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

George SCHLIESMAN, Plaintiff and Respondent, v. Robert FISHER, M.D., et al., Defendants and Appellants.

Civ. 54040.

Decided: September 20, 1979

Bonne, Jones, Bridges, Mueller & O'Keefe, Santa Ana, Horvitz, Greines & Poster, a law corp., Irving H. Greines and Alan G. Martin, Encino, for defendants and appellants. William Jerome Pollack, Beverly Hills, and Peter B. O'Brien, Los Angeles, for plaintiff and respondent.

Appellants Robert Fisher, M.D., and Barbara R. Lewis, Executrix of the Estate of Leonard Lewis, M.D., appeal a jury verdict and award of $80,000.00 rendered on behalf of respondent George Schliesman on a theory of appellants' medical malpractice. Appellants contend that prejudicial error was committed by the trial court by failing to give appellants' requested instruction, BAJI 6.28, on contributory negligence, by giving BAJI 6.05 on abandonment of a patient by his physician and by refusing to record at-bench discussions. In addition, appellants assert that their motion for a new trial should have been granted, and that there was insufficient evidence to support the verdict.


Robert Fisher, M.D. and Leonard Lewis, M.D. (hereinafter appellants) had treated George Schliesman (hereinafter respondent) since 1969 for various medical problems, including diabetes mellitus, arteriosclerotic heart disease, peripheral vascular disease, gout, hypertension and distal extremity ulcerations. The diabetes was generally controlled with the administration of Orinase in spite of the fact that respondent was approximately 100 pounds overweight and did not adhere to his prescribed diet. The recurrent ulcerations on his feet were treated with antibiotics, hot soaks, and elevation of the affected extremity.

From November 19 to 22, 1972, respondent was hospitalized for congestive heart failure. At this time, Dr. Fisher discontinued the Orinase, instituted a diabetic diet and recounseled respondent regarding the importance of diet as the preferred means of controlling his diabetes. Dr. Fisher's decision to discontinue the Orinase was based upon a recent medical study linking Orinase to increased incidences of heart disease in diabetics. When respondent was seen for follow-up care on December 5, 1972, Dr. Fisher felt that the cardiac risks associated with Orinase were sufficiently severe to justify keeping respondent off the medication in spite of elevated blood sugars. Further, Dr. Fisher's experience with respondent had been such that he felt that respondent was not responsible enough to be given insulin. Respondent's failure to follow medical advice regarding adherence to his diabetic diet and the need for his discontinuance of beer drinking, together with his tendency to periodically stop taking his medication, led Dr. Fisher to believe that respondent was sufficiently unreliable to be prescribed insulin for control of his diabetes, since misuse of that drug could cause rather immediate and life-threatening consequences.

Dr. Fisher next saw respondent on December 18, 1972 regarding pain and inflammation of his left foot. The evidence is in conflict as to whether the foot was merely inflamed or had already ulcerated at the time of this examination. The usual antibiotic treatment, hot soaks and elevation were prescribed. Two days later, December 20, 1972, respondent presented at the Santa Monica Emergency Room with a draining ulcer on his left foot. Since the emergency room attending physician could reach neither Dr. Fisher nor Dr. Lewis by phone, respondent was given a tetanus shot and sent home. When respondent reached Dr. Lewis a few hours later, immediate arrangements were made for hospitalization. Once hospitalized, respondent was treated with a broad-spectrum antibiotic, Erythomycin. Orinase was reinstituted, culture and sensitivity tests were ordered to determine the organism that was causing the infection, and a general surgical consultation requested.

On December 21, 1972, Michael Fortier, M.D. (a general surgeon and also a defendant at trial) examined respondent and generally approved the treatment prescribed by Dr. Lewis. On December 23rd, however, Dr. Fortier noted a demarcation line across the dorsum of respondent's foot, which indicated that the tissue below the line was dead. He recommended a vascular consultation to determine whether there was any possibility that a procedure less drastic than amputation of the foot was a viable alternative. This consultation was performed by Stuart Hodash, M.D., who saw respondent twice, on December 23 and 24, 1972. On the 24th, Dr. Hodash ordered an arteriogram to be performed in order to determine whether any of the major arteries in the foot or leg were blocked. He testified that if such a blockage were shown, it could be remedied and the blood supply restored to the foot. If no such block were discovered, it would indicate that the loss of circulation to the foot and corresponding death of the tissue in the area of the ulcer was due to disease of the small blood vessels, for which a surgical procedure less drastic than amputation would be futile. As a result of the arteriogram, Dr. Hodash concluded that respondent had either arteriosclerotic or peripheral vascular disease of longstanding duration which had progressed to the point that the foot was not getting the blood supply necessary for the infection to be healed. He felt at that time, therefore, that the infection would continue to result in the death of tissue on the foot, that gangrene was setting in, and that the condition would ultimately require below the knee amputation.

