Barton v. Owen

• Decision Date: 01 July 1977
• Court: California Court of Appeals Court of Appeals
• Parties: John J. BARTON, Plaintiff and Appellant, v. David Charles OWEN, M.D., and John M. Wasserman, M.D., Defendants and Respondents. Civ. 47170.

Page 494

139 Cal.Rptr. 494

71 Cal.App.3d 484

John J. BARTON, Plaintiff and Appellant, v. David Charles OWEN, M.D., and John M. Wasserman, M.D., Defendants and Respondents.

Civ. 47170.

Court of Appeal, Second District, Division 4, California.

July 1, 1977.

Hearing Denied Aug. 25, 1977.

Harney & Moore, Los Angeles, Ellis J. Horvitz Law Corp., Ellis J. Horvitz and Irving H. Greines, Encino, for plaintiff and appellant.

Kirtland & Packard, Wallace C. Reed and Robert E. Moore, Jr., Los Angeles, for defendants and respondents.

KINGSLEY, Acting Presiding Justice.

This is an appeal from the judgment for defendants in a medical malpractice case. The judgment is reversed in part and is affirmed in part.

This case involves allegedly negligent actions and omissions by the two defendant doctors in the course of their treatment of the plaintiff, between February 11 and March 19, 1972, for acute frontal sinusitis.

Plaintiff alleges that, as a proximate result of these negligent actions and omissions, he suffered a brain abscess for which he had to undergo surgery for an en bloc removal of the entire anterior portion of the right frontal lobe of his brain (prefrontal lobotomy).

The alleged-to-be negligent actions and omissions of the defendants consisted for the most part of: the failure to perform a culture and sensitivity test prior to February 29, 1972; the failure to take sinus x-rays prior to February 29, 1972; the giving and prescribing of inappropriate antibiotics to the plaintiff which in turn also masked the plaintiff's symptoms; the failure to furnish any antibiotics at all between about February 16, 1972 and February 20, 1972 and again between March 10, 1972, and March 13, 1972; and the failure to make timely usage of available means of obtaining drainage by way of delay in removing the polyps, delay in performing antrum irrigation, the failure to perform a trephination and the failure to apply cocaine packs.

I

From the uncontroverted facts of this case it is unquestionable that no negligent liability exists on the part of Dr. Wasserman. The record shows that Dr. Wasserman's only contact with the plaintiff occurred on February 10, 1972. On that day, the plaintiff experienced a sudden and sharp headache while he was at work. He took an aspirin but, feeling no relief, went home. Once home his wife then attempted to call Dr. Owen. She was unable to reach him, but instead talked to Dr. Wasserman who was covering for Dr. Owen. Dr. Wasserman stated that plaintiff's symptoms sounded like sinusitis, but he refused to prescribe any medication over the telephone. Instead, he suggested that the plaintiff should take some aspirin and see Dr. Owen the following morning. Dr. Wasserman was then never further contracted or consulted by the plaintiff. The next morning the plaintiff went to see Dr. Owen.

It is clear from the record of this case that Dr. Wasserman was not responsible for any of the allegedly negligent acts or omissions which the plaintiff claims were the proximate cause of his brain abscess. Dr. Wasserman never personally saw the plaintiff and never diagnosed or treated him. The only contact which had occurred between the plaintiff and Dr. Wasserman was that which indirectly arose by way of the call made by the plaintiff's wife to Dr. Owen. Thus, we uphold the trial court's judgment as to Dr. Wasserman, since the plaintiff has furnished no grounds upon which a jury could find him negligent. The plaintiff's claims of negligence only concern the treatment received by the plaintiff beginning from the time of his first visit to Dr. Owen on February 11, 1972.

II

With regard to Dr. Owen, the judgment of the trial court must be reversed. This is required because the trial judge erroneously charged the jury with respect to contributory negligence on the part of the plaintiff.

Before discussing the contributory negligence aspect of this case, we will first discuss the remaining issues that were raised on this appeal.

(A) Plaintiff contends that there was uncontroverted medical testimony which established that a culture and sensitivity test is essential for the proper diagnosis and treatment of frontal sinusitis. Thereupon plaintiff further claims that, since the test was simple, safe, inexpensive and highly diagnostic, defendant Owen was negligent as a matter of law in not submitting the plaintiff to such a test at an earlier time than February 29, 1972.

