*1 in favor the judgment, adequately By support it. the rules of law which generally heretofore respected by have been appellate judgment courts the should be affirmed. opinion judgment were modified to read as above 13,1949. December A. No. 20994. In Bank.
[L. Dec. 1949.] H. MOORE, T. Appellant, v. ELMER Respondent. BELT, *2 Appellant. Walter Briggs
E. Howarth and R. Trinkaus for Mullin, & Sheppard, Richter Balthis as Amici Curiae on Appellant. behalf of Phillip Wynn, Dunn Gibson,
Fulcher & & Crutcher and C. Sterry Respondent. Peart, Hassard,
Hartley Baraty, George F. L. Howard Gus Bonnington, Louis Smith, Alan L. Reed & Kirtland and J. A. Regan Respondent. Amici Curiae on behalf of judgment on a Appeal byplaintiff from a SHENK, J. damages for an action to recover verdict for the defendant in statement. malpractice. appeal is on a settled alleged The not contended it is Due to an admitted conflict support the verdict. the evidence is insufficient to plaintiff’s principal assignments that the court committed are the issue of prejudicial error in the instructions on rulings on the admission of evidence. county of physician practicing in the The defendant is a urology 1923. Angeles specialized Los and has since plaintiff, attorney, years resides in An- old and Los ap- geles. formerly he He lived in Texas. On June peared appointment. pursuant at the to aU defendant’s office history given following: His medical at time showed In experienced childhood diseases. he the usual children’s youth which was he had trouble with left testicle upon pressure. small up and would draw the abdomen into causing This him throughout years condition continued pain and Beginning discomfort. 1920 a sinus infection about developed gave Drainages in 1921 him much distress. *3 quieted difficulty the area recurred somewhat until 1930. The and in cutting operation 1932 he had a which did not bone entirely slight rheu- remove the trouble. At times he had a pain matic in right centering pain wrist. Periodic region lower pre- abdominal commenced about 1936. It was by slight ceded discharge which dis- nonvenereal urethral appeared after X-ray fluoroscopic treatment. and examina- tions were again Angeles made El Paso and 1939 Los attempt in an origin pain, locate the of the abdominal in 1942 appendix difficulty re- was removed. But the mained and study. called purpose for further For this plaintiff by was personal physician sent to the defendant.
At subjected the defendant’s plaintiff officethe to exami- nation and prostatic secretion, urine, tests of the and for syphilis. He was prepared then for examination cystoscopic by which was conducted the defendant with the use instru- X-ray ments and fluids through pictures inserted ureters. were taken. departed Before he plaintiff was informed the defendant negative except the tests results showed for per pus five cent prostatic cells secretion normal, stated to be and that his could not be trouble traced difficulty infection genito-urinary system. following day eve- worked at his officethe plaintiff
ning home. Chills chill and went until o’clockwhen he had a night and the alternately throughout and fever continued plaintiff day. city next and the The defendant was out of the laboratory Hyde called to his samples Dr. who took of urine given reported which were not for tests and later the results office drugs defendant’s evidence. Sulfa were sent from the de- following day for of the administration. The Dr. Guth called, and advised con- fendant’s staff made examinations drugs. sweating continued tinuing profuse Chills and plaintiff he was at- hospital was taken where to a Dr. Ebert tended Dr. Ebert office. from the defendant’s plaintiff being an acute informed the treated he urinary passages infection of the but it was not understood how the infection arose. The chills and fever abated June 14th and on 16th to his home plaintiff June returned 27th, reported where he days. was confined for 10 On he June urinary at the prostatie defendant’s officeand tests after Subsequent was told he had a 25 tests per cent infection. showed decreasing gradually per the infection He cent. was informed that cause the defendant did not lmow the began infection. with his then treatment personal physician. allergy apparent Because an to sulfa drugs, penicillin appar- was substituted in the treatment and ently proved more effective. witness, plaintiff produced one
On the trial Angeles, opin- who that in his surgeon in Los testified autopsy cystoscopic examination and the between the the 24 hours ion period an incubation for bacteria symptoms constituted fever instruments delicate channels unsterile introduced into the instruments, from the or, assuming proper sterilization edges thoroughly channels whose were not opening of the showed a well-seated infection in the cleansed; that the results prior urinary present which was not to instrumentation. tract - concerning defendant testified produced Witnesses and sterilization methods and stated of treatment standards *4 by any opinion caused in their the infection was not that procedure from preparatory nor introduced outside unsterile cystoscopic but, of the examination in the conduct sources history, prior medical was attributable to low- based on the genito-urinary tracts, probably infection the grade chronic drugs, influenza prostatic origin, or to the use of sulfa or to respiratory inflammation sinus infection. charged jury the request the court At the defendant’s negligence pre- not be could the defendant’s that substance testimony experts; also of based but must be on sumed governed be but must up not set a standard jury that could testimony by expert of witnesses. solely (based on B.A.J.I. requested instruction plaintiff The of the fore- embodying substance Parts) 214-B Pocket testimony expert was not adding that going instructions and knowledge that on common required to a fact based establish in- measures precautionary danger is where certain involved followed, whereupon whether cluding are sterilization may by light be decided condition was caused requested instruction was knowledge. The of such common request charged plaintiff’s refused but at the injury plaintiff sustained as the if it be found that the that infection, a new the defendant of result the introduction injury proximate an inference arose that the cause negligence malpractice on the of the defendant some by clear, positive upon him to rebut which it was incumbent injury and uncontradieted evidence that occurred without duty part. failure on his given contends that the instructions were conflicting theory jury; and confused the the correct knowledge the case that as a common matter of result usually happen proper; does not when sterilization has been required prove negligence; was not theory with his therefore that the instructions conflict erroneous, misleading prejudicial. were defendant, supported the other hand the On state and county curiae, questions pro- medical associations as amici any application priety doctrine based common knowledge in the absence the fact first established without that the infection was introduced conflict act of the presents defendant. It is therefore contended that the record solely experts issues of within the fact plaintiff’s given incorporated instruction which a statement loquitur favorable him ipsa of the res doctrine was more warranted. than record given general a statement of the instructions embodied practice diagnosis proper and usual and treat
