecessary, is evidence of malpractice. The possible desirability of such a rule was discussed by Justice Tobriner in his concurring opinion in Clark v. Gibbons, 66 Cal.2d 414, 421, 58 Cal.Rptr. 125, 426 P.2d 525. It is not for us to adopt it.

Nor can we agree that common experience tells from the happening of the accident itself that plaintiff's injury is more likely than not the result of defendant's negligence. To be sure, there was room for common experience in this case: even a lay mind can judge, at least to some extent, whether defendant's instructions to plaintiff on discharging her were sufficiently precise, emphatic and inclusive. Here again, however, we are dealing with a theory of specific negligence that was fully tried. Can we say, in addition, that common experience tells us that when a patient who has had part of her femur removed without fixation or immobilization lifts her leg and the femur breaks at the operative site, this is more likely than not the result of the surgeon's negligence? We believe that if we did say so, we would simply be ascribing to ourselves, under the guise of ‘common experience,’ an expertise which it takes our brethren in the medical profession years to acquire.

There was, therefore, no error in refusing plaintiff's res ipsa loquitur instruction. Plaintiff makes a subsidiary point in complaining that the court erroneously ‘preinstructed’ the jury before the introduction of any evidence. We have carefully read the court's remarks to the jury and find no error. All statements made by the court were correct as far as they went. To be sure, had the evidence not yet introduced supported a res ipsa loquitur instruction and had one been given, a legally unsophisticated juror might have had some problems in reconciling what he had been told before the introduction of evidence, with what he heard later. This would have been particularly true had defendant failed to introduce any evidence of due care. As it is, however, the problem is academic.

The judgment is affirmed.

I dissent.

The facts as we must view them on appeal are, as the majority opinion states, relatively simple. It is the difference of opinion as to plaintiff's right to have the inferences of defendant's negligence drawn from the facts which requires my restatement of them.

Defendant, Dr. Bock, performed a surgical removal of a tumor from the femur (thigh bone) of plaintiff's (Mrs. Kerr's) left leg, and he removed part of the bone of the leg in excising the bone tumor.1 As might well be expected (and as set forth in the majority opinion), there is evidentiary conflict as to the amount or percentage of the femur removed. Since we are concerned solely with the right of plaintiff to have presented the issue of defendant's negligence through the theory of res ipsa loquitur,2 the evidence favorable to plaintiff must establish the facts upon which this appeal turns. (Farber v. Olkon, 40 Cal.2d 503, 505, 254 P.2d 520.) Reference to contrary evidence unnecessarily extends and obscures the issue; hence, the facts as set forth herein flavor the analysis quite differently than does the seasoning of the majority opinion.

Plaintiff testified that defendant told her after the operation, that ‘a third of the bone’ was removed. Her medical expert opined that, based on his examination of X-rays and pathology reports, 50 to 57 percent of the bone was removed. The record establishes without conflict that following the removal of the tumor no internal fixation device3 was implanted in the bone to strengthen the weakened femur. Following the surgery, no external fixation device such as a cast was utilized to protect the limb from injury; nor was plaintiff immobilized in Thomas splints with Pearson attachment.4 At the time plaintiff was sent home, not even bandages as had initially encircled her leg following the surgery were applied for support.

The plaintiff's expert concluded that following the removal of 20 percent or more of the bone, the degree of care and skill common to the medical profession in the geographical area required the use of some type of fixation device, internal or external. Defendant's experts testified that the use of such an internal fixation device or a cast or type of bed rest was required when 33 1/3 percent or more of the bone was removed. Defendant concluded that the required medical skill dictated the use of a cast ‘definitely, in a 33 1/3 percent’ removal of the bone ‘no matter what the circumstances [malignant or nonmalignant].5

The operation took place on February 7, 1963 and plaintiff was released from the hospital, ambulatory and on crutches, on February 13, with the only cautionary instruction given relative to the leg being that plaintiff ‘should use the crutches at all times and * * * put only a little weight on the leg.'6 Even defendant's testimony as to the instructions he gave plaintiff established that he failed to warn her of any danger in the mere lifing of her leg in order to place her feet on the floor when she had been in a reclining position: ‘I told her that she was to use crutches at all times, with minimal weight bearing, bearing the weight of her extremity only, just the weight of touching it down on the floor; that she was to be very careful and avoid any injury, any violent motions; that this bone could fracture if she sustained an injury.’ (Emphasis added.) Plaintiff testified that she recognized the bone had been weakened and that she needed to be careful, but had no idea that the bone would break.