Respondent was subsequently transferred to Crescent Bay Convalescent Home on December 28, 1972. It is unclear whether this transfer was made primarily due to pressure from MediCal or because Dr. Lewis felt respondent was no longer a candidate for the acute facility and that supportive care directed to clearing up the infection as completely as possible prior to amputation could be adequately provided at an extended care facility. Dr. Lewis saw respondent seven times while he was at Crescent Bay (December 29 and 30, 1972, and January 6, 8, 12, 16, and 23, 1973.) Dr. Fortier performed a debridement (removal of dead tissue) of the infected foot on January 15, 1973, in the patient's room utilizing sterile instruments and surgical gloves. Dr. Fortier notified Dr. Lewis that arrangements should be made to amputate the leg and advised respondent of the impending surgery. There was a delay in effecting a transfer back to Santa Monica Hospital due to an unavailability of surgical beds, however. In the interim, respondent himself arranged to be transferred to Century City Hospital on January 27, 1973, under the care of another physician. A below-the-knee amputation was performed on January 31, 1973.

The record contains numerous conflicts in testimony regarding the accuracy and adequacy of treatment rendered at crucial points in respondent's care. There was considerable difference of opinion between the testifying physicians as to whether Orinase should have been discontinued following respondent's congestive heart failure and the role the resultant high blood sugars played in the occurrence and severity of the foot infection. There was also conflicting testimony regarding the condition of respondent's foot at the time of his office visit to Dr. Lewis on December 18, 1972, and whether it was infected at that time or merely inflamed. Likewise, the expert testimony conflicted as to whether, if it was merely inflamed at that time, the ulceration had sufficient time to develop between the date of the first examination, December 18, and the date of hospitalization, December 20, 1972. There was additional conflicting testimony regarding the efficacy of oral antibiotics, given that circulation to the foot was substantially impaired, intravenous or topical antibotics being then indicated but not given, and whether debridement can safely be performed outside an acute facility.

Appellants' first contention on appeal is that the trial court erred when it refused to give a proffered instruction for the defense on contributory negligence. For the reasons stated below, we are in agreement with appellants.

“It is hornbook law that each party to a lawsuit is entitled to have the jury instructed on all of his theories of the case that are supported by the pleadings and the evidence. It is incumbent upon the trial court to instruct on all vital issues involved. (Citations.) Contributory negligence is a basic defense in a personal injury action (Citations). A trial court, where there is evidence to support such a defense, may not, by refusing to instruct on it, deprive a party of this defense. If it does, the error in refusing to instruct on it is obviously prejudicial in any case where the evidence admitted in support of the defense, if believed, would support a verdict in favor of the complaining party. (Citations.) [¶] Where the evidence on the issue of contributory negligence is conflicting, and would support a finding either way, the question is one of fact and not of law, and must be decided by the trier of the facts (Citations). [¶] Thus, the basic question presented in this case is whether or not there was evidentiary support for the defense of contributory negligence. If there was such support, it was prejudicial error not to have given the proffered instructions.” (Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806-807, 13 Cal.Rptr. 401, 403, 362 P.2d 33, 35; see also Ng v. Hudson (1977) 75 Cal.App.3d 250, 254, 142 Cal.Rptr. 69.)1

It is clear that the basic question in this case is identical to that presented in Truman Excavation Co., supra. Further, as in Truman, “[w] hile the evidence as to the negligence of defendants may appear to some of us to be strong, and the evidence as to the contributory negligence of the plaintiff to be slight, there is some evidence of a substantial character to support such a defense.” (Id., at p. 807, 13 Cal.Rptr. at pp. 403-04, 362 P.2d at pp. 35-36.) Here, while the great bulk of testimony was aimed at establishing or refuting that the appellants' care of respondent fell below the applicable standard for medical care, there was still substantial evidence from which the jury could have found that respondent was himself negligent in failing to follow the orders of his physicians regarding diet, weight reduction and medications and that such negligence proximately contributed to the ultimate loss of his leg.

