277 P. 134 | Cal. Ct. App. | 1929
This is an appeal by defendant, a physician and surgeon, from a judgment entered against him in an action for damages alleged to have been sustained by plaintiff as a result of carelessness and negligence of the defendant in and about the performance of a minor surgical operation. Plaintiff at the time of the operation was a child of the age of six years. Defendant, as a surgeon, had advised the necessity of the removal of the child's tonsils and adenoids, and pursuant to that advice the child was taken to a hospital for the operation. There is evidence that at the time appointed for the operation the surgeon was not present, but that shortly thereafter he came in, evidently in haste and at once began preparations for the work in hand. The child was removed to the operating room of the hospital, in which room were present the defendant, an anesthetist and two nurses. A general anesthetic was administered, *353
and upon the child relaxing a contrivance referred to as a gag was inserted in the mouth, the purpose of which was to hold the mouth open and control the tongue during the operation. About a minute or two after the gag was inserted the surgeon noticed blood on the lips of the child patient and upon examination he discovered a tooth lying loose in the mouth, completely free. It was disclosed upon subsequent examination that the bone in which the base of the tooth was set was fractured, which bone was described as being the bone in the superior maxillary. It was for the loss of the tooth that the trial court awarded plaintiff a money judgment. In passing it is noted that no complaint is made on the question of the amount of damages. The finding of the trial court is as follows: "Defendant did not use ordinary or reasonable care in his attention to the treatment of plaintiff in respect to the operation and the preparation of plaintiff therefor on said day, but then and there attended upon plaintiff and performed the said operation in a careless and negligent manner, in that defendant neglected and failed to apply or manipulate, or to cause to be applied or manipulated in a reasonable, careful or reasonably skillful manner, a certain gag placed by defendant in plaintiff's mouth as an instrument for facilitating said operation; and by reason of defendant's omission to use ordinary or reasonable care in the premises, one of plaintiff's upper central front teeth, commonly known as an incisor was forced out of its place in plaintiff's mouth." There is the further finding of the trial court as follows: The defendant's treatment of and attention given to plaintiff on the occasion and at the time of said operation was not standard or approved treatment or attention given by physicians and surgeons in the vicinity of San Francisco in such operations or in the preparation of the patient therefor; and the treatment and attention then and there given to plaintiff was not the best of defendant's ability or in the exercise of ordinarily or reasonably good judgment or without carelessness or negligence. If the evidence supports these findings the judgment must be affirmed. Supplementing the general statement of facts, there is ample evidence to warrant the following statement of facts. Defendant was a practicing physician and surgeon of the city of San Francisco, specializing in throat affection and oral surgery, and *354
the operation was performed in San Francisco. The child entered the operating room with the tooth in question perfectly sound and of normal placement and fixture. The tooth was a second tooth and firmly imbedded in the bone structure. A gag was inserted in the child's mouth, but prior to the insertions of the gag the patient had completely relaxed and was fully under the anesthetic. The defendant had been delayed in his arrival at the hospital and the operation was rushed along in a hurried manner. While some part of the introduction of the gag was done or performed by the anesthetist assisting, the defendant directed the proceeding and himself introduced and adjusted the gag. After the defendant had introduced the gag he assured himself that the adjustment was proper to protect the lips and that the upper teeth were free and as defendant states "absolutely all right." The defendant then busied himself fixing the light and other paraphernalia incident to the operation and when he looked down he observed the blood on the patient's lips. The defendant testifies: "It struck me in a flash that there must be something wrong with the teeth and then I looked down and saw the tooth lying there." There was evidence before the court that the tooth must have been either knocked out or extracted. There is not a word of testimony indicating that the anesthetist or anyone other than defendant, excepting jointly with the latter, ever touched the patient or the gag. Likewise there is not a word of direct testimony as to how the tooth was loosened and removed. Summing it up, we find a child patient completely under anesthetic in the hands of a skilled physician preparatory to an operation for the removal of tonsils. For no apparent reason and justified by no explanation the bone in the superior maxillary is fractured in front and a tooth is pulled or forced from the socket. The only attempt at explanation is the statement of a dental expert to the effect that in similar operations where a gag is used a surgeon would be lucky if at some time, something of that kind would not occur and in explanation of the statement he cites conditions, essentially different from the case at bar, under which such a casualty might occur. [1] Defendant contends that the burden of proof being on the plaintiff it was necessary for him to affirmatively show some positive act of actionable negligence. It is his contention that the doctrine of res ipsa loquitur can *355
have no application. The case of Vergeldt v. Hartzell, 1 Fed. (2d) 635, is illuminating on the subject here involved. Therein it is said, quoting from Evans v. Roberts, 172 Iowa, 653 [154 N.W. 923]: "It is appellant's contention that there is no evidence in the record to support a finding that he was negligent. With this we are unable to agree. Assuming for the purposes of this case, the soundness of the argument that, in performing an operation, a surgeon is not held to guarantee results, and that, if he possesses the measure of skill which the law requires, a mere failure of judgment in his choice of methods and means, is not actionable negligence, such concession is insufficient for the disposition of the issue of negligence in this case as a matter of law. This is not the ordinary case where a practitioner is sought to be charged with liability for alleged improper treatment of some bodily ailment or infirmity. He was employed to remove the adenoids from the plaintiff's throat and there is neither claim nor proof that he did not successfully remove them. His negligence, if any, was in failing to take due care to avoid injury to the undiseased parts in the vicinity of which the operation was performed; and while it may be true that, had the operation upon the adenoids been unsuccessful and disappointing, no inference of negligence or want of skill would arise therefrom, it does not follow that this rule applies with the same force to an injury done by him to sound and undiseased parts of plaintiff's person which he was not called upon to treat and did not pretend to treat. If a surgeon, undertaking to remove a tumor from a person's scalp, lets his knife slip and cuts off his patient's ear, or if he undertakes to stitch a wound on the patient's cheek and by an awkward move thrusts his needle into the patient's eye, or if a dentist in his haste, leaves a decayed tooth in the jaw of his patient and removes one which is sound and serviceable, the charitable presumptions which ordinarily protect the practitioner against legal blame where his treatment is unsuccessful are not here available. It is a matter of common knowledge and observation that such things do not ordinarily attend the service of one possessing ordinary skill and experience in the delicate work of surgery. It does not need scientific knowledge of training to understand that, ordinarily speaking, such results are unnecessary and are not to be anticipated if reasonable care be exercised by the *356
operator." In Wharton v. Warner,
Judgment affirmed.
Tyler, P.J., and Cashin, J., concurred. *358
A petition for a rehearing of this cause was denied by the District Court of Appeal on May 18, 1929, and a petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 17, 1929.
All the Justices present concurred.