rule only experts is a and can established ment (Perkins testimony. Trueblood, 180 Cal. their exception declared in Barham v. Wid- 642]), *5 530
ing,
In Widing Barham v. the defendant extracted a tooth from plaintiff’s jaw. developed An infection which from the evidence could be traced hypodermic to the use of an unsterile needle or jaw. solution inserted jury to anaesthetize the was instructed that if the defendant used unsterile needle or solution proximately caused the infection plain- tiff should recover. was claimed that the omission of the words “carelessly negligently” prejudicial error. This court judgment affirmed the entered on verdict and determined that the mere fact of infection following and improper traceable to sterilization was evidence negligence; carelessness the court would take judicial knowledge notice that in common such result does proper not follow sterilization and that observance of the ordinary preclude standards would the use of an unsterile solution; needle or therefore the omitted words were not nec- essary to a proper charge. variously
Declarations to similar effect and
stated have been
applied many
(Dierman
situations.
v. Providence Hospital,
12];
In the appli cases cited where the doctrine was held injury cable evidence that the defendant did not cause the knowledge remote it followed a matter of common injury hap from the nature of the the result would not negligence. present without pen carelessness or case injury the inference that caused the defend not existing ant, plaintiff’s but from source some theretofore system, was not remote but could be drawn from substantial plaintiff’s evidence of the record. On required to but could reason history medical was' any negligent ably infection, and not prior conclude that defendant, proximate was the cause act on at is. inference on common trouble. The based it could be ipsa loquitur the root of the res doctrine. Before *6 to jury under facts of case the would have drawn the this reject hypothesis plaintiff’s prior the condition the Torts, p. 295; Prosser, arti proximate (Prosser, cause. the 183, Ipsa California, Cal.L.Rev. Loquitur Bes 37 cle 489.) p. at 201; Spangard, supra, v. Cal.2d Ybarra included from but plaintiff’s the refused instruction Omitted loquitur doctrine, given covering ipsa in his instruction the res necessary of the act is the element causal connection between plaintiff’s injury, An instruction on the the based re theory exception would only applied should the be thereby solve his favor the issue of causation and take jury’s question from evidence on the consideration. The conflicting correctly case issue was and the submitted the court jury causation, to with the inclusion of the of the element thereby calling general for statements of both rule and the exception. (See Widing, supra, the at Barham v. Cal. p. 216; Parker, Cal.App. v. Nelson Painless 1078].) P. no real as to Since there was contradiction applicable theories, may the not be said that the to prejudice plaintiff misled of on a record of con flicting jury’s containing support substantial verdict, liberty court is to and this therefore not at disturb jury’s the result of the deliberations. urged unduly plaintiff’s
It is that the trial limited the court expert appeared examination of his witness. the tes- timony practiced autopsy witness that he had as an this surgeon years, urology, for 29 did not did practice that he genito-urinary diagnostic not conduct examinations in practice fields, and did not know methods of or treatment learning knowledge therein, he had but that the anat- genito-urinary omy system. and of infections relation to testimony given this and after consultation and When proof chambers, hypothetical court offers of excluded knowledge based questions addressed to this witness urology, existing practice permit- standards but question hypothetical opinion elicit as ted one the witness’ to the cause of the infection. expert qualified
A medical is not as unless a witness only he required professional is shown not knowl have edge, learning express opinion, and skill but also required familiar with simi physicians the standards under (Sinz Owens, supra, p. lar circumstances. 33 Cal.2d v. at seq.) party et A is entitled to examine an wit qualifications ness as to his full experience so that weight apparent. accorded his will become (Salmon Rathjens, 152 733].) Cal. But in view of the witness’ practice urology admitted lack of qualifications extent of the examination as to his in rela subject tion to the matter opinion of Ms was within sound (Sinz discretion of Owens, the trial court. 33 Cal. supra, 2d p. 753.) gave at chronological witness account experience his education and and demonstrated his anatomical system. as genito-urinary it related to the It does appear qualifi that further examination either to his opinion cations or Ms of the cause of infection have would any greater weight testimony. accorded to his unduly was not restricted on direct or rebuttal examination sustaining rulings objections ques hypothetical to further repetitions tions which were answered *7 questions subjects witness and to not within the limits qualifications of the witness’ as determined the court. may complain prejudice by Likewise the not of permit explain reason of the refusal to court’s the witness to “yes” his opinion answer to the whether on the his hypothetical competent manipulation case assumed instru of ments the examination conducted Inas the defendant. much properly as the court ruled the witness was not give qualified opinion existing to concerning his standards practice urology, explanation of an was answer necessary. prejudicial No error or abuse discretion is shown. judgment is affirmed.