All went well until plaintiff, on February 14, sought to raise herself from a lying position on her couch, which she was using as a bed. She ‘moved [her] legs to get off of the couch and change the television program, and as [she] moved [her] legs, this bone snapped.’ She lifted her leg ‘just a little,’ but did not move it in a sideways motion at all before the injury occurred. After the breaking of the leg, plaintiff tried unsuccessfully to crawl to the telephone to call for assistance; pain caused her to desist. Plaintiff was found on the floor of her home by some visiting friends and was sent to the hospital, where she remained in traction until February 20, when she was returned to surgery and an intramedullary nail was placed in the bone at the place of injury.7

At all times pertinent to this case, the plaintiff was in general good health.8

Plaintiff sued defendant for medical malpractice, claiming that there was a failure of defendant to perform his professional obligation in the customary manner consistent with good medical practice in the community. The issue of negligence was submitted to the jury, but the court refused to give the requested instructions on res ipsa loquitur. The jury returned a verdict for the defendant, and this appeal followed.

Plaintiff does not limit her claimed negligence to that of failure to provide fixation or immobilization. That, of course, is so involved in the other contentions that it appears dominant. So closely tied to the contention of failure to provide fixation or immobilization that the line of demarcation fades is the contention that the injury resulted because of defendant's failure to give plaintiff adequate precautionary instructions. Even the hypothetical questions relating to the standard of care posed to Dr. Bock and his expert witnesses included the assumption of adequate instructions as to care.

Plaintiff justifies her right to have the refused instructions given to the jury on several factual theories: (1) that the defendant removed more of the bone than was commensurate with good medical practice relative to the excision of the type of tumor involved;9 (2) that the defendant removed a larger percentage of the bone than he realized, and this resulted in his negligent failure to take precautionary measures by application of some kind of supporting device to protect the weakened bone from the injury which resulted; (3) that the defendant negligently failed to provide a protective supporting device of some kind after knowingly removing the percentage of bone in excising the tumor; (4) that defendant negligently failed to properly instruct plaintiff in the care necessary to avoid the very injury which occurred, when defendant knew, or should have known, the dangers incident to the surgically caused weakness of the bone.

If any of the theories warrant the giving of the res ipsa instruction, that is sufficient, even though others may prove only specific acts of negligence. (Prosser, Torts (3d Ed.) p. 236.) Plaintiff was entitled to have her case go to the jury with the benefit of the res ipsa loquitur instructions.

My colleagues and I are not in conflict as to the basic principles involved in the problem before us. It is not questioned that the doctrine of res ipsa loquitur is fundamentally a doctrine based on inferences which are deducible from circumstantial evidence. (Clark v. Gibbons, 66 Cal.2d 399, 409, 58 Cal.Rptr. 125, 426 P.2d 525.) The requisites for res ipsa are contained in BAJI Instruction 4.00:

‘On the issue of negligence, one of the questions for you to decide in the case is whether the [accident] [injury] involved occurred under the following conditions:

‘First, that it is the kind of [accident] [injury] 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 [originally, and which was not mishandled or otherwise changed after defendant relinquished control]; and

‘Third, that the [accident] [injury] was not due to any voluntary action or contribution on the part of the plaintiff which was the responsible cause of his injury.’

(See also Witkin, Cal.Evid., § 264, Res Ipsa Loquitur, p. 227; Id., 1969 Supp. § 264, p. 80.) And in Tomei v. Henning, 67 Cal.2d 319, 322, 62 Cal.Rptr. 9, 11, 431 P.2d 633, 635, the court stated: ‘As a general rule, res ipsa loquitur applies where the occurrence of the injury is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible. In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied both on common knowledge and on expert testimony. [Citations.]’ It is in the application of the rules relating to res ipsa as applied to the instant facts wherein our differences lie.

