BARDESSONO v. MICHELS

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Court of Appeal, Second District, Division 4, California.

Dennis BARDESSONO, Plaintiff and Respondent, v. Jean MICHELS, Defendant and Appellant.

Civ. 34445.

Decided: March 26, 1970

Schauer, Ryon & McIntyre, and Robert W. McIntyre, Santa Barbara, for defendant and appellant. Halde, Barrymore & Stevens, and Ronald C. Stevens, Santa Barbara, for plaintiff and respondent.

This is a medical malpractice action in which plaintiff alleged that he sustained paralysis of several muscles following an injection administered by defendant physician. The jury returned a verdict of $42,000 for plaintiff.

Plaintiff, a 31-year old electronics technician, noticed stiffness and soreness in his right shoulder some time before June 12, 1966. He continued working as an electronics technician and also performed some work on his 4 1/2 acre ranch. On July 12, 1966, the defendant, Dr. Michels, an orthopedic surgeon, diagnosed defendant's condition as bicipital tendonitis and posterior shoulder capsulitis, which is an inflammation of the tendons and ligaments—a condition sometimes related to strenuous physical activity. As treatment for the condition so diagnosed, Dr. Michels injected plaintiff's shoulder joint with a solution of kenalog (a derivative of the ‘cortisone family’) and xylocaine (an anesthetic). She used a 5 cc syringe and a needle 2 1/2 to 3 inches long. At the moment of injection, plaintiff experienced shock-like pain; his arm was limp, trembling, and felt as though he had slept on it. Plaintiff had never experienced pain of that sort prior to the injections by Dr. Michels. The doctor prescribed empirin with codeine to relieve the pain.

The pain in the arm and shoulder continued and, on July 23rd, plaintiff sought admission to a hospital. Defendant was called, took plaintiff to her own office and administered another injection. The arm seemed to get worse.

At the suggestion of plaintiff's family doctor, plaintiff then consulted Dr. Burgess, also an orthopedic surgeon. Dr. Burgess found that plaintiff's right shoulder was wasting and that the muscles were atrophying. Plaintiff was placed in the hospital, where he had extensive diagnostic tests, including x-ray, a myelogram, and an electromyogram. The ultimate diagnosis was that plaintiff was suffering from paralysis of five major muscles due to ‘trauma’ to peripheral nerves located in a nerve complex called the ‘posterior cord of the brachial plexus.’ This is a nerve trunk, not quite as big as an ordinary pencil, which is located inside the neck-shoulder underneath the collar bone and deep in the middle of the neck-shoulder area. The nerve runs from the neck down. At the time of trial, plaintiff's muscles still showed atrophy.

When examined by counsel for plaintiff as to the relation between the injections administered by defendant and the condition as diagnosed by Dr. Burgess, Dr. Burgess testified as follows:

‘Q Now, could the injection that Mr. Bardessono had on July 12th, 1966, have caused the paralysis which you observed?

‘A I don't know.

‘Q It is a possibility, isn't it, Doctor?

‘A Well, I wasn't there, I don't know what——

‘THE COURT: (Interposing) Well, he is speaking from a theoretical standpoint. You said it could have been traumatic in origin, and you mentioned trauma by needle, didn't you, Doctor?

‘THE WITNESS: I didn't. I think Mr.——

‘THE COURT: Pardon?

‘THE WITNESS: I say I didn't, but I think he did.

‘THE COURT: Well, did you agree with that?

‘THE WITNESS: Yes.

‘THE COURT: Is that correct, that it could be a trauma resulting from the injection of the needle?

‘THE WITNESS: I have never seen it, but theoretically it is possible.

‘MR. STEVENS: Doctor,—excuse me, your Honor.

‘THE COURT: We are getting down to the nub of this thing now. You may proceed.

‘Q BY MR. STEVENS: Doctor, in all your testing, all your observations, were you able to determine any cause, any possibility for Mr. Bardessono's paralysis?

‘A No.

‘MR. STEVENS: I have no further questions.

‘THE COURT: Doctor, assuming that the cause was traumatic in origin, is this the type of injury which ordinarily does not occur in the absence of negligence in the administering of the particular injection?

‘THE WITNESS: No, it does not occur.’

On cross-examination, Dr. Burgess elaborated further:

‘Q Doctor, what do you mean that it does not occur?

‘A It does not occur ordinarily, I think the word was.

‘Q It is not a common occurrence?

‘A It is not a common occurrence.