Edmonds, J., Schauer, J., Spence, J., and concurred. CARTER, I agree J. I dissent. with cannot either the reasoning majority result opirnon. of the This case ably correctly opinion disposed was and of Justice Vallée in the with ad Appeal, District Court some (90 deletions, adopt opinion ditions and I as follows 248): A.C.A. (1) court assignments are:
“Appellant’s of error requested by respondent and in giving erred instructions (2) the refusing give requested appellant, to instructions questions sustaining objections to asked erred in court establishing purpose of by appellant for the called objections sustaining hypothetical to qualifications, his explain him questions permitting expert, in not asked the questions sustaining objections answer, a ‘Yes’ developed by the facts him on rebuttal which assumed asked defense. assignment error germane the first “The Dr. office Appellant went to Belt’s on June
will related. be time a cystoscopic At the he was for a examination. history, a he years age. giving the doctor man 41 After disrobed, palpated doctor abdomen partially was then, He was taken to another his testicles. and examined preparatory to the and tests room for further examinations with and clothed cystoscopic He was disrobed examination. temperature A were taken. surgical gown. pulse His a lungs and were teeth hemoglobin. His test was made of found taken, tested and Samples of his urine were examined. syphilis was A test pressure was taken. negative. His blood massage performed negative. prostatie A made. sample secretion. prostatie and a taken wait, appellant “After a was taken a cystoscopic exami- room assisted a table. nation onto The table was so con- position from prone structed he turned a could to an being standing position erect without removed from the table. appellant While on the table could not see and did not know being except what he layman, what done could feel. A years technician, age, Belt, called a the absence of Dr. appellant layman prepared picked for instrumentation. tray tray up a from nurse in next room. The a contained tube, syringes, installator, swab, peroneal water two appellant’s organ, towel and a sheet. He washed male injected stopper and inserted a an anesthetic therein ]4-ineh cystoscope Dr. place. Belt took to hold the anesthetic *8 tray into the examination a in another room and went from length twice cystoscope A is an instrument about room. pen, smaller than a fountain a fountain with a diameter up the end plated, nickel with turned pen, copper made of and non-oily lubricated with a lubri- a hollow It was and shaft. stopper. Dr. Belt introduced layman The removed the cant. the cystoscope opening, into the through inserted it organ into the bladder and observed the interior of the bladder. openings ureter into bladder and the interior appeared every the bladder respect. normal in Catheters were through cystoscope inserted into the bladder through pelves both pushed through renal and the ureter to the kidneys. The catheters had been cystoscope threaded into the by someone not A specimen named evidence. of urine through was collected into catheters test tubes and when pus it was examined was found that there no bacteria or present. dye injected A was into each uretral solution catheter X-rays position appellant prone and was in a taken while and standing position also while he was in and while instruments body. were and the remained his catheters withdrawn to trail remaining solution in the ureter was allowed to the taken prostate X-ray pictures bladder as far as the level and X-ray pictures negative. All of the area. were appellant’s “Dr. Belt that: showed the examination testified urinary was in kidneys prostate tract down normalcy; condition; picture normal it awas textbook after appellant genito-urinary sys- the examination he told that his negative. develops tem an He fever which testified that unusual time is not the normal cystoscopic after a examination any if reac- appellant reaction Belt therefrom. Dr. told that tion He also occurred at all would within two hours. occur entirely negative, that the told him that the examination was count, respiration were hemoglobin, pulse blood heart and Dr. secre- prostate, prostatic normal. Belt him told that his normal in normal, prostate tion and urine were his size, normal, that shape consistency, and his bladder prostate patho- both negative bladder were logical normal, were condition, kidneys and ureters that he picture was a perfection. textbook
“About day—appellant hours later—4 o’clock the next began feeling began having odd. He chills about o’clock night. He all night had chills and fever all the next day, June 9. On June he received some medicines from Dr. Belt’s drugs. office which he understood were sulfa He drugs started to take the sulfa the afternoon of June 10. He continued have chills and fever June 10 and 11. On June Dr. Gutli, assistant Belt, appel- of Dr. went home, him lant’s him taking examined told to continue the medicine. Appellant continued to have alternate chills temperature fever. His progressively higher, became run- *9 11. He was then degrees p. m. on about June ning assistant. hospital the advice of Dr. Belt’s taken to a drugs discontin- were The sulfa chills and fever continued. persisted and chills m. the fever p. June 13 at 2:30 but ued on hospital the after- the until 14. remained in until June He 16. noon of June Ebert, Dr. was hospital appellant in attended
“While the hospi- the Appellant, Dr. while in another assistant of Belt. causing his severe chills tal, Dr. Ebert what was asked Everyone high say. Dr. replied,‘That’s Ebert hard fever. you urinary passages, have an the knows acute infection why you got I But but understand how there. that can’t These medi- being given drugs are and pyridium. the sulfa although Ebert, kind.” Dr. cines are for of that infections in as a witness. employ Belt, still Dr. was not called the was to leave his appellant “On when able home June given was time, went Dr. office. He for first he Belt’s urine prostatic massage by samples Dr. of his were Guth and asked Dr. completed, taken for were he tests. After tests showed results. Dr. him tests Guth the Guth told per Appellant had was that he still a 25 cent infection. July 1944. On given prostatic massages by Dr. until Guth pres- Dr. infection each occasion told him that had an Guth he urinary gradually in was de- ent tract but the amount creasing showed test so that at the time his last visit the only away Angeles Los from per cent. Dr. Belt was June 9 Dr. Guth to June 23. and while Sometime thereafter appeared giving appellant prostatic massage, was Dr. Belt appellant I just ‘Dr. me that said, Belt, Dr. Guth told any I infection present. still have infection didn’t have 10% I Iwhy when I should came here June and don’t see ’ per have now. was within replied Dr. Belt that 10 cent normal limits. what had caused Appellant then asked Dr. Belt urinary chills and the infection tract severe and the high truth, Dr. know.’ replied, fever. Belt tell I don’t ‘To deny appellant’s having Dr. Belt did not made answer this query. trial. Dr. Guth was in Wisconsin at the time of deposition His was not taken. appellant
“The called testified that the hours between time appellant of the examination and the time began probably to have chills and fever an incubation period urinary for bacteria introduced into tract preparation for, making in the examination, or of the evidently introduction due to some defective condition carrying
of the opening instruments in from the (the organ), edges meatus canal the male whose were not thoroughly cleansed, given and that the treatment hospital urinary infection tract. we record, “As read the there is no either
stopper cystoscope or the exami- catheters used appellant's body. nation were sterilized before insertion into *10 any lay Neither the technician nor Dr. Belt sterilized one of any them or saw one of them sterilized. No one testified that he sterilized hand, one of them. On the is no other there they direct evidence that were not sterilized. “Appellant’s says, contention is He stated his brief.
‘ (a)
genito-urinary
healthy
His
system
and normal
was
a
7, 1944,
reported
respondent
condition on June
when he
urological examination, every
system being
a
that
of
every
description.
of
of
free
infection
kind and
This was es-
by
testimony
respondent
tablished
the records
which
and
immediately prior
cystoscopie
showed that
to the
examination
tests,
appellant
given
and
the same date
in-
various
cluding
urine, prostatic secretion,
etc.,
his
tests of
blood
all of
negative
which were
and
present and,
showed no infection
further,
urological
that
appellant’s
examination disclosed
genito-urinary system
healthy
to be
and normal condi-
(b)
cystoscopie
tion.
hours after the
About
examination
by
completed
respondent, symptoms appeared
had been
show-
ing
developed
infection had
which the evidence estab-
appellant’s genito-urinary
lished was within the confines of
system. Appellant
appearance
testified
symp-
to the
of such
approximately 24
toms
after
hours
the examination.
period
shown that
hours was the normal incubation
for a
type.
infection
this
new
And the fact
such infection
immediately
did
exist
examination,
which
before the
did
approximately 24
exist
after
examination,
hours
was es-
by
respondent
tablished
the uncontradicted admissions of
by
assistants,
the nature of
given,
the treatment
and also
Webb,
by expert
through
(c)
offered
in-
Dr.
This
by
had been caused
fection
infectious matter which had been
urinary
appellant’s
urological
during
carried into
tract
(a)
(b) give
Proof of
examination.
rise to this inference
directly
is further and
which
established
testi-
Webb,
(d)
mony
regarding
of Dr.
There was no issue raised
learning
professional
respondent,
(e)
or
skill
of the
respondent
involved
whether
or
employees
question
failing
effect and maintain
negligent
were
assistants
negligence
This
examination.
for such
proper sterilization
(b), and
proof
(a),
of fact
was established as
Widing,
210 Cal.
principles
of Barham v.
(c), under
173],
the inference of such
P.
and also
ipsa loquitur
of res
as announced
arising under the doctrine
P.2d
Spangard,
in Ybarra v.
Cal.2d
A.L.R 1258].
‘‘
puts
squarely
which has been related
case
The evidence
Widing,
539
“
regarding
pro-
question is raised
‘In
ease no
this
It
that he was rea-
the dentist.
is conceded
fessional skill of
But
as-
profession.
in his
it is
sonably learned and skilful
negligent
failing
hypo-
to sterilize the
was
serted that he
gum into which he inserted the instru-
needle and the
dermic
regarding
fact
no conflict
that infection
ment. There is
injuries
conclusive
jaw caused the
to Barham.
of the
days
developed
opera-
within a few
after the
this infection
that
just
point
jaw
ramus of the
at
where the needle
tion on the
inserted, and not in the socket from which the tooth had
. .
been removed .
“ ‘
necessary
not
[p.
physi
It was
dentist or
216.]
negligent
cian to state that the conduct of the defendant was
with the usual established practice
pro
conflict
of the
vicinity
fession in that
to administer a local anesthetic for
extracting
sterilizing
needle,
purpose of
a tooth without
judi
or the flesh into
it is inserted. The court will take
necessity
ordinary
cial
use
pro
of the
care to
under
cure sterilization
such circumstances. This case was
theory
everyone
upon
recognized
tried
that
concerned
duty.
are, therefore,
opinion
this
We
of the
support
judgment
regard.’
will
(See, also,
this
Mc
Saylin,
941];
v.
6
Bride
Cal.2d 134
P.2d
Inderbitzen v.
[56
Hospital,
Cal.App.
124
;
Lane
P.2d
13 P.2d
[12
905]
Burgeson,
;
Thomsen v.
“There is no difference between the facts of Barham case and the facts of the case at bar. Barham case a gum needle was inserted injected. into the and a solution Five days or six appeared. later an infection point The of infec- place tion was the where the needle was inserted. It was held that, expert without testimony, jury negligence. could infer Here, instruments were inserted organ into the male and the urinary injected. tract and a solution Twenty-four hours later an appeared. point was the infection of infection urinary jury, tract. The expert testimony, without infer could negligence. The evidence in present case makes for stronger negligence inference of than that in the Barham case. In that case there was no gum evidence that the was not in- fected at the time the needle was inserted and the solution in- jected. Here the exception opinions evidence—with the two experts which contrary testimony were to the defense Dr. Belt appellant’s system genito-urinary nega- of tive—is urinary without healthy that the tract was in a conflict and normal condition and at the time the free from infection instruments were injected. inserted and the solution In the Barham case the appear infection did not days until five or six operation. after the appeared Here the infection about hours after the examination.
“With jury, the evidence stated before the the court at request respondent gave following instructions: (1) ‘Negligence upon part physician of a is never to he presumed, expert the absence testimony con- to the trary, presumed physician it is to be possesses that a and has degree requisite exercised the examining of skill and care patient.’ (2) ‘In determining of whether the guilty alleged defendant was complaint as you up cannot and must not your set a standard of own but governed regard solely must be ’ appeared witnesses who have and testified in this case. Under these permitted instructions the was not to deter- mine for properly themselves that failure to sterilize the in- struments appellant’s body inserted into the or failure to properly parts body sterilize the through which inserted, both, negligence. instruments were Failure on the physician of a respects neg- either of these ligence as a knowledge. matter of common law, There is no applied case, requires the facts of this that the jury in determining questions governed solely by these tsetimony of expert practical witnesses. The effect of these return a verdict jury to to direct the instructions respondent . . . re- following instructions give refused to “The court determining defend- whether (1) ‘In
quested appellant: imposed the duties fulfilled learning, and conduct ant’s skill you are not you, they been stated law, as have on him your own. arbitrarily a standard up to set permitted learning, skill you, up standard, I remind was set the same by others of ordinarily practiced possessed and care *14 locality the same at standing, in same profession good ex- except hereinafter therefore, as follows, that time. standard, that learn only way you may properly plained the by physicians and trial through presented evidence in this is surgeons called as witnesses. “ just stated: exception to the rule ‘However, there is this danger is knowledge it is a that when matter of common maintain cer- in certain in a failure to involved conditions or as, measures, precautionary tain conditions or to take certain commonly known duties instance, perform for failure to testimony required is not sterilization, expert or cleanliness as a fact, may judicially to noticed establish such a but it part knowledge by us*with our of that fund shared of common generally. fellow citizens ‘ ‘‘ may as follows: When be otherwise stated exception This a circumstance that knowledge an event or that common is the kind that developed patient in a is of or happened to has negligence occur in the absence ordinarily not does him, whether or attending part physician may be decided was caused not the condition and as circumstances shown general from the reason.’ . . . experience and common light “ of the evidence preponderance from the (2) you ‘If believe agents employees, Belt, his or Elmer or defendant, instruments unsterilized employed either used negligently plaintiff in the in examination of or solutions proximate that as the and jecting him of such solutions into thereby introduced into infection was thereof result defendant, recover from injuring him, plaintiff is entitled your judg sum as damages herein in such Belt, Elmer justly compensate evidence, will considering all of the ment, him have any damage you believe sustained him for Taterson, Cal.App. 50 v. thereof.’ Pierce proximate result approval with 544], quoted court P.2d 2d 489 [123 542 Weeks, Sim v. 7 28 Cal.App.2d 350], P.2d as follows [45 : “It physician is well settled surgeon that a cannot be guarantee
held to professional results of his services. ‘However, it equally is well undertaking settled treatment patient of a practitioner impliedly contracts represents only possesses degree that he the reasonable learning of skill and possessed by profession others of his locality, but ordinary that he will use reasonable care application and skill in knowledge accomplish such purpose which employed; injury he is if is caused want of such skill or care on his he is liable consequences for the (Houghton Dickson, which follow. v. Cal.App. 29 321 128]; P. Nelson 104 Parker, v. Painless [155 Cal.App. 770 ; Trueblood, P. 180 Perkins v. Cal. [286 1078] 642]; 437 P. Hospital Co., Hesler v. 178 Cal. [181 California 764 ; Ley P. 88 Bishopp, Cal.App. P. [174 654] ’ 369]; Marcus, 222].)” Patterson v. Cal. (Italics added.) Appellant respondent does not contend that requisite did not have the and skill. His contention is respondent negligent proper no sterilization. conflicts, Where the evidence to have the party each is entitled given theory law applicable to the (Kelley City the case and of his witnesses. Francisco, ; etc. Cal.App.2d 872, San P.2d 719] Buckley Co., Ltd., Cal.App.2d 209, v. Shell Chemical *15 453]; CaLApp. P.2d Co., Ltd., Dowdall 18 v. Gilmore Oil [89 1, 2d 5 1051]; Renton, Monnier, P.2d v. Holmes & Co. [62 Cal. 820].) injunction met when This is not theory the instructions remove consideration of the that jury. (Morrow P.2d Mendleson, Cal.App.2d 15, 1302].) duty ex give It is the of court to instructions the pounding every theory the law on reasonable of the case find ing support (Megee Fasulis, Cal.App the evidence. .2d 281].) P.2d evidence, experts,
