Agnew v. City of Los Angeles

Decision Date20 July 1955
Citation286 P.2d 556,134 Cal.App.2d 433
CourtCalifornia Court of Appeals Court of Appeals
PartiesFrances AGNEW, Plaintiff and Respondent, v. CITY OF LOS ANGELES, a Municipal Corporation; N. Edward Gourson: Edwin Larson and Orpha Cavender: Does One, Two, Three, Four, Five, Six, Defendants, Edwin Larson, Appellant. Civ. 20238.

Harold B. Pool, Los Angeles, for appellant.

Betty & Campbell, Marion P. Betty and Lionel T. Campbell, Los Angeles, for respondent.

MOORE, Presiding Justice.

Here is an action for malpractice. This is the third appeal. The first resulted in the reversal of a judgment of nonsuit, 82 Cal.App.2d 616, 186 P.2d 450; the second, in the reversal of judgment for defendant, 97 Cal.App.2d 557, 218 P.2d 66, by reason of errors in excluding the testimony of certain experts. The instant judgment authorized plaintiff's recovery of $37,883.91 and costs.

Appellant is a licensed physician and surgeon. He had administered to respondent from time to time during the 23 years preceding her accident on March 3, 1943. At that time she was 51 years of age. While walking on Hollywood Boulevard she slipped and fell on some wet leaves. She was taken to the lobby of a nearby hotel where she telephoned appellant's office. She was advised of his absence and thereupon visited the Receiving Hospital where her injuries were examined and she was sent some in a conveyance.

Having suffered all night, the following morning she informed appellant of the circumstances of her fall and that she believed her right hip bone was broken. He told her the hospital report indicated that she had suffered only a bruise; that he did not have time to visit her then; that she should take doses of anacin and hot baths, and rest and keep a pillow under her knee. In three subsequent conversations she informed appellant that her pain was increasing, suggested that she should be in a hospital because of her inability to care for herself and pointed to the fact that her leg was turning out. Thereupon, appellant replied that a bruise is very painful; that she would be up and about in a few weeks and that it was not necessary for her to be confined in a hospital.

On the eighth day after her fall and before appellant examined her, while leaning against a table she heard her injured hip bone crack. She was promptly transported to the hospital where appellant commenced to administer to her and continued until December 10, 1943. The X-ray films disclosed that the unfortunate lady had suffered a displaced fracture of the right femur with rotation of the head. Late in October, her knee began to pain her with increasing pangs in her hip. Appellant advised continued activity and exercise as remedial measures. Displeased with her lack of progress toward recovery, respondent learned from other physicians that aseptic necrosis of the head of the femur had developed and that permanent disability had set in.

In presenting her grievance to the trial court, respondent pleaded and successfully contended that appellant had been negligent in his failure to have X-rays made immediately after her fall on March 3rd; in advising her to bear her weight on the injured leg too soon after the setting of the fracture on March 11; in advising her to bear weight on the limb in October while she was complaining of pain. The jury having adopted the evidence in support of her contentions and having assessed her damage by their verdict, judgment was entered from which comes this appeal.

Practically the only attack upon the judgment is that prejudicial error was committed in allowing two physicians to testify as experts on the aseptic necrosis, a condition allegedly caused by appellant's neglect of respondent after her fall on March 3, 1943. One of those experts was Dr. Vernon L. Andrews, the other was Dr. Wendell White. There was no disqualification of either. In the former trial, Dr. Andrews attempted to testify on behalf of plaintiff. The trial court rejected him as a witness on the ground that, although he was a specialist in pathology, he did not have the required professional knowledge and learning of, and skill with reference to the subject under inquiry and was not familiar with the standards required of physicians under similar circumstances. But on appeal, Division Three of this court declared that 'his qualifications far exceed those of the average practicing physician. * * * The fact that Dr. Andrews was a specialist in pathology does not, in and of itself, render him incompetent as a medical expert * * *. The basic medical question presented to Dr. Andrews related to the subject of aseptic necrosis * * * he was fully competent to give the jury his opinion as to the cause of aseptic necrosis generally and as to the cause in the present case. * * * Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility.' Agnew v. City of Los Angeles, 97 Cal.App.2d 557, 565-566, 218 P.2d 66, 72.