‘Q Have you ever in your experience known of a disorder of this type occurring from the injection of the capsule in the shoulder, or the bicipital tendon?

‘A I have never seen it.

‘Q Have you ever heard of it?

‘A No.

‘Q Doctor, in the course of your practice, your study of law, have you ever heard——?

‘THE COURT: Study of what?

‘MR. McINTYRE: Study of medicine, I beg your pardon.

‘Q BY MR. McINTYRE: Study of medicine,——?

‘THE COURT: Are you a lawyer, also?

‘THE WITNESS: No, not yet.

‘Q BY MR. McINTYRE: Have you ever heard of paralytic brachial neuritis?

‘A I know very little about it. I have never seen it; I am sure that it is a vague condition, but I know very little about it.

‘Q Do you think the onset of this difficulty in the plaintiff's shoulder two weeks before he consulted the doctor has any significance here from the standpoint of when a traumatic injury was caused, when it happened?

‘A It is possible. As I said before, I don't know what caused his paralysis.

‘We have the history of him lifting, pitching hay at home, and conceivably, I think, one could make a case for that. I have never seen anyone paralyzed from pitching hay, either.

‘Q Have you ever heard of the colloquial term ‘haypitchers' palsy?’

‘A No, I don't think that I have.

‘Q Are there any major nerves in the path that the needle takes in injecting the capsule of the tendon from the front or rear?

‘A From the front, in the area of the biceps tendon, no there are no nerves. From the rear, it is possible. These nerves actually go underneath the shoulder joint and slightly to the front. It is difficult to conceive how a needle going towards the biceps tendon could even get near them. Going from the back it is possible if you went deep enough you could get near them.

‘Q Is it possible for the—is the posterior of the brachial plexus anywhere near the path of these two injections?

‘MR. STEVENS: Excuse me, your Honor. I believe the doctor's testimony was that he didn't know where the injection was, and so therefore there is no foundation for that question.

‘MR. McINTYRE: Well, an injection into——

‘THE COURT: Well, he is assuming this for the purpose of the purpose of the question, are you not, Mr. McIntyre?

‘Q BY MR. McINTYRE: The doctor—you saw the puncture marks, did you not, on the patient, where the injections had been made?

‘A I think I did. I didn't make a note about it. But I recall him pointing out to me where.

‘Q Now, were they in any unusual position on the body?

‘A I think there was one from the front and one in the back.

‘Q Front of the shoulder?

‘A Yes.

‘Q And the back of the shoulder?

‘A Yes.

‘Q They weren't—would an injection made from those points be anywhere near the posterior cord of the brachial plexus?

‘A Not very close.

‘Q How far away would it be?

‘A Well, it depends how far the needle went in and what direction it went in. All I saw——

‘Q Well, assuming that the needle went into the capsule of the joint?

‘A If it went in the posterior capsule of the joint, no, it would not be very close.

‘Q Well, if it went into the bicipital tendon, would it be very close?

‘A No.’

As is obvious, the theory of plaintiff's case is that the paralysis and atrophy were caused by the injections administered by defendant and that those injections were negligently administered. It is the theory of defendant that the paralysis and atrophy are due to some pre-existing trauma, probably traceable to plaintiff's activities in farming and that there was no connection between the treatment she had administered and the condition for which plaintiff seeks damages in this law suit.1 Her own testimony, and that of an expert called by her, is cited in support of the defense theory. That testimony points out, among other factors, that the point of injection as testified to by her is a long distance from the nerve which Dr. Burgess found to be injured.

Defendant's position on this appeal is that the evidence did not support the instructions as given and that, except as the doctrine of res ipsa loquitur could properly be invoked, there was no negligence shown by the evidence. We conclude that, while a properly phrased ‘conditional’ res ipsa loquitur instruction would have been proper, the instructions actually given were not based on the record.

The trial court instructed as follows:

(Instruction No. 15): ‘In determining whether defendant's learning, skill and conduct fulfilled the duties imposed on her by law, as they have been stated to you, you are not permitted to set up arbitrarily, a standard of your own. The standard, I remind you, was set by the learning, skill and care ordinarily possessed and practiced by others of the same profession in good standing, in the same or a similar locality and under similar circumstances at the same time.’

(Instruction No. 20): ‘You must decide the following question[s] concerning the injury involved in this case.

‘Is it the kind of injury which ordinarily does not occur in the absence of negligence?