Robert Uller, M.D., testified for appellants. He is a physician who specializes primarily in endocrinology, with approximately 40% or more of his practice dealing with diabetic patients. Dr. Uller testified that patients like respondent, who are “adult-onset diabetics,” are generally obese individuals whose pancreas manufactures a relatively normal amount of insulin, but because of the increased body weight, the amount is insufficient for that individual and the individual's blood sugar is correspondingly high. Further, he testified that a reduction in weight is the best treatment for such patients, as it results in a drop in the level of blood sugar, which can then be further controlled by diet. Speaking of respondent specifically, he said: “In this particular problem the patient is his own worst enemy because you can only tell him what diet to follow, and the big problem here to date with the blood sugars by and large has been obesity. 290 pounds and six-foot-two, 280 pounds in a six-foot-two individual, that's about 100 pounds above ideal body weight for a man of, say, large boned structures, six-foot-two individual, so if the individual would follow the diet, you know, the blood sugars would be no problem.” Further, Dr. Uller testified that the fact that respondent responded extremely well to insulin therapy while hospitalized was an indication that his diabetes would respond well if he were to follow the recommended diabetic diet. In fact, the hospital records revealed that respondent had to be taken off of insulin after three days because of a suspected insulin reaction. Dr. Uller attributed this response to the fact that while hospitalized, respondent was forced to adhere to the diet prescribed by his physicians, which brought his blood sugars close to the normal range. Administering insulin, then, had the effect of producing an overabundance of insulin in respondent's system. This effect, Dr. Uller testified, pointed to the fact that respondent's diabetes would have responded adequately to diet if respondent would have followed his doctors' orders in this regard.

Respondent contends that there is nothing in the record to indicate that there is a direct relationship between the control of diabetes, or lack thereof, and the incidence of infection leading ultimately to gangrene and amputation. The testimony of his own experts, however, contradicts this assertion. Gerard F. Smith, M.D., testified on behalf of respondent. In the course of that testimony he stated: “Diabetics are more prone to ulcerations, and develop infection because of their high blood sugar. [¶] High blood sugar is a media for bacteria to grow. Therefore, if the sugar is out of control and the area to this leg is impaired, we have two factors working: One, we got a good culture media of the existing blood that is there for the bacteria to grow on; [¶] Two, we have sugar that is markedly out of control, both of which will cause increased infection.” Also testifying for respondent, Saul Lieb, M.D., testified: “Infection in the presence of diabetes will spread if the treatment of diabetes is not undertaken.”

We note that the foregoing testimony was aimed primarily at the notion that Dr. Lewis should not have taken respondent off the Orinase. However, such testimony also provides a foundation from which the jury could have inferred, when coupled with the prior testimony of Dr. Uller, that an out-of-control diabetic whose blood sugars are elevated is more likely to get an infection such as the one that invaded respondent's foot and that such an infection will be much more difficult to treat and cure as a result of the out-of-control diabetes. That respondent's diabetes could have been controlled by weight reduction and proper diet is a significant fact. While respondent sought to place the blame for his diabetes being out of control on Dr. Lewis for discontinuing the Orinase, it was a fact of some significance to be weighed by the jury that respondent could himself have brought his diabetes under control with diet and weight reduction and was, in fact, counseled by his doctors repeatedly to do so. The failure of the trial court to allow an instruction on contributory negligence took this consideration from the jury and denied appellants a jury trial on an essential defense.

Since we have determined that the judgment must be reversed and the case remanded for a new trial on the basis that the trial court erroneously refused to give BAJI 6.28, we discuss only the remaining contentions of appellants that may arise again at retrial and their contention regarding the sufficiency of the evidence.

Appellants contend that the court erred in giving respondent's instruction on patient abandonment by a physician, BAJI 6.05,2 in that there was no evidence that appellants abandoned respondent. We agree. We recognize that the concept of patient abandonment is not well-fleshed out in the law of this state. Few cases have dealt with the problem, and those few generally have involved situations where the physician has completely stopped caring for the patient, not where the patient merely perceives a lack of diligence in the care he is receiving from his physician. However, as noted in 1 Louisell and Williams, Medical Malpractice (1977) section 8.08, page 219: “Abandonment principles overlap negligence principles, and vice versa. Thus, whether a physician has abandoned his patient sometimes may be phrased in terms of whether he exercised ordinary skill and diligence in deciding to stop rendering service. … [¶] ․ Even where the charge of abandonment in substance only duplicates an alternative theory of negligent performance, it may serve to emphasize nontechnical aspects of the physician-patient relationship readily comprehensible by laymen—those that pertain to the basic obligation of faithfulness to professional duty.”