Therefore, the qualification of Dr. Andrews is determined by the law of the case and nothing has occurred to defeat its applicability. A rehearsal of all his testimony as to his learning or experience or of the arguments of counsel thereon could add nothing to the decision quoted from 97 Cal.App.2d The doctor testified that he had done a general practice for 47 years; was familiar with the standard required of physicians under similar circumstances and with the standard of care in Los Angeles in the treatment of fractured femurs; had had daily experience, consultations with other doctors about their cases; had made tests, assisted at operations, observed and discussed fractures of the neck of the femur and aseptic necrosis of the head of the femur and various types of necrosis. In view of his vast learning and technical training and of the decision on the second appeal, it would be sheer folly now to disturb the finding of his qualification. Neither the arguments of appellant nor the contents of Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d 34, 29 A.L.R.2d 485 and Sinz v. Owens, 33 Cal.2d 749, 205 P.2d 3, 8 A.L.R.2d 757, reveal a good reason for disturbing the finding of the trial court. Contrary to appellant's contention, Dr. Andrews had not only his advanced learning and general experience, but he added to it a long 'occupational experience' 1 in daily serving, and collaborating with 'physicians under circumstances similar to those which confronted' appellant herein. Dr. Andrews testified that he was familiar with the standard of care in vogue in Los Angeles at the time of respondent's injury, in regard to the treatment of fractured femurs and fractures of the neck of the femur.

The other expert witness called by respondent was Dr. Wendell White who has been a licensed physician in California since 1912 and has done a general practice. He has treated broken bones including more than 25 hip fractures, two of which were under his care at the time of his testimony in this action. He takes care of fractures of the neck of the femur. He administered to respondent in 1951. He testified that it...

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7 cases
  • Kelly v. (In re Kelly)
    • United States
    • U.S. District Court — Southern District of California
    • 17 Septiembre 2013
    ...may find proximate causation even though one or more concurrent causes also contributed to that injury. Agnew v. City of Los Angeles, 134 Cal.App.2d 433, 439, 286 P.2d 556 (1955); see also Banville, 37 Cal.App.3d at 108, 112 Cal.Rptr. 126 (citing 38 Cal. L. Rev., pp. 379–380, William L. Pro......
  • Agnew v. Parks
    • United States
    • California Court of Appeals Court of Appeals
    • 10 Agosto 1959
    ...Cal.App.2d 557, 218 P.2d 66); and the third, pending when the instant action was instituted, in a $37,883.91 judgment affirmed (134 Cal.App.2d 433, 286 P.2d 556) and now final. The appeal as to John C. Wilson, now deceased, has heretofore been dismissed. Agnew v. Parks, 164 Cal.App.2d 837, ......
  • Smith v. Yohe
    • United States
    • Pennsylvania Supreme Court
    • 9 Octubre 1963
    ...eye of the patient, etc. [5] Cf.: Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338. [6] Same case: 97 Cal.App.2d 557, 218 P.2d 66 and 134 Cal.App.2d 433, 286 P.2d 556. [7] Duckworth has been cited with approval this Court on other propositions (Ward et al. v. Garvin, 328 Pa. 395, 195 A. 885; Bie......
  • Gist v. French
    • United States
    • California Court of Appeals Court of Appeals
    • 17 Octubre 1955 Napa and Sacramento, or in the large cities as well as in San Luis Obispo. (See our recent decision in Agnew v. City of Los Angeles, 134 Cal.App.2d 433, 286 P.2d 556. Not only was Dr. Kirkle educated in the same medical school where appellant graduated, but he has practiced in California......
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