There are situations wherein a layman, without the benefit of expert testimony, in the exercise of common knowledge, may infer that the injury would not have occurred in the absence of someone's negligence. (Meier v. Ross General Hospital, 69 Cal.2d 420, 429, 71 Cal.Rptr. 903, 445 P.2d 519.) Here, we have a plaintiff who apparently was what is known as a healthy person. While it may be generally recognized that a person 67 years of age may not as quickly recover from the weakening effects of an operation as was here performed, no evidence supports the conclusion that the injury which occurred was more likely to occur to a person in plaintiff's condition of health, and if we adopt Dr. Bock's testimony that he believed that the removal of the amount of bone here involved did not necessitate artificial support of the leg, the factor of age did not enter into his consideration as to form of treatment. Certainly it cannot be argued that a healthy person, in the process of lifting her left leg form a reclining position so as to place her foot on the floor preparatory to becoming ambulatory could reasonably anticipate that the femur would break, in the absence of some negligent act by her or someone else.

On the other hand, under the circumstances of the bone removal here involved, testimony by plaintiff's expert as to the significant fact of the bone removal was: ‘The significant factors would be in this area of this bone, in a woman of this age, any portion of bone removed from this site would impair or, in other words, weaken that bone. This area of the femur is the area which yields to stress in second position, number one being the very top part, being the weakest or the area which takes most of the weight of the bone, this being the area taking second best (indicating). * * * Q What type of movement would cause stress on this secondary that you were just elaborating on? A Weight-bearing definitely causes stress on that. There are muscles attached to this part of the bone which tend to swing the entire leg out. There are other muscles which tend to oppose this, which tend to swing the leg in this direction (indicating). Either of the muscles would cause a certain tension upon this area, and if this area is weakened by a hole, there is a very good chance of this area breaking through.’ This form or type of stress to which the plaintiff's expert referred was inferentially at least recognized by defendant. Defendant was asked: ‘Did anything that you took in Mrs. Kerr's history indicate to you that any kind of unusual stress had been placed upon her leg?’ His answer was: ‘It may have been the way she was getting up off the sofa. I don't know. I don't know. I don't know.’

It was the unanimous opinion of the experts that where a given percentage of the femur is removed, there is such a weakening of the bone that internal or external support (or immobilization) is required. The defendant conceded that the course of action he took involved a ‘calculated risk.’ The crux of this case, then, is that by defendant's failure to support the leg artificially, or to fully inform plaintiff as to the ‘risk’ involved and to properly instruct her as to the care which she must take to avoid the very injury which occurred, defendant was negligent. The break was not the result to be expected from proper treatment after a bone tumor removal with no complications, and nowhere in the record does defendant contend that it was. In the extensive record of this case, there is not one suggestion that, absent a force upon the weakened bone (a stress which could readily be avoided by proper care), there was any probability of the injury occurring. Only if such an injury had been a ‘probability’ within the very course of treatment (and unavoidable as such in the exercise of the standard of medical care), or the result of an intervening cause (a negligent act by a third party, or one by plaintiff), could it be said that defendant's failure to act (support or adequately instruct) was not the cause of the injury. (Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 458, 150 P.2d 436, 438.)10 In the absence, then, of evidence of negligence on the part of plaintiff (or of a third party), there is but one possible inference which arises by the happening of the injury itself, and that is, that defendant, by failing to reinforce the leg to prevent breakage, or by failing to fully instruct plaintiff in the care necessarily to be exercised by her, was negligent.

As is obvious, precautionary steps were available to defendant to minimize or even eliminate whatever risk he acknowledged was involved by virtue of his course of treatment. Expert evidence, including defendant's own testimony, recognized that the standard and degree of care required in this instance was either to provide a support, cause immobilization, or properly instruct plaintiff as to the care necessary. The expert testimony as to what the risks were shows a recognition of the probability of the injury which occurred. Defendant's own testimony shows that he recognized the risk of fracture. In answer to questioning as to why he had not placed plaintiff's limb in a cast, he stated: ‘Because, in my opinion, the amount of bone left remaining had sufficient strength to permit her a reasonable amount of activity, with precaution.’ (Emphasis added.)