In this case, the jury was instructed with BAJI 6.00, “Duty of Physician and Surgeon,” which says in pertinent part: “It is his further duty to use the care and skill ordinarily exercised in like cases by reputable members of his profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed. [¶] A failure to perform any such duty is negligence…” This instruction adequately served to draw attention to the alleged lack of adequate attention paid to respondent while he was either hospitalized or in the convalescent home as part of the physician's duty to use reasonable diligence in the care of his patient. Certainly, in a case such as this a special instruction more accurately designed to fit the facts of the case might have been more helpful to the jury. However, there was no evidence in the record to support a theory of “abandonment” which warranted giving BAJI 6.05.

Appellants also contend that respondent's medical experts, Dr. Lieb and Dr. Smith, were incompetent witnesses as to the standard of medical care in the Los Angeles area since Dr. Lieb had practiced in California in the late 1940's, but otherwise had practiced out of the state, and that Dr. Smith begun practice in California after the amputation of respondent's leg, having practiced in the Buffalo, New York area prior to that time. We disagree.

It is true that traditionally the standard of care by which a defendant physician's alleged malpractice must be judged is the standard customarily observed by other physicians in good standing in the particular community in which the defendant practices. However, in California and a number of other states, the requirement that a physician who is giving expert testimony must be from the defendant physician's community has been relaxed. (See 37 A.L.R.3d 420, 430.)3

As this court had the occasion to observe in a previous case: “In Bardessono v. Michels (1970) 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 478 P.2d 480, 484, … our Supreme Court … omitted the ‘same or similar locality’ phrase as a separate element and merely stated: ‘The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (Citations.)”’ (Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 259, 95 Cal.Rptr. 901, 913.) Although in Rainer we held that the appellant did not have standing to raise an objection to an instruction requested by her which contained the “same or similar locality” phraseology, we did note that “[i]t may well be that the locality element could be more appropriately subsumed as just one of several factors encompassed in the phrase ‘under similar circumstances.”’ (18 Cal.App.3d at p. 259, 95 Cal.Rptr. at p. 913.) In a subsequent California Supreme Court case, Brown v. Colm (1974) 11 Cal.3d 639, 645-646, 114 Cal.Rptr. 128, 132, 522 P.2d 688, 692, it was stated: “The unmistakable general trend in recent years has been toward liberalizing the rules relating to the testimonial qualifications of medical experts. Thus, whereas a number of earlier cases held that a physician of necessity must possess the skill ordinarily practiced only in the same locality (see, e. g., Trindle v. Wheeler (1943) 23 Cal.2d 330, 333, 143 P.2d 932 …), only six years later this requirement was relaxed so that a physician was deemed qualified as an expert if he could testify to the practice in a similar community. (Sinz v. Owens, supra, 33 Cal.2d 749, 756, 205 P.2d 3.)․ [[[¶] There are sound and persuasive reasons supporting this trend toward permitting admissibility more readily, rather than rigidly compelling rejection of expert testimony. It is obvious that an overly strict standard of qualification would make it difficult and in some instances virtually impossible to secure a qualified expert witness.” (Italics in original.)

Consonant with this trend, it is our opinion that the proliferation of medical texts and journals and space-age communication and transportation systems, as well as the resultant loss of parochialism in medical education, supports the subsuming of the “same or similar locality” language as one of several factors encompassed in the phrase “under similar circumstances.” This later phrase enables a court to take into account, as one of such circumstances, the “medical locality” in which the defendant and the expert witness practice in order to determine whether the expert has practiced under circumstances similar to that of the defendant. The court can then judge if the witness is competent to testify as to whether the defendant, in the witness' opinion, exercised the skill, knowledge and care required. This “medical locality” “should be defined in terms of medical factors such as equality of opportunity for further medical education and intercourse and accessibility to the same kind of medical facilities and experiences.” (14 Stanford L.Rev. 884, 890.)

As for the medical experts in this case, the objection to Dr. Lieb's testimony as incompetent is untimely. No objection was entered at trial, although Dr. Lieb was cross-examined as to his experience and the locality in which he had practiced, which was New Jersey. “Where no objection to a witness' qualifications was made at trial, an objection cannot be made for the first time on appeal. (Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 775, 87 P. 622 …; People v. Roberts (1963) 213 Cal.App.2d 387, 393, 28 Cal.Rptr. 839 …)” (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 367, 133 Cal.Rptr. 42, 57.) Since appellants' counsel accepted Dr. Lieb's testimony at trial as competent objection that Dr. Lieb was incompetent to testify raised for the first time on appeal is raised too late.