‘[Whether the injury is one which ordinarily does not occur in the absence of negligence is to be determined from the evidence presented in this trial by physicians and surgeons called as expert witnesses,] common knowledge and all the circumstances. W.P.B., J

‘Was the injury caused while the plaintiff was exclusively under the care or control of the defendant[s]?

‘Was the injury due to any voluntary action or contribution on the part of the plaintiff?

‘If, and only if, you find that the plaintiff's injury was of a kind which ordinarily does not occur in the absence of negligence, was caused while the plaintiff was exclusively under the care or control of defendant, and was not due to any voluntary action or contribution by the plaintiff, you are instructed as follows:

‘From the happening of the accident involved in this case, an inference may be drawn that a proximate cause of the occurrence was some negligent conduct on the part of the defendant.

‘If you draw such inference of defendant's negligence then, unless there is contrary evidence sufficient to meet or balance it, you will find in accordance with the inference.

‘In order to meet or balance such an inference of negligence, the evidence must show either (1) a definite cause for the accident not attributable to any negligence of defendant, or (2) such care by defendant that leads you to conclude that the accident did not happen because of defendant's lack of care but was due to some other cause, although the exact cause may be unknown. If there is such sufficient contrary evidence you shall not find merely from the happening of the accident that a proximate cause of the occurrence was some negligent conduct on the part of the defendant.’

(Instruction No. 21): ‘In determining whether an accident was of such a nature that it probably was the result of neligence by someone, you may rely upon the common knowledge among laymen that injections in the arm, as well as other portions of the body, do not ordinarily cause trouble unless unskillfully done, or there is something wrong with the serum, and also you may rely upon the testimony of expert witnesses, as well as all the circumstances relating to the accident in this case.’

We are cited to no place in the record, and our own reading has found none, where there was any expert testimony as to the standard of care as defined by the trial court in Instruction No. 15 and to which the court told the jury defendant must adhere.

Nor can we agree that the trial court, on this record, could properly tell the jury, as it did in Instruction Nos. 20 and 21, that it could look to ‘common knowledge’ to determine whether the injury to plaintiff was one which ordinarily does not occur in the absence of negligence.

Cases outside of California almost unanimously reject the idea that a conditional res ipsa loquitur instruction can be given, based on any ‘common knowledge’ of the probable effects of a hypodermic injection. The language used by the Supreme Court of New Mexico is typical. In Buchanan v. Downing (1964) 74 N.M. 423, 394 P.2d 269, 272, that court said:

‘We do not doubt that there are cases involving malpractice in which the doctrine [of res ipsa loquitur] should be applied; but to allow a layman, be he judge or juror, to determine that merely because an injection does not ordinarily cause trouble, that therefore, if it does, negligence is implied, is not to us a proper means of determining such an issue. The mere fact that most of us are familiar with injections does not in any sense qualify us as experts in this branch of the medical science. Many things can go wrong, insofar as injections are concerned, and the explanation therefor must be left to those who are schooled and trained in that science.‘2

Plaintiff relies on the language used in three California cases: Wolfsmith v. Marsh (1959) 51 Cal.2d 832, 337 P.2d 70; Seneris v. Haas (1955) 45 Cal.2d 811, 291 P.2d 915; and Bauer v. Otis (1955) 133 Cal.App.2d 439, 284 P.2d 133. We do not find those cases apposite to the case at bench. In all three cases, the trial court had refused to give any instruction on res ipsa loquitur; we do not know what form of instruction the court might have given. In all three cases there was strong expert testimony to the effect that the injury involved would not usually occur in the absence of negligence. In two of the cases, the injection involved was into the fleshy part of the body. But in the case at bench, we are faced with a particular instruction in which the expert testimony (above quoted) was minimal, and involving an injection into a very special part of the body. To say, as did the court in Bauer (at page 444, 284 P.2d at page 136): ‘* * * it is a matter of common knowledge among laymen that injections in the muscles of the arm,3 as well as other portions of the body, do not cause trouble unless unskillfully done or there is something wrong with the serum. Needle injections of cold shots, penicillin, and many other serums have become commonplace today,’ is to speak of quite a different situation than the one now before us. We do not deal, here, with the common type of cold shots into the buttocks or the flesh of the arm, but with an injection into a small area, crowded with bone, muscle and nerve. This injection is of the type which this court considered in LeMere v. Goren (1965) 233 Cal.App.2d 799, at page 808, 43 Cal.Rptr. 898, at page 904, wherein we said: ‘With respect to this particular type of injection, common knowledge of laymen is not a reliable foundation.’

