Agnew v. City of Los Angeles

Decision Date16 May 1950
CourtCalifornia Court of Appeals Court of Appeals
PartiesAGNEW v. CITY OF LOS ANGELES et al. Civ. 17189.

Paul Overton, Los Angeles, and Neil G. Locke, Beverly Hills, for appellant.

Harold B. Pool, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment for defendant Larson entered on a verdict of a jury in a malpractice action. This case had been previously tried and resulted in a judgment of nonsuit. On appeal the judgment was reversed, Agnew v. City of Los Angeles, 82 Cal.App.2d 616, 186 P.2d 450, and the matter retried, resulting in the judgment here appealed from.

Defendant Larson is a physician and surgeon, specializing in surgery, licensed to practice in the State of California. Plaintiff had been a patient of his on a number of occasions from 1920 or 1921, the last in 1942. He had also treated other members of plaintiff's family.

In the early evening of March 3, 1943, plaintiff, then 51 years of age, slipped and fell on some wet leaves while walking on Hollywood Boulevard. She was assisted to her feet and taken to the lobby of a nearby hotel where she telephoned defendant. She was iformed by his secretary that defendant was out of the city and was advised to go to the Hollywood Receiving Hospital. She did so, was examined by a physician and later sent home in a taxicab. During the night she suffered considerable pain and the next morning telephoned defendant again and conversed with him.

There is a sharp conflict in the evidence regarding this and three subsequent conversations between the parties. Plaintiff testified with respect to the first conversation that: she told defendant about her fall, that she was in great pain, was waiting for him to come over to see her, and that she had gone down so heavily she felt sure her hip was broken; he replied he had received a report from the receiving hospital that she was just bruised, it was not necessary for him to visit her, and that he was too busy; he advised her to put a pillow under her knee and keep any strain off her hip; he also prescribed anacin, rest and hot baths, and told her to call him the following morning.

Defendant testified that plaintiff told him about the fall and about going to the receiving hospital. He asked her whether any X-rays had been taken or suggested while she was in the receiving hospital, and she said 'they had assured her she had only contusions and bruises'; she asked him if he would come and see her and he told her no, he could not and if she wanted him to attend her she would have to go to the hospital or at least have some X-ray pictures taken. He suggested a laboratory which had a portable X-ray machine that could be sent to her room. Plaintiff replied that in view of the fact she had been assured at the receiving hospital she had no breaks or injuries other than contusions, she did not want to go to the expense of hospitalization and X-rays. He told her if she felt she was in trouble she should go to the hospital or get a doctor in Hollywood.

Plaintiff testified that in the three subsequent conversations with defendant she told him her injured leg was turning out, the pain was increasing, and asked him if he did not think she should be in a hospital because it was difficult for her to get her meals when she was unable to get up and about; he said it was not necessary to send her to a hospital, she would get over this in a couple of weeks, reiterated again that a bruise was more painful than a break; at no time was the subject of X-rays discussed by defendant.

Plaintiff was confined to her room until March 11th. She testified that on the 11th while she was leaning against a dressing table, her right ankle turned over and she heard her right hip bone crack, She was immediately removed to the Cedars of Lebanon Hospital, and later to the California Hospital. On March 13th defendant called upon her and took charge of the case. X-rays taken on the 11th and 13th disclosed that plaintiff had suffered a complete, displaced fracture of the right femur, with rotation of the head. In the latter part of October and early November of 1943 plaintiff's knee commenced to hurt and she complained of increasing pain in her hip. Defendant told her this was not an unusual aftermath of a bone fracture, and continued activity and exercise would remedy the situation. Thereafter plaintiff sought the advice of other doctors and it was discovered that aseptic necrosis of the head of the femur had developed, from which plaintiff has suffered a permanent, crippling disability. Aseptic necrosis of the femur is a 'disturbance of the circulation in the head of the * * * femur'--a 'loss of vitality,' resulting in a stiffening of the hip.

The theory of plaintiff's case was that defendant was negligent in not having X-ray pictures taken between March 4th and 11th and that such negligence was a proximate cause of the further injuries sustained by her on March 11th and the admitted necrotic condition which later developed.

At the trial plaintiff produced three expert witnesses--Dr. John C. Wilson and Dr. Paul E. McMaster, both of whom had attended plaintiff, and Dr. Frank R. Webb.

Dr. Wilson, a specialist in diseases and injuries of bones and joints, testified he attended plaintiff from May to December of 1944, and that she had a healed fracture of the neck of the femur with an aseptic necrosis of the head. He explained that an aseptic necrosis of the femur is caused by injury to the blood vessels which supply the head of the femur; about 50% of the patients get necrosis following a fracture; it never comes right away; you never can determine it in the beginning; it comes usually between the 8th and 12th month following an injury. On cross-examination he was asked: 'Doctor, isn't it a more severe case of necrosis if it is an instance of an impacted or partial fracture? A. Yes, it is. I mean if it is--the so-called incomplete and impacted fractures are the ones that develop the aseptic necrosis. The complete fractures are less likely to than the others. * * * Cracks are the ones that most often get it.' He also testified that to his knowledge there was nothing a physician or surgeon could do to prevent the development of necrosis.

Dr. McMaster, an orthopedic surgeon, testified he treated plaintiff in the latter part of 1945 and has seen her off and on since then; that the last X-rays taken of plaintiff on October 21, 1948, show 'evidence of degenerative changes, apparently the result of an inadequate blood supply to the head of the right femur'; the percentage of patients who developed necrosis after fractures such as sustained by plaintiff would run 25 to 30. After examining the X-rays taken of plaintiff on March 11th and 13th, 1943, he was of the opinion that she had suffered a complete fracture with displacement of the neck of the right femur, and that the condition of her right femur today was a direct result of that fracture. He was also of the opinion that on March 3, 1943, plaintiff suffered a 'fracture of the neck of the femur on the right side,' and at the time of her injury in her dressing room on March 11th sahe had 'a displacement occurring at the site of the fracture * * * there is a demonstrable displacement. There may have been some displacement before. That I don't know,' due to the fact that no X-rays were taken between March 3rd and 11th. In answer to a question as to which injury--the injury of March 3rd or that of March 11th--would 'be more reasonably probable to produce the necrotic condition' found in plaintiff, he answered that either injury in his opinion could have led to the necrotic condition of the head of the femur. He was asked, 'Would either one in your experience be more reasonably probable to lead to it? A. Well, that's difficult to say. A fracture at its occurrence, assuming that there is a fracture present in the neck of a femur, at that time interrupts the blood supply to the head. Now, the question of degree is a question of--the question of degree is apparently not the great importance that it is assumed to be.' On cross-examination, he was asked, 'Doctor, isn't it a fact that necrosis is more apt to or more liable to set in where you have a fracture without displacement than those cases in which you have a fracture with displacement, providing, of course, you get healing of the fracture where it was originally broken? A. Well, that has not been my experience.' He also testified that it was possible for a person to walk who had sustained a complete fracture of the neck of the femur and also where there is a partial displacement.

It is unnecessary to relate the testimony of Dr. Webb since he testified as to a matter of fact which was contrary to plaintiff's expectation and contrary to what defendant conceded to be the fact, and plaintiff, therefore, did not question him further.

One of appellant's assignments of error is that the trial court committed prejudicial error in refusing to permit Dr. Vernon L. Andrews, a specialist in pathology, to testify. She argues, in effect, that up to the time of Dr. Andrews' testimony she had established a prima facie case from which the jury could have inferred that defendant was guilty of negligence during the period between March 4th and 11th; that it was then necessary for her to establish that such negligence was a proximate cause of the injury of March 11th and of the aseptic necrosis, the pivotal question being whether defendant's alleged negligence contributed to or aggravated in any way the resultant aseptic necrosis; that the testimony of Dr. Andrews would have established this causal connection.

The following indicates the circumstances under which Dr. Andrews was not permitted to testify. After appellant had been taken by surprise by the testimony of Dr. Webb, one of her attorneys asked for a continuance to give him 'an opportunity to determine whether or...

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