An objection was made, however, in regard to Dr. Smith's competence to testify as to the standard of care to which appellants' conduct must comport. During the time up to and including the amputation of respondent's leg, Dr. Smith was practicing medicine in the Buffalo, New York area. In response to a question from the bench regarding what Dr. Smith regarded as the applicable standard of care, Dr. Smith said: “The standard of treating a patient like Mr. George Schliesman would be the same in New York as it would be in California.” The trial judge then allowed Dr. Smith to testify as to his opinion that Mr. Schliesman had received care which he characterized as “substandard practice in medicine.”

We agree with the trial court's ruling. Based upon our foregoing discussion, the fact that Dr. Smith had practiced in a metropolitan area for 13 years, despite the fact that it was not only outside the Southern California area, but on the other side of the country, in this modern day meets the requirement that he would have practiced under similar circumstances as the appellants. Therefore, his testimony was entirely competent upon the issue of the standard of care and whether, in his opinion, the appellants met that standard in their treatment of Mr. Schliesman.4

Somewhat linked to appellants' arguments regarding the competency of respondent's expert witnesses, is their contention that the judgment is not supported by substantial evidence. However, we disagree. The testimony of Drs. Lieb and Smith was sufficient for the jury to find that appellants had been negligent in their care of respondent. Dr. Smith in particular stated that he felt that it was substandard practice to transfer respondent to a convalescent home considering the condition of the foot—the impending gangrene of the great left toe and the open, oozing would—and that he felt there was a need for isolation, daily changing of dressings on the foot, and irrigation to the wound with an antibiotic solution, none of which was done. In addition, Dr. Smith testified that respondent's open wound should not have been exposed to the common shower environment in the convalescent home, nor should have have been allowed to travel the 100 feet from his room to the shower area on at least five occasions after debridement of the would, but should have been kept at complete bed rest. Further, it was his opinion that had these detrimental measures not been instituted, but alternate therapy as could only have been done in an acute facility, the infection might have been cleared up. This testimony was sufficient evidence from which the jury could have determined that appellants were negligent in their care of respondent.

In light of our holding that the judgment should be reversed and the case remanded to the trial court for a new trial based upon the failure of the trial judge to give appellants' instruction on contributory negligence, we need not address appellants' remaining contentions.

The judgment is reversed and the case remanded for a new trial.


1.  We recognize that Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, was decided between the time the action was originally filed and the judgment entered, in which case the complete defense of contributory negligence was abrogated in favor of a system of comparative negligence. That case specifically provided that “… if any judgment be reversed on appeal … this opinion shall be applicable to any retrial.” (13 Cal.3d at p. 829, 119 Cal.Rptr. at p. 876, 532 P.2d at p. 1244.) Therefore, at retrial, the appropriate instruction would be one covering the principle of comparative negligence, rather than contributory negligence.

2.  BAJI 6.05 reads: “Duration of Physician's Responsibility. [¶] Once a physician and surgeon has undertaken to treat a patient, his employment and duty as a physician to the patient continues until [ended by consent [or] [ [ [request] of the patient] [or] [the physician withdraws from the case after giving the patient notice and a reasonable time to employ another doctor] [ [or] [the condition of the patient is such that the physician's services are no longer reasonable required]. [¶] A physician and surgeon may limit his obligation to a patient by undertaking to treat the patient [ [only for a certain ailment or injury] [or] [only] [ [at a certain time or place]. If he so limits his employment, the physician is not required to treat his patient [for any other ailment or injury,] [ [or] [at any other time or place].”

3.  The “strict locality rule” defines negligence in malpractice cases as failing to exercise in diagnosis and treatment that reasonable degree of care, skill and knowledge ordinarily possessed and exercised by physicians and surgeons in good standing in the same or similar locality under the same or similar circumstances. In this case, rather than being concerned strictly with what standard would be appropriate by which to judge the conduct of appellants in their care of respondent, we are concerned with the qualifications of expert witnesses bearing upon their competence to testify as to their knowledge of that standard. However, our discussion in this regard of necessity also applies to the standard of care itself.

4.  Although it may be necessary in some cases for an inquiry to be made as to the actual similarity of the “medical localities,” in this case Dr. Smith had also practiced in the four years immediately following the amputation and preceding the trial in the Southern California area. Therefore, his statement that the standard of care in New York and California would be the same in the treatment of a patient like respondent was based upon actual experience in each “medical locality.”

STEPHENS, Associate Justice.

KAUS, P. J., and HASTINGS, J., concur. Hearing denied; BIRD, C. J., dissenting.

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