Plaintiff argues that the record shows that an injection of the type given by defendant is the common technique for the ailment diagnosed by her and that it is ‘common knowledge’ that such injections are used for that purpose. But that argument misses the point at issue. While, if a mode of treatment is unusual and not commonly known, it would follow that there could be no ‘common knowledge’ as to its effects, the converse is not necessarily true. We are concerned here with the existence of a knowledge, common to laymen, of the effect of a particular mode of treatment. A layman may know that physicians often use a particular treatment for a particular illness and still be entirely ignorant of the likelihood vel non of adverse effects from that treatment. It is the latter knowledge which is lacking with respect to the kind of injection herein involved.

In short, while the medical evidence for the plaintiff would have supported the giving of a conditional res ipsa loquitur instruction directing the jury's attention to that expert testimony as a basis for a possible finding of negligence, it was error to allow the jury to base a negligence finding on common knowledge as to injections. The error requires a reversal.

Defendant argues, also, that it was error to give any res ipsa loquitur instruction because, even if a jury could legitimately have found negligence on her part in the manner of injection, the evidence failed to show any causal connection between the injections given by her and the injuries complained of. But the evidence as to the exact place of injection, and the number of injections given, is not such as to support that contention. If defendant's own testimony is believed, she made a single injection, from the back of the shoulder, at a point several inches from the nerves of the brachial plexus, using a needle which could not have reached a point anywhere near to those nerves. But other evidence supports the possibility that the length of her needle, the angle of injection, and the number of shots, might have reached and affected the nerves in question. Although the medical evidence to support plaintiff's theory of causation was slight, we cannot say that it was not enough to raise an issue for the jury on the matter of causation.

Defendant moved for a new trial, supporting her motion by affidavits tending to show misconduct on the part of the jury: (1) in communicating with the bailiff; (2) in conducting its own investigation; and (3) in reaching a quotient verdict. Plaintiff filed no opposing affidavits but, at the hearing on the motion, he produced, and the trial court received without objection, oral testimony contradicting and explaining the affidavits filed by defendant.

Proceedings for a new trial are strictly statutory, and section 659a of the Code of Civil Procedure provides only for affidavits as a means of contradicting the moving party's contentions. Except in the case where a party shows that a necessary witness has refused to give an affidavit (Saltzman v. Sunset Telephone & Telegraph Co. (1899) 125 Cal. 501, 58 P. 169), we can find no authority for the practice herein followed and, in one case, a trial court has been held to have acted properly in refusing to hear oral evidence on a new trial motion. (People v. Sullivan (1900) 129 Cal. 557, 62 P. 101.)

But we do not regard the provisions relating to the manner of proof as being jurisdictional in character. Defendant made no objection in the trial court either to the form of plaintiff's proof, nor to the fact that it came in after the 10 days allowed by section 659a. Under those circumstances, no objection lies here to the procedure followed in the trial court.

We need not here determine whether all of the matters relied on are now available for proof by the jurors under People v. Hutchinson (1969) 71 Cal.2d 342,a 78 Cal.Rptr. 196, 455 P.2d 132. It is well settled that, when a motion for a new trial is based on the alleged misconduct of the jury and there are affidavits and counteraffidavits with conflicting statements, a question of fact for the trial court is presented and its finding will not be disturbed on appeal. (Buhl v. Wood Truck Lines (1944) 62 Cal.App.2d 542, 144 P.2d 847.) In the case at bench there was substantial conflict in the declaration of the jurors, that conflict was resolved by the trial court, and it cannot be re-examined on appeal.

The judgment is reversed.

FOOTNOTES

1.  It is admitted that injections of cortisone or one of its derivatives and xylocaine is an approved and standard method of treatment for the condition diagnosed by defendant. The claim herein is based on alleged negligence in the manner of administration and not on the treatment per se.

2.  To the same effect, Toy v. Rickert (1958) 53 N.J.Super. 27, 146 A.2d 510, 514: ‘The practice of medicine concerns itself with a relatively inexact science. There are many variables and imponderables concerning hypodermic injections which are not within the common knowledge and experience of men. These factors lend meaning to the ordinary rules which require expert proof of the standard practice and deviation therefrom in cases such as this.’

3.  Emphasis supplied.

FOOTNOTE.  FNa. 71 A.C. 360.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.