LASHLEY v. KOERBER (1944)

This is an action for malpractice growing out of the treatment by defendant of the fractured terminal phalanx or end joint of plaintiff's right ring finger. The action was based on allegations to the effect that the defendant did not exercise proper care and skill in ascertaining the true condition of the fracture and in the treatment thereof, and that because of such failure the end joint of the finger became permanently crooked, which greatly interfered with plaintiff's ability to follow her usual employment as a waitress. The main ground upon which plaintiff bases her claim of negligence was that defendant failed to have X–rays taken of the finger. After plaintiff had testified concerning the manner in which the finger had been treated and as to the conversations she claimed took place between herself and the defendant on the several visits she made to his office, the defendant was called as a witness under the provisions of section 2055 of the Code of Civil Procedure; and the only other witness produced by plaintiff was her husband, who related one of the conversations had between his wife and the defendant. Plaintiff then rested her case, whereupon defendant moved for a nonsuit on the ground that plaintiff had produced no expert testimony to show that defendant's treatment of the finger was not in accordance with the usual practice or that the failure to have an X–ray taken in treating an injury of this kind constituted negligence. After hearing the arguments on the motion the court expressed the opinion that in the absence of expert testimony a case of negligence legally sufficient to go to the jury had not been made out, adding that if plaintiff desired to supply such testimony she would be permitted to do so, otherwise the court would have to grant the motion. Counsel for plaintiff replied that he had no expert testimony, whereupon the motion for nonsuit was granted. From the judgment entered thereon plaintiff appeals. We are of the opinion that no ground for reversal has been shown.

The finger was injured on August 30, 1941, while plaintiff was adjusting a folding bed. It was the Saturday before Labor Day, and plaintiff was unable to get in touch with the defendant until the following Tuesday morning, September 2nd. In the meantime, pursuant to advice given by the person answering the defendant's telephone, plaintiff soaked the finger in hot epsom salts. On Monday, the day before she saw the defendant, she went to the Highland Hospital and was told that she was doing all she could for the finger until she saw her doctor. On Tuesday morning she met the defendant at his office, and he diagnosed the injury as a fracture, but her hand was so swollen he could do nothing with it that day, and he told her to continue soaking it until Thursday, and that he believed it would then be possible to put it in splints. Plaintiff testified that during that visit she asked defendant if he did not want an X–ray taken and he replied that it would not be necessary; and that when she went back Thursday the finger was still so swollen and crooked that it could not be manipulated and that while it was in that condition defendant put it in splints. The defendant testified that before placing the finger in splints he put the finger in as full extension as possible; and that for splints he used several applicator sticks bound together with adhesive tape. The defendant changed the splints every few days, and plaintiff testified that on several of those visits to his office she asked him if he did not want to X–ray the finger and he said it was not necessary. Continuing, she testified that after some weeks the finger was still swollen and crooked and that on October 25th, of her own volition, she called on Dr. Stein in Albany and had the finger X–rayed; that the next month she went back to defendant and told him about the X–ray, but did not show it to him. She stated that at that time they discussed an operation but that defendant said it would not do any good to “rush the operation,” that later on he would operate if she had an X–ray taken and at that time he believed the operation was advisable. On January 2, 1942, she again called on the defendant. She was accompanied by her husband; and she testified that on that visit they discussed the matter of the operation, but that defendant then told them that before he could operate it would be necessary for him to have another X–ray; and that he gave her the address of the place to have it taken. She had the X–ray taken, and it was sent to defendant. Two days later plaintiff returned to defendant's office and she testified that at that time the defendant told her that according to the X–ray he could not operate on the finger, that he would rather have an orthopedic specialist see it, and he requested her to take the X–ray to a Dr. Barnard. Dr. Barnard did not operate, but put tape on the finger, and later she returned to see the defendant. According to defendant, when she returned to him she had taken off the tape put on by Dr. Barnard because she said it was uncomfortable; whereupon he told her if she was not going to follow the treatment ordered for her there was nothing further he could do for her.

