HALL v. DESSER (1936)

This is an appeal by defendant from an order granting plaintiffs' motion for a new trial.

The action is one for damages for alleged unnecessary removal of certain organs of the plaintiff, Ann Hall. Hearing was had before the court sitting with a jury. The jury brought in its verdict for the defendant, whereupon the court granted plaintiffs' motion for new trial upon all the grounds stated therein, including the ground that the evidence was insufficient to sustain the verdict, and that it was against law. Appellant thereupon excepted to the ruling, and upon this appeal urges that the trial court erred in granting plaintiffs' motion for new trial, specifying particularly that there is no evidence proving or tending to prove that the defendant was guilty of negligence alleged in the complaint, and specifying that, on the contrary, “the evidence, by an overwhelming preponderance thereof, showed that the defendant in diagnosing and treating the plaintiff did so with the skill and care ordinarily possessed by practicing physicians and surgeons in the same locality.”

Appellant also urges that there is no evidence proving or tending to prove that the defendant was guilty of negligence in his treatment of the plaintiff subsequent to the operation, but that, on the contrary, “the evidence by a great preponderance thereof shows that at the time of the operation and at all times subsequent thereto the defendant exercised the skill and care which would have been exercised by a reputable physician practicing in the same or a similar locality.”

The motion for new trial was predicated upon notice of motion that plaintiffs would move the court for a new trial and to set aside and vacate the verdict of the jury upon grounds, which they alleged materially affected their substantial rights, to wit:

1. Insufficiency of the evidence to justify the verdict;

2. That the verdict is against the law;

3. Errors in law occurring at the trial and excepted to by the plaintiffs;

4. Error of the court in giving instructions to the jury requested by the defendant.

Unless the action of the trial court in granting the motion for new trial in the instant case was an abuse of its discretion, this court cannot interfere. Although the writer of this opinion––looking at the cold record before this court––might not have been inclined to grant the motion, the trial court had before it the witnesses, heard their testimony, saw the exhibits filed therein, and, when the motion was presented, granted it upon all the grounds stated. Our examination of the record does not disclose an abuse of discretion by the trial court in any of the particulars specified by appellant. If there is any substantial evidence which supports the order appealed from, it cannot be weighed by this court in determining whether or not the order of the trial court was properly made. This is exclusively within the province of the trial court. As already stated, the trial court had an opportunity to observe the witnesses as they were testifying; had an opportunity to observe the conduct of the jury, and the attention or inattention paid by the jury to its instructions, and therefore, was informed as to whether or not any of the grounds stated in the notice of motion was sufficient to require a retrial of the cause.

The order of the trial court granting motion for new trial is therefore affirmed.

I dissent. I find myself in disagreement with the conclusions reached by my associates in the majority opinion. The main question at the trial of this cause was whether or not the defendant physician, in removing the ovaries, tubes, and uterus from the body of plaintiff, Ann Hall, used the ordinary care and skill exercised by physicians and surgeons in the community. It is conceded by both appellant and respondent that as to what is or is not proper practice in examination and treatment, or the usual practice and treatment, is a question for experts, and can be established only by their testimony. Houghton v. Dickson, 29 Cal.App. 321, 324, 155 P. 128; Patterson v. Marcus, 203 Cal. 550, 552, 265 P. 222; Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642.

The evidence in this case, it is true, shows a conflict in the opinions of the experts as to the necessity, according to accepted standards in this community, for removal of the organs in question; but such conflicting opinions are based only on the preoperative clinical and the post–operative pathological diagnoses of the removed organs; and in my opinion, nowhere does the evidence disclose any conflict of opinion as to the skill of the defendant physician in operating as he did in the face of what he found when he opened up the body of Mrs. Hall at the time of the actual operation. The defendant testified that at the time of the actual operation, after he had opened up Mrs. Hall, he found conditions existing which in his opinion necessitated the removal of the uterus, tubes, and ovaries, and the defendant physician's opinion, formed at the time of the actual operation, was concurred in by another physician who assisted in the operation. I fail to find in the evidence any testimony challenging the correctness of the defendant physician's judgment, based on the conditions which he found to exist when he opened up the patient at the time of the operation; and I am of the opinion that unless there was some testimony in opposition to the testimony given by defendant and other physicians testifying in his behalf as to the correctness of his operative methods in the face of what he found at the time of the actual operation, the verdict of the jury in his favor should stand, because of the lack of any conflict in testimony attesting to his skill, when taking into consideration conditions actually apparent to him at the time he operated.

