Davis v. Memorial Hospital

• Decision Date: 30 March 1962
• Citation: 20 Cal.Rptr. 688
• Court: California Court of Appeals
• Parties: Tony DAVIS, Plaintiff and Appellant, v. MEMORIAL HOSPITAL, Defendant and Respondent. Civ. 10134.

Page 688

20 Cal.Rptr. 688

Tony DAVIS, Plaintiff and Appellant, v.MEMORIAL HOSPITAL, Defendant and Respondent.

Civ. 10134.

District Court of Appeal, Third District, California.

March 30, 1962.

Hearing Granted May 23, 1962.

Opinion vacated 26 Cal.Rptr. 633. 376 P.2d 561.

Halpin, Halpin & Leep, by Jack Halpin, Redding, for appellant.

Grayson Price, Chico, Newton & Braun, Redding, for respondent.

PIERCE, Justice.

This is an appeal by plaintiff from the judgment entered upon a jury verdict in favor of defendant hospital.The question here involved is whether the trial court committed prejudicial error in refusing to give (in stated sequence) BAJI Instructions 206-F and 206, offered as plaintiff's InstructionsNos. 37 and 38.¹

We have concluded that under the facts of the casethe court's refusal to give the instructions was proper because (1) the doctrine of res ipsa loquitur is inapplicable, and (2) the form of the offered instructions was improper in any event.

The facts are:

In January, 1959, plaintiff, 64 years of age, had been having prostate trouble.He also suffered from varicose veins.He had consulted.Dr. Charles of Redding for both problems.For the prostate complaint, Dr. Charles had administered rectal digital treatments, massaging the wall of the rectum.The last treatment had been given January 5, 1959, a day before the event next to be described.

Dr. Charles had advised surgery to cure the varicose veins.On January 6, 1959, plaintiff entered defendant hospital and was given the usual pre-surgical enema, by a nurse, or nurse's aid.This was given by insertion in the rectum of a soft, pliable plastic or rubber tube, well lubricated.Plaintiff testified that insertion of the tube was painful and accompanied by a sensation variously described as 'cutting,''scratching,' and 'tearing.'Plaintiff testified that his rectum kept stinging and burning all night.He did not, however, complain to Dr. Charles and there is no entry of such an occurrence on the hospital chart.

The varicose vein surgery was performed next day, January 7, 1959, without incident, and plaintiff, on the following day, left the Redding hospital and returned to his home in Red Bluff.

On January 9th, he experienced great pain and saw Dr. Otho Wood of Red Bluff, who examined him that day, again on the following morning, and ordered him to a Res Bluff hospital.Examination revealed a perirectal abscess.Because of the patient's pain, Dr. Wood could not look into the rectum to determine the source of the abscess, and he never did determine such source by visual examination.Plaintiff was treated for the abscess by Doctors Wood and Nash, treatment including two incisions.He left the hospital on February 9th.

Sometime thereafter plaintiff experienced a loss of bowel control.In the meantime a fistula had developed in his anus.On May 14, 1959, this suit was filed against defendant hospital.It was alleged in the complaint that defendant'so carelessly, negligently and unskillfully administered an enema * * * so as to cause * * * great bodily injury, including * * * a tear of his colon.'

This allegation was undoubtedly predicated upon an opinion expressed by Dr. Wood during his treatment of the abscess and fistula.Dr. Wood testified as plaintiff's witness at the trial.He said that, based upon the history given him by the patient, he felt there had been some trauma of the mucous membrane of the rectum ('rectal mucosa') caused by the enema tube.The doctor, as stated above, had not made any examination of the plaintiff which disclosed a tearing or breaking of the mucosa and was not certain that there was such a break or tear, but deduced it from the existence of the infection.

During the spring of 1959plaintiff moved to Marysville.Still suffering from the fistula (and from lack of bowel control), he consulted a Marysville physician, Dr. Lindsay, who referred him to a Sacramento proctologist, Dr. Bunny.

On July 20, 1959, plaintiff visted Dr. Bunny.He told the doctor he was suing the hospital for the abscess and fistula which he declared had been caused by the giving of the enema.The doctor made a thorough examination, including a sigmoid examination which permitted the doctor to see the rectal tract.He found no evidence of any tearing of the rectal mucosa which, he said, would have been revealed in scar tissue had there been a trauma of any magnitude.He advised plaintiff the abscess and fistula had not been caused by the enema; that the infection was a cryptitis preexistent when plaintiff went to the hospital.This doctor's opinion and other medical opinions will be discussed hereinafter.This surgery was actually performed later by Dr. Wood in September and was successful.