On the conflict of evidence as to the extent of any precautionary instruction and the inferences to be drawn from those concededly given, there was presented a factual question as to negligence, and the plaintiff was entitled to the benefit of the presumptions11 of negligence which favorable evidence provided for her. Under the authority of Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124, the question whether the doctrine of res ipsa loquitur was applicable should have gone to the jury as an issue of fact. The rationale of Meier v. Ross, supra, is applicable, for, as there stated (69 Cal.2d p. 424, 71 Cal.Rptr. p. 906, 445 P.2d p. 522): ‘If those charged with the care and treatment of a mentally disturbed patient know of facts from which they could reasonably conclude that the patient would be likely to harm himself in the absence of preclusive measures, then they must use reasonable care under the circumstances to prevent such harm. [Citations.]'12

In the instant case, just as in Meier, supra, the care taken was inadequate in that it made likely the happening of the injury by the patient's doing the injurious act (of lifting her leg) without knowledge of the inherent danger. Restraint or other precaution was the proper medical care in Meier, while proper instruction or adequate support was that which was required here; in either case, the failure was to that which the standard of degree of care and skill required.13 It was proper to have presented to the jury, [e]ven in the absence of expert testimony which describes the probability that the * * * injury resulted from negligence,' the issue of whether ‘defendant more probably than not breached his duty of care when the evidence supports a conclusion that the cause of the accident * * * was not inextricably connected with a course of treatment involving the exercise of medical judgment beyond the common knowledge of laymen.’ (Meier v. Ross General Hospital, supra, at p. 424, 71 Cal.Rptr. at p. 907, 445 P.2d at p. 523.) The ‘choice of treatment’ (to use or not to use internal or external support) fell within that type of knowledge which required expert testimony to determine whether or not the treatment was in conformity with the proper standard of care. However, the expert testimony here not only placed in issue the questions of whether the performance of defendant was in conformity with the proper standard of care, it narrowed the field of possibilities as to the negligence proximately causing the break itself (a result not inextricably encompassed within the treatment chosen), so that a lay mind could take over where the medical testimony left off to properly draw an inference of probability of negligence.

My opinion does not depend upon the injury being one which, under the circumstances, falls within the ‘common knowledge’ portion of the doctrine of res ipsa. The Meier court spoke to the same contention, saying (at p. 430, 71 Cal.Rptr. at p. 910, 445 P.2d at p. 526): ‘An obvious instance in which we do not call for expert testimony arises when the facts of a case support a finding of negligence of the ordinary type unrelated to questions involving materia medica.5 (Cf. Ales v. Ryan, supra, 8 Cal.2d 82, 100, 64 P.2d 409.)’ But in addition, in the instant case there is adequate ‘expert testimony’ justifying the application of the principle.

My colleagues urge that the various theories of negligence expounded in the plaintiff's evidence constitute merely specific instances of alleged negligence. The case of Tomei v. Henning, supra, 67 Cal.2d 319, 62 Cal.Rptr. 9, 431 P.2d 633 completely answers that contention. In Tomei (at pp. 323–324, 62 Cal.Rptr. at p. 11, 431 P.2d at p. 365), the court said:

‘Defendant contends, however, that the error could not have been prejudical on the ground that a res ipsa loquitur instruction would have been redundant in this case. He points out that the only negligence suggested by the evidence was failure to protect the ureters from being damaged during the hysterectomy, and he concludes that under the instructions given the jury could find him not guilty of negligence in that respect only by rejecting the evidence that would support a finding of negligence under the doctrine of res ipsa loquitur. He urges that in a case in which all the evidence points to particular negligent conduct, it is superfluous to ask the jury to pass first on that evidence under ordinary negligence instructions and then again under a res ipsa loquitur instruction.

‘We do not believe, however, that a res ipsa loquitur instruction would have been superfluous in this case. It would have focused consideration on the inferences that could be drawn from the happening of the accident itself as distinct from the inferences that could be drawn from the evidence of the specific procedures available to a surgeon to avoid suturing a ureter or to discover such suturing in time to correct it before closing the wound. It bears emphasis in this respect that the suturing of plaintiff's ureter was not done intentionally and the issue is not whether such suturing was a procedure a qualified surgeon might reasonably adopt. Suturing the ureter was an accident, and the question was whether the exercise of reasonable care would have prevented it. Properly instructed, the jury could pursue the answer to that question along two distinct routes. It could ask what did defendant do or fail to do that might have caused the accident. Under a res ipsa loquitur instruction it could ask whether it is more likely than not that then such an accident occurs, the surgeon was negligent. Since the verdict was reached without the benefit of a res ipsa instruction, it establishes only that the jury could not find negligence along the first route; it could not identify any specific negligent conduct. Had the instruction been given, however, the jury might reasonably have concluded that regardless of how the accident happened or how it could have been avoided, its happening alone supported an inference of negligence. We conclude that it is reasonably probable that a result more favorable to plaintiff would have been reached had the instruction been. The error was, therefore, prejudicial. (Cal.Const., art, VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)’

Whether the negligence of defendant consisted of improper diagnosis (Cf. Cullum v. Seifer, 1 Cal.App.3d 20, 27–28, 81 Cal.Rptr. 381; Majetich v. Westin, 276 Cal.App.2d 216, 220, 80 Cal.Rptr. 787) resulting in an excessive excision, or whether the negligence was the failure to provide internal or external support, or to recognize that an amount of bone had been removed which required support, or whether the negligence was, recognizing the likelihood of injury because of the amount of bone removed, failing to provide adequate care and supervision by means of adequate instructions or immobilization, the expert testimony ‘need only afford reasonable support for an inference of negligence from the happening of the accident alone.’ (Tomei, supra, 67 Cal.2d pp. 322–323, 62 Cal.Rptr. p. 11, 431 P.2d p. 365.) To paraphrase Tomei (p. 323, 62 Cal.Rptr. 9, 431 P.2d 633): Dr. Kriegsman's (plaintiff's expert's) testimony affords such support in this case. Thus, he testified that the happening of the accident itself, namely, the removal of more than 33 1/3 percent of the bone and the failure to provide internal or external support, was not the exercise of proper care by a surgeon performing a bone tumor removal from the femur. Directly quoting from Tomei (p. 323, 62 Cal.Rptr, p. 11, 431 P.2d p. 365): ‘Accordingly, it was a question for the jury whether when such an accident occurs it is more probably than not the result of negligence. Since it is undisputed that defendant's conduct was responsible for the accident and that plaintiff did not contribute thereto, it was error to refuse the conditional res ipsa loquitur instruction.’ Reference is made to this ‘paraphrasing’ in the majority opinion in footnote 5, page 799. The purport of that note and the argument that the numerous theories of negligent conduct are merely ‘specific incidences of negligence’ and do not entitle plaintiff to present her case as one under res ipsa fail to recognize ‘[t]he increasing use of res ipsa loquitur [which] exemplifies the growing recognition of the courts of the special obligations which arise from particular relationships. Prosser, Res Ipsa Loquitur in California, 37 Cal. Law Rev.(1949) 183, points out that ‘where the particular defendant is in a position of some special responsibility toward the plaintiff or the public’ (p. 224) the doctrine is designed to protect the dependent parly from unexplained injury at the hands of one in whom he has reposed trust.' (Cho v. Kempler, 177 Cal.App.2d 342, 349, 2 Cal.Rptr. 167, 171.)14 (Emphasis added.)

The majority opinion seeks to distinguish Tomei from the instant case by saying: ‘The suturing of the ureter served no useful purpose whatever: it was not, as the court points out, ‘a procedure a qualified surgeon might reasonably adopt’' and that ‘plaintiff should not have left the operating table with a ureter sutured in two places.’ What the majority apparently fail to see is that it is not necessarily the claim of error in the ‘medical judgment’ to follow the course of treatment calling for no support or immobilization of the leg, it is the patently present error of failure to provide support or failure to adequately instruct as to the dangers incident to such manner of treatment that gives rise to the inference of negligence. This negligence set the trap for the unwary plaintiff, who suffered a totally unnecessary leg break, and was subjected to further operations.

The language used in a Washington case succinctly expresses the rule applicable here, though certainly out-of-state authority is not necessary on this issue. In Swanson v. Hood, 99 Wash. 506, 512, 170 P. 135, 137, it is said:

‘But there is an obvious distinction between a claim of negligence in the choice of methods of treatment and a charge of negligence in the actual performance of the work or treatment after the choice is made. As to the first, the charge is refuted as a matter of law by showing that a respectable minority of expert physicians approved of the method selected thus taking the case from the jury. As to the second, a charge of negligent performance, where there is any evidence tending to show such negligence, the case is for the jury, as in other cases of negligence, whenever upon the evidence the minds of reasonable men might differ.’

Here, the defendant freely conceded that plaintiff continued under his care and supervision not only for the surgery, but ‘for the period of time until the healing process took place.’

From my reading of the issues raised by the facts, there is no distinction between the rationale of Gerhardt v. Fresno Medical Group, 217 Cal.App.2d 353, 31 Cal.Rptr. 633 and the instant case. Gerhardt was approved in Surabian v. Lorenz, 229 Cal.App.2d 462, 467, 40 Cal.Rptr. 410. In Gerhardt, a nerve injury had been sustained during the operative removal of a lymph node. It was a result that was not shoun to have been an inherent risk of the operation if due care had been used, and there, too, the specific cause of injury was proved (pinching of the nerve by hemostat). Distinguishing Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372 P.2d 97, the Gerhardt court said at 217 Cal.App.2d page 358, 31 Cal.Rptr. page 636:

‘In the first place, medical experts in Siverson testified that the possibility of a fistula's developing is an inherent risk in any hysterectomy. The Supreme Court cited Dees v. Pace, 118 Cal.App.2d 284, 289, 257 P.2d 756, 759, holding that ‘a fistula is a recognized hazard in all hysterectomies, one of the calculated risk.’ In the case before us no doctor testified that a crushed spinal accessory nerve is an inherent risk or hazard of a lymph node removal.' (At p. 358, 31 Cal.Rptr. at p. 636.)

‘As we understand the rule of Siverson, it limits the application of the doctrine of res ipsa loquitur in the absence of a causal nexus between the unfortunate result and an act of the doctor. No inference of negligence arises solely because the result of the operation is something that rarely occurs. But the issue of inherent risk is subsidiary to the ultimate inference of negligence. Evidence that a result rarely occurs may be considered in determining this subsidiary issue; that is to say, it is evidence to be weighed against contrary evidence on the issue. In this case, there was no medical testimony that a crushed spinal accessory nerve is a calculated risk inherent in a lymph node removal. In the absence of contrary evidence, circumstantial evidence derived from the undisputed testimony that in a lymph node removal the unfortunate result here obtained is extremely rare, is determinative.

‘* * * Aside from the rule of Siverson, did the evidence justify an inference of negligence under the doctrine of res ipsa loquitur which defendants were required to meet? * * * [At p. 359, 31 Cal.Rptr. at p. 637.]

‘The evidence which established the cause of the injury, coupled with the testimony of the twelve doctors that the operation is relatively simple, the fact that only one witness had ever heard of one similar unfortunate result, and the absence of direct evidence that the result was an inherent risk of the operation, combine to bring the case within the rationale of the res ipsa loquitur doctrine. To paraphrase the concluding sentence of Siverson v. Weber, supra, [57 Cal.2d] pages 839–840, 22 Cal.Rptr. pages 339, 340, 372 P.2d pages 99, 100, in light of the evidence adduced it can be said that the injury to the spinal accessory nerve was more probably than not the result of the negligence of Dr. Tuschka. (See also Di Mare v. Cresci, 58 Cal.2d 292, 298, 23 Cal.Rptr. 772, 373 P.2d 860.)

‘The inference of negligence in plaintiff's favor, which thus arose under the doctrine of res ipsa loquitur, required defendants to explain why or how the nerve was clamped. (Burr v. Sherwin Williams Co., 42 Cal.2d 682, 688 268 P.2d 1041; Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 436, 260 P.2d 63; Dierman v. Providence Hospital, 31 Cal.2d 290, 292, 188 P.2d 12; Kohl v. Disneyland, Inc., 201 Cal.App.2d 780, 893, 20 Cal.Rptr. 367.) The burden of going forward with substantial evidence to dispel or equally balance the inference of negligence rested on defendants. [Citations.]’ (At p. 360, 31 Cal.Rptr. at p. 637.)

There is another contention of error on the part of plaintiff. It is related to the claimed error of refusal to give the requested res ipsa loquitur instructions. The court, in the initial stages of the trial and before any evidence was taken, instructed the jury in part, effectively precluding consideration of the principles of res ipsa.15 The error of the court in refusing the requested res ipsa instructions was compounded by these initial comments. Even if the requested instructions had been given, there would have existed a serious conflict in the instructions. Of course, if my analysis of the law and the evidence as herein set forth is inaccurate, then, though the judge should not have prejudged the applicable law, no harm would have resulted.

I would reverse the judgment.

FOOTNOTES

1.  Plaintiff's expert witness who took her history, testified that she had said that she swung and lifted her leg.

2.  This is obviously not a case like Leonard v. Watsonville Community Hospital, 47 Cal.2d 509, 515, 305 P.2d 36, 39, where an inference of negligence arising from the accident itself is dispelled as a matter of law by evidence that is ‘clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved. * * *’

3.  The major conflicts centered on two questions: what percentage of bone had to be removed before due care demanded fixation or immobilization, and how much defendant had actually removed.

4.  A little earlier plaintiff had testified that some unidentified person had instructed her not to put any weight on her leg.

5.  On the point that a res ipsa instruction was called for by the expert testimony in this case, the misconception of the dissent is illustrated by the following passage: ‘* * * Dr. Kriegsman's (plaintiff's expert's) testimony affords such support in this case. Thus, he testified that the happening of the accident itself, namely, the removal of more than 33 1/3 percent of the bone and the failure to provide internal or external support, was not the exercise of proper care by a surgeon performing a bone tumor removal from the femur. * * *’ If that testimony supports a res ipsa instruction, then every malpractice case which gets to the jury is a res ipsa case, for all that the testimony really amounts to is a statement that a particular act or omission to act was negligent. Yet, what brought plaintiff's misfortune to the attention of the courts, is not the fact that, in one doctor's opinion, the defendant failed to take proper precautions after taking out a certain amount of bone. It is, rather, the accident in her living room several days after the operation. In pointing this out, we are not to be misunderstood to imply that we believe that plaintiff's case lacks the element of ‘exclusive control,’ necessary for the application of res ipsa. We readily concede that she adequately negatived that the fracture was caused by ‘extraneous harmful’ Forces. (Escola v. Coea Cola Bottling Co., 24 Cal.2d 453, 458–459, 150 P.2d 436.) We merely point out that there is a distinction between a negligent act or omission and the accident caused thereby.

1.  The good fortune of plaintiff that the tumor was non-malignant is no credit to defendant. The fact that plaintiff was subjected to two further operations, an additional month of hospitalization, a more extended period of recuperation, and the obvious attendant pain and suffering were attributable to defendant, and it is to the right of plaintiff to recover for these allegedly unnecessary and properly avoidable injuries that the claim of plaintiff is directed.

2.  There is no question raised as to the correctness of the wording of the instructions if they were legally applicable; hence, no reference in that respect is necessary.

3.  Intramedullary nail and Jewitt pin were considered of this type of device.

4.  This is described in the record as ‘a hammock that you put the extremity in and then the patient has to stay in bed.’ Defendant stated that a cast or bed restriction were not ‘fixation devices,’ but were ‘immobilization devices.’ The semantics do not affect the issue.

5.  In Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 164, 41 Cal.Rptr. 577, 583, 397 P.2d 161, 167, it is stated: ‘The plaintiffs, out of the mouths of defendants and their witnesses, proved that the injury could occur as a result of negligence. There is also evidence that the injury could occur without negligence. In such circumstances the jury should be instructed that if they find certain facts to be true they should apply the inference involved in res ipsa.’

6.  In a footnote on page 797, the majority opinion seeks to suggest that a more adequate instruction was given to plaintiff. This is not the fact, for even that instruction was limited to care while walking and had nothing to do with any other risk: ‘Q Did you have any instructions while you were in the hospital with regard to ambulating on the crutches? A Just not to put any weight on the leh—on the left leg.’

7.  The nail was removed in June 1964, in a subsequent operation for that purpose.

8.  Defendant's statement of history and physical examination of plaintiff states: ‘General health good.’ ‘Patient is a healthy appearing 67 year old white female.’ Plaintiff testified she was in ‘very good health.’ Plaintiff's expert, following his examination some time after the removal of the pin, found a ‘very well healed fracture site.’ Dr. Bock was asked: ‘Doctor, is there any surgery that because of the patent's age, stipulating that the patient is in good physical condition for [his] age, is there any operation that because of the mere fact of a patient's age would ordinarily be considered minor but because of the age factor would fall into the category, then, of a major operation?’ Dr. Bock answered: ‘No, I don't think there is any delineation. What I am saying is age makes no delineation.’