In fact, one of the plaintiff's expert witnesses testified:

“It is absolutely true that each individual case is to be judged by the conditions of that particular case rather than by any set rule and it is absolutely a matter of the judgment of the operator after he has made an examination after the patient has been opened up to proceed with reference to the conditions which are confronting him. That is the final decision. They frequently find unexpected conditions.

“Without knowing what the condition was in any particular operation I could not, nor could any surgeon, say that the doctor did not use ordinary skill and care. It would be impossible for me or any other doctor to express an opinion without those facts.”

Another of plaintiff's expert witnesses testified: “Assuming that an operation is performed for the removal of the uterus and that at the time of the operation complications, such as adhesions from a prior operation are found, it is entirely a matter dependent upon the judgment of the surgeon as to whether the tissues should be removed. In other words, in the last analysis it is entirely a matter of judgment.”

My understanding of the law is that in a malpractice case the physician should not be penalized for an error in judgment.

A search of the record fails to reveal to me any hypothetical question propounded to plaintiff's witnesses embodying all of the conditions existing and which presented themselves to the defendant physician at the time of the actual operation. In none of the hypothetical questions propounded to plaintiff's witnesses was anything said about the condition of the plaintiff at the time she was placed on the operating table, nor in answering hypothetical questions did they assume or have in mind any knowledge of actual conditions existing at the time of the operation, except such as as were disclosed by the pathological examination made under a microscope. The hypothetical questions propounded to plaintiff's witnesses did not contain, nor make any reference to, the conditions found to exist in the patient at the time of the operation. It is true, these questions assumed conditions disclosed by the preoperative clinical diagnosis and by the laboratorial report of the pathologist as to what the tissues revealed after removal; and it is further true that the removed tissues were introduced in evidence; but one of plaintiff's expert witnesses testified: “It is quite true that it is often the case in a major abdominal operation that the condition there apparent to the operator is such that justifies his reaching a diagnosis that differs entirely from the pathological diagnosis under a microscope following the operation.”

The defendant physician testified, and he was corroborated by his co–operator, that at the time of the operation, when he opened up the plaintiff's abdomen, he found the uterus, ovaries, and tubes so affected, that by reason thereof he concluded that these organs should be removed. Hypothetical questions including the conditions existing at the time of the operation were propounded to expert witnesses who testified for the defendant, and they gave as their opinions that under all the facts and circumstances, including the conditions existing at the time of the operation, the defendant physician exercised the skill and care which ordinarily would be exercised by surgeons in this locality. I am of the opinion that since none of the questions propounded to plaintiff's expert witnesses assumed the existence of conditions found at the time of the actual operation, there is no conflict, and surely no substantial conflict, in the claim of defendant physician and his expert witnesses that in the fact of what he found at the time he opened up Mrs. Hall's body he was justified, according to the ordinary standards of care and skill in this community, in removing the tissues in question.

Negligence on the part of a physician or surgeon is not presumed, but must be affirmatively proved. The same is true ordinarily with respect to the possession by the physician or surgeon of the requisite skill and learning. The only expert testimony given concerning the skill of the defendant physician which was based upon hypothetical questions which assumed the existence of conditions existing at the time of the actual operation was that by reason of such conditions, among others, the defendant physician was justified, in the light of existing medical standards in this locality, in removing the affected organs.

