WOLFSMITH v. MARSH (1958)

This is an appeal by plaintiff from a judgment in favor of defendants in an action for alleged malpractice in administering a hypodermic injection of sodium pentathol.

Plaintiff does not question the sufficiency of the evidence, but she does contend that the court erred in failing to give to the jury her proposed instruction upon the doctrine of res ipsa loquitur. Under such circumstances, ‘in determining whether or not the evidence supports the theory of the requested instruction an appellate court must view the evidence in the light most favorable to the party offering the instruction. Sills v. Los Angeles Transit Lines, 40 Cal.2d 630, 255 P.2d 795.’ Edgett v. Fairchild, 153 Cal.App.2d 734, 738, 314 P.2d 973, 975.

The record, when viewed in light of the rule set forth in the cited case, shows that plaintiff, a housewife, 47 years of age, while under the care of the defendant Doctor Barr, was admitted as a patient to the Lakeside Community Hospital in Lakeport to determine the cause of her obesity. Although she was nervous and in somewhat poor health, she suffered no particular pain or other discomfort. During the first 12 days of her hospitalization numerous laboratory tests and examinations were made. Finally Doctor Barr ordered that she be given basal metabolism tests. Because of her nervous condition and emotional makeup, the doctor ordered one such test to be given her under sodium pentathol and another without. In accordance with the custom at the hospital, any doctor who was free would act as anesthetist. In this case it was the defendant Doctor Marsh. According to plaintiff's testimony, Marsh first endeavored to inject the left arm, and being unsuccessful there, proceeded directly to inject the inner aspect of her right knee. This was denied by March who testified that he attempted to make the injection in both arms but was unable to find a vein, although he did obtain some blood from the left arm. Her further testimony was that at the point where the injection was made there was visible to her a small ‘raised bubble place’ which she characterized as a ‘varicose vein.’ She further testified that although she became a bit ‘fuzzy’ following the injection, she did not go to sleep; that the pain in her leg was immediate; that she was unable to complain vocally because of the rubber apparatus in her mouth which was attached to the equipment being used; and that upon being returned to her ward she felt ‘excruciating’ pain in her leg. Marsh testified that when he saw her approximately an hour after the injection she made no complaint of pain. Barr, however, testified that when he saw her at approximately the same time she was complaining of pain in her leg; that he examined it and found a reddened area around the site of the injection which was more firm than the surrounding tissue. She suffered constant pain in her leg during the next 63 days, 55 of which she spent in the Lakewood Community Hospital undergoing treatment in an attempt to effect a cure of her injury. Within two or three days of the injection, a thrombosis developed, and shortly thereafter, at the site of the injection, a condition characterized as a ‘slough ulcer’ developed. From 1953, when she first went to Doctor Barr, plaintiff had been given sodium pentathol under his direction on at least four occasions and had shown no allergy to it, nor had she suffered harm from its injection. One of such injections had been given by Doctor Marsh, and all were given in the plaintiff's arm. Following her dismissal from the hospital in October of 1954, she continued to have extreme pain in her leg. In January of 1956 she engaged Doctor Kenney of Santa Rosa. He testified that his examination of plaintiff's leg disclosed a scar into which ran two visible varicose veins. He placed her in a hospital for nine days, during which time he and other doctors in consultation with him made a further study of her condition. He concluded that she had phlebitis, an inflammation of the vein; anterior tibial strain due to the manner in which she walked to alleviate the pain; and that at the point of the original injection she was suffering from causalgia, an ‘irritating type of pain * * * due to some type of irritation within the blood vessel.’ Under the same anesthetic, which he injected into her arm, Doctor Kenney performed surgery to the leg and removed the vein, which was diagnosed as varicose, from the groin to the ankle and also removed the scar on her knee. At the same time an incision was made on her right flank and a piece of the sympathetic nerve removed.

Following submission of the case to the jury, and after some deliberation, it was requested the testimony and deposition of the defendant Marsh be re-read. The jury again retired and shortly thereafter returned with a verdict of nine to three in favor of the defendants.

The conditions to be met before the doctrine of res ipsa loquitur is applicable are too well established to warrant citation of authority. They are that the accident or injury must be of a kind which ordinarily does not occur in the absence of someone's negligence; that it must be caused by an agency or instrument in the control of the defendant; and that it must not have been due to any voluntary action or contribution on the part of the plaintiff. There can be no question that in the present case the last two conditions have been met. It is only the first that presents difficulty of disposition.

The testimony pertinent to the first condition may be summarized as follows: Doctor Barr testified under cross-examination that in the exercise of the standard of care in that community, a physician would not inject sodium pentathol into a varicose vein, the reason being that the walls of such veins do not have normal tensile strength; that they tear easily and do not have the resistence to irritants that normal veins have. Doctor Roberson, a local physician called by defendants, testified under cross-examination that only in an emergency would he inject a varicose vein, and that the standard of practice in the community forbade such an injection. Another defense witness, Doctor Wylie, did not share the apprehension expressed by the other experts concerning an injection directly into a varicose vein. The defendant Marsh testified that he had seen leakage and it had happened to him ‘* * * scores of times, but never a reaction like this patient had.’ Both Barr and Kenney testified that plaintiff's difficulties were the result of the injection. While one Doctor Woods testified that there was no doubt the ulcer was the result of some extravasation of the agent outside the vein, all of the expert testimony was to the effect that in such an injection one could expect some extravasation.

The question whether plaintiff's injuries resulting from the sodium pentathol injection are of the type which ordinarily do not occur in the absence of negligent administration of the drug necessitates two inquires: (1) Has the plaintiff produced sufficient evidence to permit the jury to draw an inference of negligence? (2) In the light of the evidence offered, does the balance of probabilities favor the conclusion of negligence? As to the latter inquiry, it has been stated: ‘That conclusion is not for the court to draw, or to refuse to draw so long as there is enough to permit the jury to draw it; and even though the court would not itself infer negligence, it must still leave the question to the jury where reasonable men may differ as to the balance of probabilities.’ Res Ipsa Loquitur in California, Prosser, 37 Cal.L.Rev. 183, 194–195.

However, before the latter inquiry can be answered, there must be a determination of the question whether ‘plaintiff has produced sufficient evidence to permit the jury to draw the inference.’ While some confusion has existed in the cases as to whether such determination devolves upon the court or the trier of fact, it appears to us that the decision in Seneris v. Haas, 45 Cal.2d 811, 827, 291 P.2d 915, 924, 53 A.L.R.2d 124, in which the court states, ‘the existence of the conditions upon which the operation of the doctrine is to be predicated is a question of fact and the right of the jury to find those facts must be carefully preserved,’ clearly indicates that the question whether the plaintiff has produced sufficient evidence to permit the jury to draw an inference of negligence is one which is within the exclusive province of the trier of fact.

Consequently, upon the authority of the Seneris decision, we are compelled to conclude that the trial court erred in refusing instructions on res ipsa loquitur.

Although unnecessary to this opinion, yet in view of the possibility of a new trial, we note that instructions were given upon the presumption of due care; that the mere happening of an accident does not support an inference of negligence; and upon unavoidable accident. Such instructions, under the facts and circumstances of this case, were likewise erroneous. See Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 323 P.2d 391; Maertins v. Kaiser Foundation Hospitals, 162 Cal.App.2d 661, 328 P.2d 494; Brenner v. Beardsley, 159 Cal.App.2d 304, 323 P.2d 841; Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500.

The judgment is reversed.

PEEK, Justice.

VAN DYKE, P. J., and WARNE, J. pro tem., concur.