The report accompanying the X–ray taken in January stated that it showed a fracture of the base of the terminal phalanx whose shaft is markedly displaced in the volar direction. In this connection defendant explained that a chip of the bone to which a tendon was attached, had been broken off, and that the tendon had pulled the chip out of position; and that arthritis in the joint had prevented the chip from uniting to the bone. He further testified that if an X–ray had been taken when plaintiff was first injured it would only have confirmed his diagnosis; that it was not necessary to take an X–ray because he knew from the clinical examination that she had fractured the terminal phalanx. Continuing he testified that if an X–ray had been taken at any time up to the first of October “The treatment would have been the same. X–ray is simply a form of diagnosis, it is not a treatment in itself. I knew there was a chip fracture at the base of that phalanx. I knew the finger had to be splinted in full extension, and simply having taken an X–ray would have perhaps added some slight confirmation to what I did but it would not have changed what I did in the slightest, nor would it have changed the eventual result.” He also testified that he suspected she had a tendency toward arthritis, and that the X–ray taken in January showed arthritis present, but that even if an X–ray had shown acute arthritis the treatment would not have been any different. He also testified that the treatment given her was such as is generally given by physicians and surgeons of good repute in that community, and that seven out of eight doctors with whom he had discussed the matter said it was not their practice to always demand an X–ray in treating fractures.

The general rule, as stated in Engelking v. Carlson, 13 Cal.2d 216, 88 P.2d 695, 697, is as follows: “The law has never held a physician or surgeon liable for every untoward result which may occur in medical practice. It requires only that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in the same locality and that he shall use ordinary care and diligence in applying that learning and skill to the treatment of his patient. Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654. Whether he has done so in a particular case is a question for experts and can be established only by their testimony. Perkins v. Trueblood, 180 Cal. 437, 181 P. 642; Patterson v. Marcus, 203 Cal. 550, 265 P. 222. And when the matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen, the expert evidence is conclusive. Wm. Simpson C. Co. v. Industrial Acc. Comm., 74 Cal.App. 239, 240 P. 58; Johnson v. Clarke, 98 Cal.App. 358, 276 P. 1052. Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved. On the contrary, in the absence of expert evidence, it will be presumed that a physician or surgeon exercised the ordinary care and skill required of him in treating his patient. Donahoo v. Lovas, 105 Cal.App. 705, 288 P. 698. It is true that in a restricted class of cases the courts have applied the doctrine of res ipsa loquitur in malpractice cases. But it has only been invoked where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.”

In the present case the only testimony given upon the subject shows that the injury was correctly diagnosed, and that plaintiff had no expert testimony to offer to show that the doctor had been negligent in his treatment of her finger, or that the failure to take an X–ray in a case of this kind constituted negligence. She contends, however, that “The use of X–ray to determine the location of fractures and the progress of their healing is within the realm of judicial knowledge” and that therefore it was not necessary to produce expert testimony to the effect that the defendant should have taken an X–ray of her finger. The authorities do not support this view. As said in Bickford v. Lawson, 27 Cal.App.2d 416, 81 P.2d 216, 219, where a fractured leg failed to heal properly due to a lack of callus formation, and the plaintiff sought to hold the doctor because he did not take X–rays nor use traction in reducing the fracture: “It may not be said, as a matter of law, that the failure to use an X–ray machine in the reducing of a fractured limb constitutes negligence under all circumstances. The necessity of employing an X–ray apparatus in reducing a fractured limb depends entirely upon the circumstances of the particular case. The question as to whether the reduction and treatment of a fractured limb without the use of an X–ray machine constitutes negligence, depends upon what an ordinarily skilled physician practicing in that vicinity, in the exercise of due care and professional judgment, would be required to do under like circumstances. The determination of those questions depends upon expert testimony. (Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642; Arais v. Kalensnikoff [10 Cal.2d 428], 74 P.2d 1043 [115 A.L.R. 163].)”