9.  This theory includes the contention that the defendant, in the proper performance of his duties, would have correctly diagnosed the tumor from the history and X-rays as a nonmalignant osteoid osteoma, in which case only the nidus (place of development or nucleus of the tumor) would be removed, and that this was the ‘one and only way to handle the situation in 1963 in this community.’

10.  ‘Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant's possession. [Citing cases.] As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556, 20 A.2d 352, 354, ‘defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; * * * to get to the jury the plaintiff must show that there was due care during that period.’ Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: ‘Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct.’ [Citation.] It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. (Cf. Prosser, supra, p. 300.) If such evidence is presented, the question becomes one for the trier of fact (see, e. g., MacPherson v. Canada Dry Gingerale, Inc., 129 N.J.L. 365, 29 A.2d 868, 869), and, accordingly, the issue should be submitted to the jury under proper instructions.'

11.  For an analysis of ‘inference’ or ‘presumption,’ see Vol. 45, No. 4, Journal of the State Bar of Calif., p. 468 et seq. (Burden of Proof, Res Ipsa Loquitur); Witkin, Calif.Evid. (2d Ed.), § 260, p. 222; Id., 1969 Supp., p. 80.

12.  The ‘superior knowledge factor’ is not necessary, and ‘the doctrine [of res ipsa] may be applied even though the defendant is not in a better position than plaintiff to explain what occurred if it appears more probable than not that the injury resulted from negligence on the part of defendant.’ (Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 445, 247 P.2d 344, 349.) It remains a persuasive reason for applying the doctrine.

13.  The defendant freely conceded that plaintiff continued under his care and supervision not only for the surgery, but ‘for the period of time until the healing process took place.’

FOOTNOTE.  FN‘5. When the evidence is conflicting, or subject to different inferences, as to whether the alleged negligence is to be measured by reference to the standard of good medical practice set by physicians of good standing in the community, a question of fact arises which must be left to the jury under proper instructions. [Citation.] Such a question emerges in a case like the one before us in which the facts show a possibly negligent act or omission (i. e., leaving decedent alone in a room with an openable window) which defendant seeks to justify as part of a course of ‘medical’ treatment involving the exercise of professional judgment (‘open door’ therapy). The jury must determine whether the defendants instituted a course of conduct, or act or omission, for a good faith ‘medical’ reason. The appropriate standard of care to be applied depends on the results of such a determination.

14.  I do not subscribe to the majority's suggestion that my conclusions in this case encompass the theory of responsibility as postulated by the concurring opinion of Justice Tobriner in Clark v. Gibbons, 66 Cal.2d 399, 414, 58 Cal.Rptr. 125, 426 P.2d 525. I have not commented or intended to comment herein on the merits of that intriguing theory.

15.  In the initial stages of the trial, the judge instructed the jury in part as follows:‘Now, when it comes to the matter of establishing negligence on the part * * * or determining whether there is negligence on the part of a doctor, surgeon, or specialist, in cases of this particular character, the evidence must come entirely from the people in the same practice.‘In other words, the only testimony that you may consider in cases of this kind with reference to whether the doctor did possess the degree of learning or skill and whether he used that degree of learning or skill and whether he used that degree of skill and care that is required of him, you can only judge that from the testimony of expert witnesses in that same field.‘Will you follow that entirely?’‘Now, the law is that the burden of proof is on the person of the one who has the affirmative of an issue. In other words, throughout this entire case, the burden will be on the plaintiff to prove, by a preponderance of the evidence, that the defendant was negligent in the particulars I have indicated, and that his negligence was the proximate cause of injury to her. And that burden never shifts. It is always with the plaintiff * * *’‘Now, you judge the credibility of all witnesses by precisely the same standard. In this case, as I have stated before, the evidence must come from expert witnesses, so there is no room, in a case of this kind, for you to use your common knowledge. You will have to determine the preponderance of the evidence, with respect to whether or not there was negligence on the part of this doctor, from the testimony of witnesses * * * experts.’‘* * * As I say, in cases of this kind you cannot use your common knowledge in determining whether the witness is right or wrong, because this is not a common knowledge case * * * in other cases you can use your common knowledge, but not in this particular case * * *’

KAUS, Presiding Justice.

AISO, J., concurs.

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