“The was suffi- without the of jury finding cient to infection was warrant the that the by therefore, negligence respondent. was, caused It the prejudicial by give requested error to the two instructions respondent requested give and to refuse to two instructions ’’ by appellant. quoted given unequivo- above instructions were as cally loquitur ipsa removed the doctrine of from the case. res No interpretation possible. other thereof is The instruction majority given subject upon which the on that and not accurate and curing questioned instruction, rely as given positive impression to the not have removed could phrased major- by instruction. As jury the erroneous plain- . . that if found that the ity opinion, it read: “. it be by injury the result of the introduction tiff sustained infection, an inference arose that defendant of a new negligence injury mal- proximate cause of the was some or part it practice on the the defendant which was incumbent by clear, positive him upon to rebut and uncontradicted evi- injury any duty failure dence occurred without on part.” given, “If, his The instruction reads: fact, only event, you find that H. plaintiff, should T. Moore, injury sustained as the result of the introduction defend- any agents ant, employees, or of-his or of a new Elmer Belt, you infection arc instructed as An follows: inference arises proximate injury cause of such was some malpractice or on part defendant, Belt, Elmer agents or his employees. or That inference is a form of evi- dence, if none tending it, there is other to overthrow if preponderates the inference contrary over evidence, it war- Therefore, rants verdict in plaintiff. you favor of should any weigh tending inference, to overcome that bear- ing in mind upon that it is incumbent the defendant to rebut showing inference injury that the occurred without being proximately by any caused duty failure of part, or on agents employees.
“You are instructed that permitted where inference is by law, that only such species evidence, inference is where such clear, positive inference is rebutted and uneon- tradieted evidence, dispelled then such inference is and dis- appears from Manifestly, the case.” the instruction was in square conflict with expert testimony the instruction on its effect would jury. be erased from the minds of the It would indicate required evidence was under all circumstances. loquitur criticizing ipsa instruction on res offered refused) (but majority states that it omitted the
requirement cause. proximate While such is not issue instruction, there, place had no for it mentioned dealt solely required negligence. with the evidence to establish *16 determining not a formula “In instruction. It reads: learning, skill defendant’s and fulfilled whether conduct the by imposed law, him they as been duties have stated to you arbitrarily you, permitted up to set a standard are not your by standard, you, up I remind the own. The set learning, ordinarily possessed practiced by skill and care and profession good standing others of the same the same locality follows, the therefore, except at same time. only way you may explained properly hereinafter learn through standard, presented is evidence trial in this physicians surgeons called as witnesses.
“However, exception just there is this to the rule stated: knowledge danger when a matter of it is common is precautionary involved certain conditions or to take certain measures, as, instance, perform for commonly failure to known of cleanliness sterilization, expert testimony duties required fact, may judicially to establish such a but it be part noticed of that knowledge as a fund of common shared generally. us with our fellow citizens " exception may This be otherwise stated as follows: When knowledge it is common that an or a event circumstance that happened developed has patient to or is of the kind-that ordinarily not occur in does the absence of on the physician attending him, whether by negligence may not the condition was caused be decided general from the circumstances as shown the evidence and light experience subject of common reason.” proximate properly adequately cause was covered in other instructions. majority opinion, holdings escape an endeavor to Widing,
in Barham v. 173], Cal. and other therewith, say: eases cited in connection has “In the this to applicable cases cited where doctrine was held injury that the did not cause the was remote defendant it followed as a matter of common na- from the injury ture of that the happen result would not without negligence. In present carelessness or case the inference injury that the was not caused defendant, but from existing plaintiff’s system, some source theretofore not remote but could be drawn from substantial evidence in plaintiff necessarily brought the record. Therefore the has not injury home compelling defendant. Before knowledge, inference based on common is at root of loquitur doctrine, ipsa justified the res would became necessary proximate to eliminate himself as injury.” cause of the The evidence was not “remote” injury the defendant did not cause the in the cited cases.
545
Barham case
and his
posi
nurse
defendant
testified
tively that
the needle was sterilized. The same is true of
Assn.,
Bellandi v. Park Sanitarium
508];
“The
Widing,
case of Barham v.
173],
312] “ ‘ “If . necessary . . it conclusively is to demonstrate beyond possibility negligence of a re- doubt that the injury, possible sulted it would never be to recover in negligence a case of practice profession of a which is not an exact science.” “ necessary ‘It is not trial of civil that the cir- cases establish cumstances shall of the defendant as proximate injury certainty cause with such absolute every as to exclude other conclusion. is sufficient if there upon is reasonably substantial evidence support judgment . . .’ seek to distinguish “Defendants the instant case from the case, there,
Barham because the infection started from the spot injection, exact while in this case it was in the spot of the necessarily the exact
general locality but not Here, sound. injections. is tenuous to be This distinction too region pierced where the needle the infection might follow, gums, the reasonable inference unsterilized gums germ unsterile jury, if drawn that a on the and caused infection. carried into the tissue on the needle matter common is a result of an unsterile condition already knowledge under cited. the cases danger unsterile instru- “. . . of infection common dirty operation, a matter of such ment, or a field of reasonable draw the that a is authorized to *18 by negligence where caused inference that an infection was operative field is used, an instrument is or the unsterile not properly sterilized . . . [cases cited]. 908], P.2d Parker, Cal.App.
“In Roberts v. osteomyelitis of the a malpractice dentist was sued for where X-ray jawbone operation had been set in an where no after operation. field of taken to condition of the determine the good practice Experts of testified that under the standards X-ray been taken prevailing community have the should evidence intro- before the tooth was There was extracted. that the tending prove defendant to duced behalf of the a extraction of tooth. disease had its source other than the failure argued the nothing It was that there was to show that proximate to dentist the use due care on the the was argument osteomyelitis. disposing In this cause the the court said: ' “ testimony tending Therefore, if to show spite of the sustain origin there of the disease different by jury, reached the which has been opposite conclusion the verdict In other words after the must be sustained. verdict its fairly rendered, all the circumstances jury been the has which together with inference case, reasonable of may therefrom, support will be marshaled be drawn supra.) by (Barham Widing, v. Measured judgment. circumstances are foregoing present rules the of the case the legally jury’s (Dimock v. to sustain verdict. sufficient supra; Ley Bishopp, v. Miller, supra; Widing, Barham ’ ” supra.) clearly no for a distinction between is basis There appli- far Widing, supra, so at bar and Barham case ipsa concerned, cability loquitur of res is of the doctrine majority will not opinion attempted distinction intelligent scrutiny. If this doc- unbiased the test of stand applicable case, trine is then can to this there be no jury erroneously but was instructed, and that such prejudicial error plaintiff. was would, therefore,
I judgment. reverse the J., TRAYNOR, Dissenting. agree I cannot that it was not prejudicially for erroneous the trial court to limit the testi mony plaintiff’s only expert witness. a field of law in expert testimony essential, rulings deprived below plaintiff of fair opportunity prove allegations of his complaint. necessary
It was competent to establish evi- (1) dence genito-urinary the. infection was centered tract, (2) infection, chronic, there was no latent or when de- (3) fendant made the examination, and that the infection was caused defendant’s failure exercise due care in the particularly examination, conduct the sterilization of the instruments used. Plaintiff does dispute that there no direct evidence
tending to establish that defendant negligent. not essential that produce he Upon proof such evidence. originated that the infection in the area examined and that present it was not before examination, could reasonably infer the infection was introduced examination and therefore caused
defendant. It is *19 common not that infections do ordinarily during occur medical treatment unless is there negligence. (Barham Widing, 210 206, v. Cal. P. [291 173].) testimony If expert that establishes his infection during arose treatment and that it would medical ordinarily treatment, negligent not arise in the absence jury may ipsa loquitur. infer res on the basis of (Sinz ; Owens, v. 33 Cal.2d P.2d Bellandi 753 [205 3] Park ; Assn., Sanitarium P.2d Cal. [6 508] Widing, supra.) Barham v. rely
Plaintiff
upon
ipsa
could
loquitur,
only
res
however,
if he
by expert
established
testimony the first two elements
case,
of his
location
the infection and the nature of
origin,
its
not
(Per
are
matters of
knowledge.
common
kins v. Trueblood,
642];
Plaintiff introduced interrogated about had Dr. Webb plaintiff’s After counsel experience professional de- background educational qualifications. to the witness’s fense counsel raised doubts as only hypo- one permitted The trial court Dr. Webb to answer question He before the court. thetical based permitted testify experience not with diseases to about tract, although the offer of genito-urinary infections of the knowl- proof considerahle indicated that he had chambers that “we are edge made clear thereof. Plaintiff’s counsel procedure testify as asking not to to witness testify the cause and asking him as to used. We are nonetheless re- court nature of this infection.” The trial questioning the location permit any about fused further objection upon counsel’s and nature of the infection defense performance the witness was not performed not seen one cystoscopie and had examinations ruling the witness precluded Angeles in 1944. This Los septic was not caused testifying that the infection of the examination the time condition in the tract at originating systemic one or that the condition was not local upon his depended ease Plaintiff’s before the examination. ability disprove possibilities. those stated examination, the witness During of his course competently con- had been examination he assumed the asked cross-examination, defense counsel ducted. On witness: hypothetical
“Q. Doctor, pro- from the that was you you cystoscopie pounded to assumed that the examination very very thoroughly, you competently was made ? did not Manipulation of the instruments or “A. manual—what say manipu- I the instruments the manual mean to is that evidently very good. lation of them was Sterry I: move that the answer counsel] [defense “Mr. question. responsive be stricken question? you “Will read question.) the last “(The reporter reads I that- “A. assumed yes no, ? you just doctor Q. Will answer
‘ ‘
yes.
“A. I
answer that
can
’’
Sterry
: That
all.
“Mr.
*20
plaintiff’s
Dr. Webb
examination,
redirect
counsel asked
On
Upon objection,
court
explain
answer.
how he would
question
ground
permit
to the
refused to
an answer
question
ambiguity
there was no
counsel’s
defense
sustain
the witness’s answer. The record does not
chambers,
ap-
holding.
proof
offer of
From the
only
testify
the actual
pears that Dr. Webb meant to
physical
competent.
did
conduct of the examination was
He
opinion
express
not
to
an
about
intend
that statement
technique
he
examination. Since
sterilization
before the
permitted
explanation,
to
was not
make that
impression
only expert
plaintiff’s
left with the
witness
approved
all its
defendant’s
of the examination in
conduct
phases.
ruling is
prejudicial
trial court’s
effect
readily apparent.
repeatedly
been
held
refusal
has
that the
explain
yes
a
a
or no
permit
trial court to
the witness to
(McGuire
353,
Baird,
error.
v.
