HUTTON v. BROOKSIDE HOSPITAL (1963)

Appellants have asked us to consider a recent case, which was mentioned at oral argument but not in the briefs, namely, Smith v. Shankman, 208 A.C.A. 193, 25 Cal.Rptr. 195, on two points: (1) the fact the testimony was not read to the jury, and (2) certain instructions. We believe the case is quite distinguishable from the one before us on both points: (1) In the Shankman case the bailiff had taken it upon himself to reply to the jury foreman's request for transcript that the jury could not have it. In the case before us the reporter's transcript shows that two jurors asked the judge for some of the evidence and that the judge informed the jury that any particular part could be read, but they could not receive the testimony indiscriminately; and that a juror suggested that the jury go back to discuss what they needed. Thereupon the court, sending the jury back, repeated that if there was any particular thing needed in the testimony, it would be read. There are references by court and counsel, int he proceedings on motion for new trial, to a request by one or more jurors to have the testimony of one of the doctors read, but the reporter's transcript contains no more than is stated above. In any event, the invitation of the judge to have particular parts of testimony read was given to the jury. (2) In the Shankman case it was held error to have instructed the jury that physicians are not bound to use any particular method of treatment and if an approved method is chosen, it is not negligence, even if it turns out later to have been a wrong selection, where the physician did not treat the partient's true condition, tubal pregnancy, at all because he had failed to diagnose the condition. This, appellants argue, was the case here, too, because the actual cause of death, edema of the brain, was not diagnosed or treated, and the same instruction was given.

In the Shankman case an accumulation of errors and an array of defense oriented instructions, rather than an instruction standing alone, compelled reversal. Moreover, in the case before us, there was testimony by a physician called as an expert witness, Dr. Degnan, who, in answer to a hypothetical question relating to standard practice in the care and treatment of the patient by the family physician, replied that the standard practice had been followed. Plaintiffs themselves offered and received an instruction that it is negligence for a doctor to undertake treatment of a patient if a reasonably careful general practitioner would decline treatment in favor of a specialist. Actually, treatment was given for headaches and emotional problems by the second physician. Unlike the tubal pregnancy in the Shankman case, which had been present from the beginning of the doctor's services and undiagnosed, the edema of the brain from which Mr. Hutton died may have come later, according to testimony of the Medical Director of Contra Costa County. Three separate instructions (Nos. 20, 21, 22) were given, as requested by plaintiffs, on the duties of physicians in respect of diagnosis.

Petition for rehearing denied.

PER CURIAM.