Bardessono v. Michels

• Decision Date: 29 December 1970
• Citation: 478 P.2d 480,91 Cal.Rptr. 760,3 Cal.3d 780
• Court: California Supreme Court
• Parties: , 478 P.2d 480, 45 A.L.R.3d 717 Dennis BARDESSONO, Plaintiff and Respondent, v. Jean MICHELS, Defendant and Appellant. L.A. 29758

Page 760

91 Cal.Rptr. 760

3 Cal.3d 780, 478 P.2d 480, 45 A.L.R.3d 717

Dennis BARDESSONO, Plaintiff and Respondent, v. Jean MICHELS, Defendant and Appellant.

L.A. 29758.

Supreme Court of California

Dec. 29, 1970.

Rehearing Denied Jan. 28, 1971.

Schauer, Ryon & McIntyre and Robert W. McIntyre, Santa Barbara, for defendant-appellant.

Halde, Barrymore & Stevens and Ronald C. Stevens, Santa Barbara, for plaintiff-respondent.

TOBRINER, Justice.

For the reasons explained herein, we conclude that the judgment for plaintiff in this medical malpractice action should be affirmed. The trial court properly followed the doctrine of res ipsa loquitur in instructing the jury that it could infer negligence from the happening of the accident alone, if it found from the testimony of physicians called as expert witnesses, common knowledge, and all the circumstances, that the injury was more probably than not the result of negligence.

1. The facts.

In June 1966, the plaintiff left his work as a radar technician in California for a brief vacation at the farm of his wife's parents in Kansas. During three or four days of his vacation he assisted his father-in-law in cutting and clearing thistles from the fields. He felt a little stiffness in his shoulder, which soon disappeared. After he left Kansas on June 20, 1966, plaintiff returned to his job as a radar technician and performed various chores around his house and property which involved the use of his arm. During that time his arm again began somewhat to bother him, and at night he put ointment on his arm, took an aspirin, and by morning the arm seemed all right. Gradually, however, the soreness in his right shoulder increased, although he continued to be able to move his arm.

On July 12, 1966, plaintiff, thinking that he had pulled a muscle or strained his shoulder, first visited Dr. Jean Michels, an orthopedic surgeon. Dr. Michels examined plaintiff, asked him to perform some arm movements which he found somewhat difficult, and diagnosed his conditions as bicipital tendonitis and posterior shoulder capsulitis. In other words, he was suffering from an inflammation of the tendons and ligaments of his right shoulder--a common condition which normally relates to strenuous physical activity. Using a 5 cc. syringe Dr. Michels proceeded to give plaintiff four injections ¹ of a mixture of cortisone and a local anesthetic (xylocaine) deep into the sore areas of his right shoulder.

When plaintiff received his first injection, he 'experienced terrific pain up and down (his) arm.' He had never felt such a 'terrible pain' in his life from receiving injections; he was trembling and, after the second shot, his right arm lay limp at his side, and he felt a 'tingling' sensation as though he had slept on it. When the doctor gave plaintiff two more injections, he again experienced 'terrific pain.' Upon his complaint, the doctor commented that he was a 'big sissy,' and said that he 'shouldn't carry on like that at the time of the injections.' She prescribed empirin with codeine tablets for the pain, instructed plaintiff not to work with the arm, but to perform a few arm exercises.

Plaintiff used the tablets as prescribed and returned to work without using his arm. The pain in his shoulder and the burning sensation persisted and he experienced difficulty in sleeping. His arm grew weak, and on July 15th he again visited Dr. Michels. She instructed him to report to a laboratory for a blood test. He attempted to refrain from taking the pills that the doctor had prescribed for the pain in his shoulder, but he could not sleep and the aching and burning was so great that he resumed taking the pills.

Plaintiff continued to take the pills and to follow the doctor's instructions as to refraining from moving his arm. Yet the arm grew weaker, the pain continued; plaintiff became concerned that the 'pills were covering up something that was wrong with this arm.' On July 22d plaintiff ceased taking the medicine, could not sleep that night, and experienced difficulty in sitting, dressing himself, writing, or holding his head up. The following morning at 6:30 or 7 a.m. plaintiff went to the emergency ward of the Lompoc Hospital, explained his condition, and asked to be admitted to the hospital. Someone on the hospital staff telephoned Dr. Michels who, upon arrival, informed plaintiff that there was no object in his being admitted to the institution. Dr. Michels ordered that X-rays be taken of the shoulder at the hospital, but the X-rays failed to reveal any cause for plaintiff's distress. The doctor took plaintiff to her office, examined him, discovered that his condition had changed somewhat from his earlier visits, and gave his lower shoulder another injection of xylocaine and cortisone.