The cases cited by plaintiff in support of her contention are not in point. In each instance plaintiff had introduced expert testimony. Furthermore, the factual situation presented in each case is entirely different from that here involved. In Wires v. Litle, 27 Cal.App.2d 240, 80 P.2d 1010, 82 P.2d 388, the doctor attempted without success to remove a needle embedded in the plaintiff's finger, without having procured a clear X–ray to determine its position, and as a result of leaving the needle in the finger an infection developed which made it necessary later to amputate the finger. And in that case, it is to be noted that the Supreme Court in denying a petition for hearing expressly withheld approval of that portion of the opinion of the District Court of Appeal which comprised a “discussion concerning matters of common knowledge which, it is said, a jury may properly consider in an action for malpractice,” the discussion referred to being that the jury can consider without expert testimony matters which are within the common knowledge of laymen; that a needle left in a finger will cause an infection, and that a clear X–ray picture would be of assistance to the surgeon in removing it. In each of the other cases, a mistake was made in diagnosis, due either to not taking X–rays or to faulty X–rays. In Rankin v. Mills, 207 Cal. 438, 278 P. 1044, the doctor diagnosed without the aid of X–rays that the plaintiff had a dislocated hip and treated her accordingly, when she had a fracture of the hip bone. In Reynolds v. Struble, 128 Cal.App. 716, 18 P.2d 690, X–rays were taken, but the physician failed to discover the badly fractured shoulder shown by the X–ray, and gave no treatment therefor. In McBride v. Saylin, 6 Cal.2d 134, 56 P.2d 941, the physician failed to take an X–ray of an injured eye, and therefore did not suspect the presence of a foreign body in the eye, which resulted in the loss of the sight in that eye.

No such situation was presented here. The evidence shows without conflict that the doctor did know the nature of plaintiff's injury, and there is no evidence that his treatment would or should have been any different if X–rays had been taken. To the contrary, his own testimony showed that the treatment would not have been any different, and that an X–ray would only have confirmed his diagnosis. Nor is there any showing that his treatment in any way caused the deformation of the finger of which plaintiff now complains. The only medical testimony in the case was given by the defendant, and he testified that the present condition of the finger was caused by arthritis. Even assuming that defendant might have discovered the arthritis sooner if he had taken an X–ray sooner, the failure to do so would constitute a mere error in judgment, not actionable negligence. As said in Bickford v. Lawson, supra: “From a careful reading of the entire record we are convinced that the only omission of which the plaintiff may reasonably complain is a failure to use X–ray pictures after the reducing of the fracture, at an earlier date, with the possibility that the defendant might have thus discovered the lack of callus and that he would then have advised his patient to consult a bone specialist. But the defendant testified that he had no intimation of that lack of callus until the X–ray picture was taken December 20th [two months after the injury]. That omission, if it may be said to have contributed to the injury of the patient, was a mere error in judgment which does not constitute actionable malpractice.”

Plaintiff contends that the defendant's own testimony was sufficient to establish negligence on his part; that there is a material variance between the treatment outlined by him as being in accord with good practice, and that actually administered by him as described by plaintiff. However, the record does not show any substantial conflict of testimony in this regard. The defendant described in detail his method of applying splints to the injured finger, stating that “the finger was splinted in as full extension as possible, that is, with the finger sticking out straight”; “with two of these splints applied and tape wrapped around them tightly, the finger must be extended straight out, or as near so as it was humanly possible to get it.” He further testified, with reference to his first use of a splint, that “at the time this finger was splinted it was still slightly swollen and inflamed from the crushing force of her injury. The finger was brought up in as full extension as possible, and that is all that anybody can do to reduce that type of fracture.” (Italics added.) These statements are not inconsistent with plaintiff's assertion that “the finger was not straightened out when the splint was put on”; that “he did put splints on it and left it crooked the way it was at that time, with the splints on, he didn't straighten it out with the splints on.” She herself testified that on that occasion “the finger was so swollen still and so crooked that he could not manipulate the finger even yet,” from which statement it is manifest that the attainment of full extension was not then possible.

