Costa v. Regents of University of Cal.

• Citation: 254 P.2d 85,116 Cal.App.2d 445
• Court: California Court of Appeals
• Decision Date: 03 March 1953
• Parties: COSTA v. REGENTS OF UNIVERSITY OF CALIFORNIA et al. Civ. 14776.

Page 85

254 P.2d 85

116 Cal.App.2d 445

COSTA v. REGENTS OF UNIVERSITY OF CALIFORNIA et al.

Civ. 14776.

District Court of Appeal, First District, Division 2, California.

March 3, 1953.

Rehearing Denied April 2, 1953.

Hearing Denied April 30, 1953.

Ernest I. Spiegl, San Francisco, Belli, Ashe & Pinney, San Francisco, for appellant.

Dana, Bledsoe & Smith, San Francisco, for respondents.

NOURSE, Presiding Justice.

This cause was before us on a prior occasion in which we entered judgment of affirmance, 247 P.2d 21. Thereafter the Supreme Court filed its opinion in Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344, treating the subject of the res ipsa loquitur doctrine. For that reason this court granted a rehearing for the express purpose of having further argument on the question of the application of that doctrine to this case.

In a reexamination of the record in the light of the Zentz case we are satisfied that the judgment must be reversed on that ground. All the other points raised have been properly treated in the former opinion which we now quote omitting the matter therein relating to res ipsa locquitur doctrine.

'Appellant brought a malpractice suit against the Regents of the University of California in whose University of California Hospital in San Francisco, herein further called U. C. Hospital, he received treatment and also against five individual defendants. His action against three of the individual defendants was nonsuited; they are not parties to this appeal. The case against the Regents and against Bertram V. A. Low-Beer and Nathan Spishakoff, two of the physicians who treated him, was tried to a jury which failed to arrive at a verdict and was discharged. On the motion of said defendants, whose motion for a directed verdict had been denied, judgment was entered in their favor under section 630, Code Civ.Proc., and plaintiff appeals. The court held that said appeal was timely filed. Costa v. Regents of University of Cal., 103 Cal.App.2d 491, 495, 229 P.2d 867.

'Plaintiff, a seasonal cannery worker living at Monterey, California, permanently partially disabled by a spinal injury received in the army, on July 16, 1945 consulted a local physician, Dr. Gorham, about a sore on his tongue which he said he had had for three or four months. On July 27 a biopsy was taken and on August 1, 1945 the report received that it was an epidermoid carcinoma. Dr. Gorham arranged for him to go to the outpatient department of the U. C. Hospital for treatment. Plaintiff was first seen at the hospital on August 22, 1945 and it was found that, over and above the primary lesion under the tongue, nodes or a nodular mass under the chin were involved either by metastasis or direct extension. X-ray treatment was decided upon to be followed by operation on the neck after the primary lesion would be controlled. Plaintiff received the X-ray treatment as an outpatient in the Department of Radiology of which defendant Dr. Low-Beer was the head and defendant Dr. Spishakoff was an assistant. After, on the request of said department, six lower front teeth of plaintiff had been extracted in the Department of Dental Surgery, the intra oral X-ray treatment started on August 27, 1945. From that date until September 21, 1945 plaintiff received 8 intra oral treatments followed by 12 submental treatments (treatments from the outside under the chin). The treatments caused burning of the skin of the neck and inflammation of the mucous membrane of the mouth, which healed during October, 1945. At the end of the X-ray treatment plaintiff, who had during the treatment taken temporary living quarters in San Francisco, returned to Monterey and came up from there to the U. C. Hospital from time to time in accordance with appointments made. On November 23, 1945 plaintiff was put on the waiting list for neck surgery but the transfer record in relation to it was misplaced for six months and plaintiff not notified that the operation could take place until May, 1946 at which time plaintiff declined in accordance with the advice of defendant Low-Beer that the operation was no longer necessary. In the meantime the lesion, which had been regularly followed in the Radiology Department, had healed satisfactorily without signs of recurrence or metastasis. However in the middle of January, 1946 there had developed pain in plaintiff's teeth and a sinus in his gum which, after the taking of X-ray pictures which did not show appreciable bony involvement, was diagnosed as probably an early radiation necrosis, which had to be watched. For the moment only penicillin lozenges were prescribed. When plaintiff was seen on March 8, 1946 the necrotic area in the gum had increased. After consultation with a doctor of the Dental Department and the president of the Visible Tumor Clinic an attitude of further watching and waiting, with mouth hygiene to be given by the dental clinic, was decided upon. During April, May and June, 1946 plaintiff was well enough to resume his work as a cannery worker. In May he wrote a letter to defendant Dr. Spishakoff that he felt O. K. except for some sore teeth. He quit work again in June, 1946 and testified that he did so because of the deteriorating condition in his mouth. On June 16, 1946 plaintiff when seen by defendant Low-Beer believed that the area of necrosis on the lower alveolar ridge had become somewhat larger but on June 25 a slight improvement was found and on July 9 and August 26, 1946 little or no change in the necrotic areas was noted. In a letter to whom it may concern given by Dr. Hill, an assistant in the Department of Radiology to plaintiff on the last mentioned date, the statement was made that plaintiff at that time had areas of osteo-radio necrosis of the lower jaw. An appointment was made for plaintiff to return in 4 weeks for the taking of films of the jaw, but plaintiff returned on December 10, 1946 at which time the exposed areas of the mandible were found to have considerably extended. X-rays of the mandible were taken the same day to determine the extent of the involvement and an appointment made for plaintiff to come back in a month. The roentgenologist's report could not decide whether the lesion shown was caused by osteo-radio necrosis or infiltration of carcinoma and advised further study. However in the beginning of January, 1947 painful swelling under the chin and pain in the lower jaw developed which new development was reported to Dr. Low-Beer by plaintiff's landlady, later his wife, in a letter dated January 3, 1947. When defendant Low-Beer saw plaintiff on January 8, 1947 he thought it looked like osteomyelitis. Further X-ray films were ordered and the patient presented in the Visible Tumor conference. It was decided that plaintiff, as treatment for acute osteomyelitis, required hospitalization, systemic penicillin treatment and mouth hygiene but no surgical intervention at that time. However plaintiff was told that no bed was available for him at the U. C. Hospital but that steps could be taken for his hospitalization in the City annd County Hospital. Plaintiff preferred under those circumstances to be hospitalized nearer to his home and he stated his desire to be treated in the Penninsula Community Hospital at Carmel by Dr. Swengel. Accordingly defendant Low-Beer wrote under date of January 10, 1947 a letter to Dr. Swengel describing in detail diagnosis and treatment of the cancer in 1945, the appearance and treatment of breakdown of alveolar mucosa and laying free of the bone in the alveolar region in 1946 and the recent appearance of acute osteomyelitis with as advised treatment: 'Hospitalization of patient, systemic penicillin, and mouth hygiene, and no surgical intervention at the present time.' The letter was given to plaintiff sealed (his landlady had requested that plaintiff should be kept unaware of the malignant character of his illness, which attitude was expressly approved by plaintiff in these proceedings) and was handed over by him to Dr. Swengel without having been read by plaintiff. It was stipulated when the letter was received in evidence that the letter could not prove knowledge of its content by plaintiff. Before plaintiff left for Monterey an appointment was made for him to come back after the hospital treatment. He was hospitalized the same day (January 10, 1947) in the Peninsula Community Hospital at Carmel, treated by Dr. Swengel with systemic penicillin mouth hygiene and anodyns and discharged on January 22, 1947 as improved. He left the hospital on foot. His temperature was normal after having been somewhat too high the first two days of the hospitalization. Plaintiff did not return as a patient to the U. C. Hospital and defendants thereafter. He remained in Monterey under treatment of Dr. Swengel who discontinued the systemic penicillin treatment and also consulted once a Dr. Cleves, a general practitioner, who advised him to spray his mouth with penicillin. During the year 1947 plaintiff's condition deteriorated greatly. When on December 22 of that year he was admitted as a veteran to the U. S. Naval Hospital at Oak Knoll he had developed large collar-like submandular masses with fistulas draining to the outside, a large exposed area of the mandible was necrotic, the mouth in a foul condition, his general condition emaciated from poor nutrition due to inability to eat because of the infection of the mandible. He was treated for radiation necrosis, osteomyelitis and the general condition described with systemic penicillin, sulfadiazine, opening of the draining areas under the mandible, mouth hygiene, vitamines intramuscular, calcium tablets and special diet. A splint in the mouth to cover the denuded bone was tried but plaintiff could not continue to wear it because of the tenderness of the gums. Plaintiff's general condition improved and in January, 1948 he was able again to be out of bed, but the osteomyelitis extended backward toward the...