We disagree with the plaintiff's contention and further fail to agree with the respondent's contention that the appellant has acted improperly by raising the issue of negligence as a matter of law for the first time on this appeal.

The court in Panopulos v. Maderis (1956) 47 Cal.2d 337, 340--341, 303 P.2d 738, 740 stated: 'It is the general rule that a party to an action may not, for the first time on appeal, change the theory of the cause of action. (Citations.) There are exceptions but the general rule is especially true when the theory newly presented involves controverted questions of fact or mixed questions of law and fact. If a question of law only is presented on the facts appearing in the record the change in theory may be permitted.' (See Schirmer v. Drexler, 134 Cal. 134, 66 P. 180 (1901); Bogacki v. Board of Supervisors, 5 Cal.3d 771, 97 Cal.Rptr. 657, 489 P.2d 537 (1971); Carmichael v. Reitz, 17 Cal.App.3d 958, 95 Cal.Rptr. 381 (1971).)

Thus, the appellant's newly presented theory may be permitted, because it involves only a question of law and is based entirely upon the facts appearing in the record.

To support his contention, plaintiff primarily relies upon the case of Helling v. Carey (1974) 83 Wash.2d 514, 519 P.2d 981. There the plaintiff sued an ophthalmologist for malpractice alleging that, because of the defendant's negligent failure to diagnose and treat her for open-angle glaucoma, she suffered permanent visual damage. The plaintiff in that case had been to see the defendant numerous times over a period of several years complaining about eye problems. The record indicates that the plaintiff had been in to see the defendant with complaints about her eyes in September 1963, October 1963, February 1967, September 1967, October 1967, May 1968, July 1968, August 1968, September 1968 and finally in October 1968. It was not until October 1968 that the glaucoma test finally was given. At trial the defendant testified that throughout this entire period the plaintiff had detectable glaucoma.

The Supreme Court of Washington held that the defendants were negligent as a matter of law for failing to administer a simple, safe and inexpensive glaucoma test that was highly diagnostic of the potentially serious illness. This was held despite the uncontradicted expert testimony that it was the universal practice of ophthalmologists not to administer the test to persons under forty, because there was less than a 1/25,000 incidence that such persons would have the disease. The court stated, however, 'The precaution of giving this test to detect the incidence of glaucoma to patients under forty years of age is so imperative that irrespective of its disregard by the standards of the ophthalmology profession, it is the duty of the courts to say what is required to protect patients under forty from the damaging results of glaucoma.' Thus, negligence was found here as a matter of law.

The court also noted that glaucoma has no symptoms, and, in the absence of a pressure test, it is often undetectable until the damage has become extensive and irreversible.

Thus, the Washington court found that the proper standard of care to be followed by ophthalmologists was not that which is usually done, but that which ought to be done. The court cited two cases to support its position.

In Texas & Pacific Ry. Co. v. Behymer (1903) 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905, Mr. Justice Holmes stated for the majority that, 'What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.' In that case the court stated that, just because it was the custom to jerk railroad cars, it was negligent to do so when everyone involved knew that the plaintiff-brakeman was standing on the ice-covered rooftop of one of the cars.

In the second cited case, The T.J. Hooper (2 Cir. 1932) 60 F.2d 737, 740, Justice L. Hand stated that, '(I)n most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; that even their universal disregard will not excuse their omission.' This case dealt with the custom not to carry radio sets on barges.

As the plaintiff cites from Prosser on Torts (4th ed.1971) section 33, pages 167--168, '. . . every custom is not conclusive merely because it is a custom.'

We fully agree with the plaintiff's contentions on the connection between custom and due care. However, we fail to see how this leads to the conclusion that, because a custom may be negligent, such negligence can be found as a matter of law. Neither of the Washington court's two supporting cases stands for this proposition. They only support the idea that custom is not the absolute standard to be applied in determining the issue of negligence. Furthermore, these cases only dealt with customs associated with business and industry and not with the medical professions.

In response to the appellant's allegation, the respondent properly contends that the general rule concerning medical negligence is that such liability may not be found as a matter of law. In most instances there is the need for expert testimony on the subject of just what constitutes medical negligence, because the average judge or juror does not possess the necessary level of...