After plaintiff's third visit with Dr. Michels on July 23d, his condition deteriorated; he could not write; he could not dress himself without his wife's assistance; the pain continued despite the pills. Plaintiff visited the doctor on July 25th and again on July 28th. The doctor told plaintiff that she was going on a tow-week vacation and that if he wanted further treatment, she would be available after her return. Plaintiff said he might visit another doctor during her absence.

Upon the recommendation of his family doctor plaintiff visited Dr. Leonard Burgess, an orthopedic surgeon, on Saturday, July 30th. Plaintiff told the doctor that he was 31 years of age, recounted the history of his shoulder condition, and indicated that he had received several painful injections from Dr. Michels. Dr. Burgess noted that plaintiff's right shoulder revealed wasting and atrophy of the muscles and upon closer examination he discovered complete paralysis of several muscles in the shoulder and back.

Dr. Burgess indicated that plaintiff would be required to stay in a hospital for tests to determine the cause of the muscle paralysis. During the 19 days of plaintiff's stay in the hospital Dr. Burgess traced the nerve supply to the paralyzed muscles and observed that they all combined in a nerve complex called the posterior cord of the brachial plexus. The tests and examinations indicated that the paralysis was caused by trauma to the posterior cord of the brachial plexus, which is a nerve trunk not quite as large as an ordinary pencil, two inches in length, and located deep inside the neck-shoulder region about one and one half or two inches underneath the skin in the middle of the shoulder. ²

In the hospital the plaintiff began to receive physical thereapy treatment and after his release he has continued such treatment under the care of Dr. Burgess. The therapy has improved his condition. At the time of trial, however, plaintiff still experienced difficulty in performing several simple physical movements with his right arm, such as reaching for his wallet, shifting gears in his automobile, throwing a ball, and swimming. The muscles of his shoulder showed atrophy at trial and Dr. Burgess indicated that plaintiff would probably never completely recover from the effect of the paralysis.

At trial plaintiff's proof went to the point that the injections administered by Dr. Michels on July 12th had caused a trauma to the posterior cord of the brachial plexus and thus resulted in the paralysis and atrophy of plaintiff's shoulder muscles. Dr. Burgess gave support to plaintiff's theory by testifying that the injection of cortisone and xylocaine into the shoulder does not usually cause the sort of pain which plaintiff described and that an injection from the back of the shoulder might get close to the affected nerves if the needle penetrated to that depth. He also testified that the nerve cord lay approximately one and one half to two inches from the surface and that if the injection had been directed into the proper place, it would not have hit the nerves that suffered damage. In addition, defendant testified that she used a needle two and one half to three inches long in order to perform the injections. Dr. Burgess indicated that he did not know precisely what caused plaintiff's paralysis, but testified that, assuming the cause was traumatic in origin, this type of injury does not ordinarily occur in the absence of negligence in administering the injection.

In opposition, defendant theorized that plaintiff's nerve damage and paralysis arose not from the medical treatment, but from the original injury to his shoulder. Dr. Gregg, defendant's expert witness, indicated that medical knowledge does not reveal why extremely few people who exercise their muscles too strenuously suffer paralysis while almost all others develop only soreness. He termed this rare condition 'paralytic brachial neuritis.' ³ Neither Dr. Gregg nor Dr. Burgess explained why plaintiff had not developed paralysis and nerve damage before he visited Dr. Michels and had only begun to suffer these symptoms after the injections. Dr. Burgess, however, did testify that muscles atrophy very rapidly after becoming paralyzed.

Plaintiff requested damages for lost wages, medical expenses, his physical disability, and pain and suffering. After the jury returned a verdict in favor of plaintiff in the sum of $42,000, defendant appealed, raising only two contentions: (1) The trial court committed prejudicial error in instructing the jury that under the doctrine of res ipsa loquitur it may consider the expert testimony and 'the common knowledge among laymen that injections in the arm, as well as other portions of the body, do not ordinarily cause trouble unless unskillfully done * * *.' (2) The trial court erred in refusing to grant a new trial upon an allegation that the jury committed misconduct during its deliberations.

2. The trial court properly rendered an instruction which permitted the jury to apply the doctrine of res ipsa loquitur to the present case.

The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable...