Agnew v. Larson

• Decision Date: 29 November 1961
• Citation: 197 Cal.App.2d 444,17 Cal.Rptr. 538
• Court: California Court of Appeals Court of Appeals
• Parties: Frances AGNEW, Plaintiff and Appellant, v. Edwin LARSON, Defendant and Respondent. Civ. 25032.

Page 538

17 Cal.Rptr. 538

197 Cal.App.2d 444

Frances AGNEW, Plaintiff and Appellant, v. Edwin LARSON, Defendant and Respondent.

Civ. 25032.

District Court of Appeal, Second District, Division 3, California.

Nov. 29, 1961.

Rehearing Denied Dec. 27, 1961.

Hearing Denied Jan. 24, 1962.

Frances Agnew, in pro. per.

Harold B. Pool, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from an adverse judgment in an action for damages for malpractice by a physician. The cause was tried by the court sitting without a jury.

During 1934 to 1938, inclusive, plaintiff employed defendant Dr. Larson to treat her general physical condition. In April 1934 he prescribed for and caused vaginal suppositories containing an estrogen known as Theelin to be administered to her. In February 1935 he prescribed for and caused a drug known as Thyro-Ovarian Emplets to be administered to her.

On January 27, 1942 plaintiff employed Dr. Larson to examine her and prescribe medical treatment or medication. On numerous occasions to and including June 1, 1943 Dr. Larson prescribed and directed her to take a hormone consisting of Stilbestrol in tablet form. She took the tablets at the times and in the number directed. On June 1, 1943 Dr. Larson prescribed an additional 100 tablets of the drug to be taken one tablet a day.

Prior to taking the additional tablets she stopped obtaining treatment from Dr. Larson and shortly prior to July 17, 1944 she employed Dr. John Wilson to further administer to her. On July 17, 1944, at Dr. Wilson's direction, she obtained the additional 100 tablets prescribed by Dr. Larson and took one a day. Dr. Wilson prescribed additional quantities of the same drug. From April 8, 1942 to January 27, 1945 plaintiff took a total of 51.75 milligrams of the drug.

Dr. Larson held himself out as a doctor of medicine possessing that degree of skill and learning ordinarily possessed by other reasonable, skillful, and prudent physicians practicing in the community. He knew plaintiff's mother had had cancer of the breast and had died therefrom.

On January 15, 1945 plaintiff discovered a lump in her right breast. Laboratory tests disclosed cancer. On February 10, 1945 plaintiff's right breast was removed.

The foregoing facts were stipulated.

The complaint alleged that in prescribing Stilbestrol for plaintiff, Dr. Larson negligently prescribed a drug which is a synthetic estrogen containing cancerous properties which would produce or cause cancer of a woman's breast or stimulate or activate the growth of dormant or latent cells, particularly in women with a family history of cancer of the breast. The court found these alleged facts to be untrue.

The complaint also alleged the taking of Stilbestrol over the prolonged period, considered in connection with plaintiff's physical condition and family history of cancer of the breast, caused her cancerous condition; Dr. Larson failed to possess or exercise that degree of skill and learning ordinarily possessed and exercised by other skillful physicians practicing in the County of Los Angeles; as a proximate result thereof plaintiff suffered general and special damages. The court found these alleged facts were not true.

It is also alleged the Theelin suppositories and Thyro-Ovarian Emplets caused the development of foreign growths, tumors, and polyps in plaintiff's uterus, of which Dr. Larson had knowledge after March 29, 1938; the same contributed to the condition which resulted in the removal of plaintiff's breast. The court found these alleged facts to be untrue.

In addition to the findings stated above, the court found: 1. Dr. Larson exercised that degree of skill and learning ordinarily possessed by other reasonably skillful and prudent physicians practicing in the County of Los Angeles at the time. 2. The foreign growths, tumors, and polyps found in plaintiff's uterus had been there since 1930 and prior to the time Dr. Larson prescribed Theelin suppositories and Thyro-Ovarian Emplets. 3. The Stilbestrol prescribed for and taken by plaintiff was not capable of causing stimulation of latent cancer cells and did not cause cancer in the breast of plaintiff.

Plaintiff's first assignment of error is that the evidence does not support the findings. The point cannot be sustained. No purpose would be served in relating the evidence at length. Dr. Larson's deposition was read in evidence by plaintiff. He testified Stilbestrol did not cause stimulation or more rapid growth of cancer; it had no tendency to cause or increase cancer; neither Theelin nor Thyro-Ovarian Emplets had any effect on latent or incipient cancer; they neither cause nor stimulate polyps; during the period from January 27, 1942 to January 1945 Stilbestrol was a medication in general use by physicians and surgeons in good standing in the County of Los Angeles; large doses of it will inhibit the growth of cancer; during the years mentioned it was used and prescribed by physicians and surgeons in good standing in the County of Los Angeles for the care and cure of cancerous conditions; the malignancy which developed in plaintiff's breast was not caused by the administration of the Stilbestrol or the Theelin or the Thyro-Ovarian Emplets. On motion of defendant it was ordered that the deposition of Dr. Larson, read into the record by plaintiff, also be considered as his testimony in his own behalf.

Dr. John Wilson died prior to the trial. His deposition was in part read in evidence. He denied that Stilbestrol contains cancerous properties which may produce or cause cancer of a woman's breast. He denied that Stilbestrol should not be administered to women with a family history of cancer of the breast.

In response to a hypothetical question embodying the facts we have related, Dr. R. B. Jenkins, who had treated hundreds of patients suffering from cancer of the breast and who had used and prescribed Stilbestrol, Theelin, and Thyro-Ovarian Emplets in hundreds of cases, testified that in his opinion a physician who had done the things Dr. Larson had done had exercised that degree of skill, care, and diligence ordinarily exercised by physicians in good standing in this community; the use of Stilbestrol by plaintiff in the amount and over the period shown by the evidence did not cause cancer in her breast and could not have aggravated any cancerous condition which might have existed in her breast.

Plaintiff is laboring under a misconception as to the power of this court. She says she produced a preponderance of the evidence. The question, which side produced the preponderance of the evidence, was for the trial judge. An appellate court decides questions of law only. When the contention is that the evidence does not support the findings, as in the present case, we examine the record to determine whether there is any substantial evidence supporting the findings. An appellate court can only consider evidence most favorable to the findings. (Gillespie v. Gillespie, 121 Cal.App.2d 95, 97, 262 P.2d 607.)

Plaintiff argues the weight of the evidence and the credibility of witnesses at great length. '[W]e have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.' (Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757, 759.) If there is any such evidence, our task is at an end. In this case the findings are supported by substantial evidence.

Plaintiff also contends the court abused its discretion in denying her motion for a continuance when the cause came on for trial on August 4, 1959.

The original complaint was filed on January 15, 1946. An amended complaint was filed on March 29, 1946, to which a demurrer was sustained without leave and judgment entered. On October 31, 1947 the judgment was reversed. (Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851.) Answer was filed January 15, 1948. A second amended complaint on which the action was tried was filed December 14, 1951. Answer was filed and the cause was at issue on March 3, 1952. The cause was set for trial and ordered off calendar at the request of plaintiff on five occasions. There were 15 continuances. There were three mistrials, one due to misconduct of a juror and one due to illness of counsel for plaintiff. The third was granted on motion of defendant. The record does not show the ground. Plaintiff says it was 'because of the defection, unquestioned by either the trial Court or plaintiff's attorney, of two jurors.' In the meantime, a settlement was had between plaintiff and Dr. John Wilson. In 1955 Dr. Wilson, who was a prospective witness for defendant, died. The cause came on again for trial on June 17, 1959. On June 17, pursuant to stipulation, trial was continued to August 4, 1959. The minute order says, 'No More Continuences on Plaintiff's Motion.' On August 4 counsel for plaintiff moved for a continuance on the ground a pretrial had not been had and Dr. Marcus Rabwin,...