Finally plaintiff contends that she was entitled to have her case submitted to the jury because of the testimony of herself and her husband that in the course of a conversation between them and defendant some time subsequent to the termination of his services the latter admitted that he should have had an X–ray taken at the beginning of his treatment of her finger. According to her testimony, she said to him, “I have asked you over and over for X–rays,” and he replied, “I know you have, Mrs. Lashley, and it is not your fault”; and her husband testified: “He told her to go down to a certain address in Oakland and have an X–ray taken, stating that he should have done it in the beginning, and my wife said, ‘Yes, I know, Doctor, I insisted on that to start with.’ Dr. Koerber stated, ‘Yes,’ he said, ‘I know it is not your fault, Mrs. Lashley, it is all my own.’ ”

The general rule is, however, that an admission to be sufficient must be an admission of negligence or lack of the skill ordinarily required for the performance of the work undertaken. Markart v. Zeimer, 67 Cal.App. 363, 227 P. 683. Where the admission does not amount to an admission of negligence, it is held that the doctor is not responsible. Phillips v. Powell, 210 Cal. 39, 290 P. 441, 443. In that case a blade used in making an incision broke and became imbedded in the flesh, and testimony was introduced that the defendant had said, “It is my fault in using that kind of blade in that kind of an operation.” The court held: “We are of the opinion that these statements or otherwise did not constitute admissions that the defendants ‘did not possess and use that reasonable degree of learning and skill which was ordinarily possessed by the members of their profession in good standing practicing in their vicinity,’ which is the only standard by which the liability of the defendants may be determined. See Markart v. Zeimer, 67 Cal.App. 363, 371, 227 P. 683; Hesler v. California Hospital Co., 178 Cal. 764, 174 P. 654; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642.” And even where a doctor admits that he was in error in the treatment administered (Donahoo v. Lovas, 105 Cal.App. 705, 288 P. 698) or that he performed the wrong operation (Markart v. Zeimer, supra), it is held that such admissions are not sufficient to establish liability, where the admissions are not of negligence. As said in the latter case [67 Cal.App. 363, 227 P. 686]: “These admissions, therefore, are not admissions that the operation complained of was not performed with reasonable care, or that the defendants did not possess and use that reasonable degree of learning and skill which was ordinarily possessed by the members of their profession in good standing practicing in their vicinity. As a consequence, while they were competent as evidence of such facts as they admitted, they did not supply the absence of expert testimony in such particulars as expert testimony was otherwise required.” Here the alleged admission pertained only to the failure of the defendant to obtain X–rays of the broken finger; and at most, the uncontradicted evidence shows that X–rays would merely have enabled him to obtain more positive evidence of the nature of the injury sustained, in confirmation of facts with which he was already familiar by observation and palpation. They would not have affected his method of treatment in the least; nor is there any evidence to show that the result would have been any different.

Plaintiff in support of her contention cites Scott v. Sciaroni, 66 Cal.App. 577, 226 P. 827, and Walter v. England, 133 Cal.App. 676, 24 P.2d 930. In both of these cases the admissions were of negligence, not of mere mistake, and therefore those cases are not controlling here. In Scott v. Sciaroni, supra, the defendant was reported to have said that he left the radium on too long, that it was his fault that the plaintiff was in her present condition. In distinguishing that case it was said in Donahoo v. Lovas, supra [105 Cal.App. 705, 288 P. 701]: “In that case the physician admitted that the condition of the plaintiff was due to his negligence.” In Walter v. England [133 Cal.App. 676, 24 P.2d 934], the defendant stated that he had made a mistake in inserting a hypodermic needle, and it was held: “We are satisfied that, as used by the defendant, the word ‘mistake’ was synonymous with the word ‘negligence.’ ”

In the foregoing state of the evidence, and under the law as declared by the cases cited, we are of the opinion that the trial court properly held that plaintiff failed to establish a case of negligence legally sufficient to justify the submission thereof to the jury. The judgment is therefore affirmed.

KNIGHT, Justice.

PETERS, P. J., and WARD, J., concur. Rehearing denied; PETERS, P. J., not participating.