Cal.2d
answer is reversible
Transportation
915];
Park Auto
355-356
P.2d
Webber v.
[70
321.)
Co.,
718];
province competent practitioner. degree His of medical familiarity technique cystoscopy of with and the of conduct irrelevant, cystoscopic is for he was not called examinations testify technique to the standard of about of conduct possible require the examination. “The not best law does only persons qualifications of as witness, kind of a but such community daily reasonably upon seeking relies ordinary practitioner medical advice . . . the medical should regular as which a medical be received on all matters to necessarily general knowledge.” training involves some subject Evidence, 569, 665.) of (2 Wigmore, p. When the § inquiry required not standard of care but the nature location, physician practice of of an ailment its “a necessary expert a experience is an it is not that ... particular made the disease witness of this should have class any inquiry specialty in to make his tes a order involved in (Drucker Philadelphia timony expert.” as an v. admissible 796]; A. Dairy Co., Inc., 437, 35 Del. Products [166 Heights Hospital, v. 285 N.Y. Meiselman Crown Winston, 425, 430 Johnson v. 68 Neb. ; N.E.2d [94 367] A.2d Young Stevens, 132 607]; N.J.L. N.W. Insurance ; Hathaway’s Administrator v. National 115] Life Hood, 506, 515, 516 Co., 335, 351; 99 Wash. Vt. Swanson 135].) present plaintiff's allowed to testimony The that witness was physician practicing competent he is a demonstrates that kept general practice, he has abreast medical that familiar with study, and that developments research and latest experience has with diseases and infections he had Treatment of infections and genito-urinary tract. in trade of cause, effect, are the stock nature, their specialization does growth The practicing physician. signalizing the practitioner disqualify general a not body merely because patient’s in a existence of an infection body in- where the specialist on he is that therefore, committed error court, The trial fection exists. testify to qualified to holding Dr. Webb was not probable its time to plaintiff’s infection and location of origin. opinion majority holds that if even it were error to testimony, prejudicial Dr. it would not exclude Webb’s reply Dr. testified to the one he was since Webb objection be- over defendant’s that he permitted answer urinary by the was carried into the tract lieved the infection answers witness’s examination. Defendant contends merely reiterative questions would have been the other contention. reply support does not first. record It is true that Dr. Webb at stated a lengthy close of lengthier question to an answer even that he believed the urinary infection was carried into tract the exam testimony ination. This was essential plaintiff’s case. plaintiff negative also essential that possible causes suggested by the infection expert defendant and his wit nesses. The excluded the trial court would qualified have constituted evidence *22 infection could have been caused the conditions relied upon by defendant. Plaintiff was entitled to have that evi jury dence opposition considered testimony to the expert witnesses, defendant’s prejudicial and it was error to deprive him of Moreover, such evidence. even to the question permitted one that Dr. Webb was answer, to prejudicial clearly effect of ruling apparent. The manner which the trial jury court informed the that Dr. qualified only Webb was question to answer one indicated a degree low qualification,1 of belief in the witness’s and ob viously had upon its effect jury’s consideration of the weight given to testimony. be There is no doubt that expertness lack properly presented considerations of are to govern weight given to testimony. (McGhee Copper v. Raritan Works, 376, 133 N.J.L. 377 [44 388]; 290, Rathjen, A.2d 152 733].) Salmon Cal. [92 properly These considerations opposing were raised counsel cross-examination, strength but the trial court added argument of defense counsel the manner of ruling. its extremely independent be an jury that, would notwith standing the cumulative effect these several erroneous rulings, plaintiff’s Would choose to believe witness. Plaintiff was entitled to have or fall on merits, his ease stand its own rulings prevented and as the the trial insofar court its thereon, prejudicial. the error was consideration Finally, it is contended extent examination of expert an witness is within the discretion of the trial court ruling appeal. and that its will not be disturbed on court, however, judge qualifications trial is not final allowing 1“I him am to answer that one I only that think give he is and answer, you will that belief to which qualified you ’ ’ believe that it is entitled. qualifications ruling upon is re- an witness. Its those an abuse of dis- whether there has been viewable to determine qualified expert because of an The exclusion of a cretion. qualifications is, law, matter erroneous view of his as a (Meiselman requiring reversal. v. Crown abuse of discretion Heights Hospital, 389, 367]; N.E.2d Johnson 285 N.Y. 607]; Wigmore, Winston, 425, N.W. Neb. 454.) Evidence, 2090, p. § competent testify produced medical witness to
Plaintiff competent of all medical to matters within the required properly to do. practitioners. This much he was relevant erroneously excluding witness’s effectively denied the trial court abused its discretion (Meiselman v. prove his case. opportunity a fair N.E.2d Heights Hospital, 285 N.Y. Crown judgment. 367].) I reverse the would therefore J., Carter, J., concurred. Gibson, C. appellant’s above to read as opinion was modified January 12, Carter, 1950. rehearing
petition for a was denied rehearing. for a J., Traynor, J., voted No. 5969. In Bank. Dec. 1949.] [Sac. GEORGE, TAYLOR, Appellant, v. MARJORIE MARY Z. *23 Executrix, etc., Respondent.