In this state of the evidence it seems to me that there was no substantial conflict on the question of the skill and care of the defendant physician. I have been unable to find anywhere in the record any evidence by any expert witness that, assuming the existence of conditions which the defendant physician and his co–operator testified they came face to face with on the operating table, defendant physician's conduct did not measure up to the medical standards of this locality.

I am not unmindful of the reluctance of reviewing courts to disturb the action of the trial court in granting a motion for a new trial, particularly on the ground of insufficiency of the evidence to justify the verdict; and while the trial court is not bound by a conflict in the evidence, still to justify the granting of a new trial after a jury's verdict, the conflict, if any, in the evidence must be a substantial one. A review of the evidence in this case convinces me that there is no substantial conflict in the evidence given that the defendant physician, in the face of conditions he found at the time of the operation, was justified as a careful and skillful doctor, in removing the organs from the patient's body. In the state of the record herein, I feel that from the expert testimony the jury could draw but a single inference and conclusion, which apparently they did in finding a verdict in favor of the defendant, and that is that the latter exercised the skill and care which would be exercised by the average physician or surgeon in this or a similar locality; because there was no denial thereof by any expert who answered a hypothetical question which embodied and assumed as facts the conditions which the defendant physician found to exist when he opened up the body of the patient.

Concerning defendant's second alleged act of negligence, which had to do with post–operative care of the patient by the defendant physician, a reading of the testimony with reference thereto will, to my mind, disclose no substantial conflict therein militating against the claim of defendant that he prescribed for plaintiff and recommended that she use medicine that is usually and ordinarily ordered by a skillful physician following an operation such as the one here in question.

I realize that where, as in this case, other grounds were urged, the action of the trial court in granting the motion for a new trial will be sustained unless there was an abuse of discretion. Other than the alleged insufficiency of the evidence to justify the verdict, there is only one other ground urged on this appeal in justification of the trial court's action, and that is that the court erred in giving a certain instruction. The order granting the motion for a new trial was as follows: “Plaintiffs' motion for a new trial, heretofore submitted, is now granted on all grounds, including the ground that the evidence is insufficient to sustain the verdict and that it is against the law.”

Respondents insist that the court committed reversible error in instructing the jury as follows: “* * * If the plaintiffs do not prove by a preponderance of all the evidence that the defendant negligently removed the ovaries, tubes and uterus of the said plaintiff, Ann Hall, or if they fail to prove by a preponderance of the evidence that said defendant negligently failed to give proper treatment to the plaintiff following the operation and that such negligence, if any, upon defendant's part proximately caused the injury complained of, then there can be no recovery herein against the defendant and your verdict must be against the plaintiffs and in favor of the defendant, Dr. Desser.”

Respondents earnestly contend that having alleged two distinct and separate acts of negligence, it would be sufficient, in order for plaintiffs to recover a judgment, that they prove by a preponderance of the evidence either of the acts alleged as a basis of plaintiffs' claim of negligence; and that by the above–mentioned instruction a greater burden was cast upon the plaintiffs than is required under the authorities of this state; it being respondents' claim that the instruction is conjunctive, whereas, under the law, plaintiffs were entitled to recover if their proof was sufficient to establish by a preponderance of the evidence either act of negligence alleged in their complaint. With this claim of respondents I do not agree, because, in my opinion, the instruction plainly advised the jury that the burden was upon the plaintiffs to prove either that the defendant negligently removed the organs, or, that after the removal of the organs he negligently failed to properly treat her; and it seems to me that the jury could not have understood the instruction to mean anything else. The instruction was a proper one, and no error was committed in giving it.

I am of the opinion that in the instant case there was no cause for granting a new trial on the ground that the evidence was insufficient to sustain the verdict, nor upon the other ground urged, that the court committed error in giving the above–mentioned instruction to the jury.

The order granting the motion for a new trial should be reversed.

YORK, Justice.

I concur: HOUSER, P. J.