Turning now to a discussion of the law, the conditions which must exist before the trier of fact may apply the inference of negligence, which we know as the doctrine of res ipsa loquitur, have become well understood by frequent reiteration.These conditions are: '[T]hat the accident, or injury, must be of a kind which ordinarily does not occur in the absence of someone's negligence; that it must be caused by an agency or instrumentality in the control of the defendant; and that it must not have been due to any voluntary action or contribution on the part of plaintiff.'(Seneris v. Haas, 45 Cal.2d 811, at page 823, 291 P.2d 915, at page 922, 53 A.L.R.2d 124;Prosser on Torts, 2dEd., p. 201.)

Plaintiff, contending his case fulfills those conditions, relies heavily upon Wolfsmith v. Marsh, 51 Cal.2d 832, 337 P.2d 70, where the defendant doctor injected sodium pentothal into the inner aspect of the plaintiff's knee.Plaintiff, conscious, experienced great pain, but could not complain because of a rubber apparatus over her mouth.The pain continued and was subsequently diagnosed as having resulted from the insertion of the hypodermic needle by defendant into a varicose vein, a proven improper medical practice.The trial court refused an instruction or res ipsa loquitur.The Supreme Court, reversing, ruled the instruction should have been given.It held that determination of whether an accident is more probably the result of negligence can be through opinions expressed by medical experts, and is not limited to matters of common lay knowledge; but, it said, the fact that hypodermic injections do not ordinarily cause trouble unless unskillfully done or there is something wrong with the serum WAS a matter of common knowledge among laymen.The court also held that plaintiff having produced evidence from which the jury could draw the conclusion that negligence was the most likely explanation of the accident it was not proper for the trial court to draw a contrary inference.

Plaintiff reasons from this case that, if it can be said the giving of an injection does not ordinarily cause trouble unless someone has been negligent, so too it can be said that the giving of an enema will not ordinarily cause an abscess (or other infection) if it is given properly.The vice of this reasoning is that it begs the question.It assumes that the giving of the enema caused the abscess; in other words, it assumes the enema was the 'accident.'But the question here is: WAS the abscess, most probably, caused by the enema?

Borrowing the language of Professor Wex S. Malone(in Contrasting Images of Torts--The Judicial Personality of Justice Traynor, 13 Stanford Law Review, p. 779, at p. 797): 'The ultimate question * * * is whether the accident [or injury], when considered with its attendant circumstances, suggests the probability that its occurrence is more likely attributable to acts or omissions chargeable to the defendant, than to some extraneous source.'(Emphasis ours.)

In an article entitled 'The California Malpractice Controversy' in 9 Stanford Law Review, page 731, at page 741, it is stated:

'The doctrine of res ipsa loquitur should not apply unless the probability of negligence is greater than any other possible cause of a plaintiff's injury.'(See alsoHernandez v. Southern California Gas Co., 213 Cal. 384, 388, 2 P.2d 360;Olson v. Whitthorne & Swan, 203 Cal. 206, 208, 263 P. 518, 58 A.L.R. 129;Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 133-134, 206 P.2d 653;Prosser, Res Ipsa Loquitur in Calif., 37 Cal.L.Rev. 183, 196-198.)

There is evidence in this case that a properly given enema will not cause an abscess.And, under the rules stated above, if there is substantial and credible evidence from which reasonable men (to-wit, the jury) could determine that the abscess was more probably due to the insertion of the enema tube than any other cause, then a proper instruction on res ipsa loquitur should have been given.

In stating the evidence in the record we must do so, resolving all reasonable inferences in plaintiff's favor.(Wolfsmith v. Marsh, supra, at p. 833, 337 P.2d 70.)There are other rules, however, which also must be observed.All evidence here, pertinent to the inquiry of causation, involves opinions of medical experts who examined or treated plaintiff, or both.A study of the record also shows that in the case of every one of these doctors the opinion testified to was predicated upon a hypothesis assumed either in the question asked or in a history given the doctor by the patient as facts learned by personal observation.(People v. Brown, 49 Cal.2d 577, 585, 320 P.2d 5.)An expert's opinion is no better than the reasons given for it and assumption of facts contrary to the proof destroys the opinion.(Sears, Roebuck & Co. v. Walls, 178 Cal.App.2d 284, 289, 2 Cal.Rptr. 847.)When facts on which a hypothesis is based fall, the answer falls also.(19 Cal.Jur.2d, sec. 300, pp. 27-28.)'If the premises fail, the conclusion must be disregarded.'(2 Wigmore on Evidence, 3d Ed., sec. 680, p. 799.See alsoBarnett v. Atchison, etc., Ry. Co., 99 Cal.App. 310, 317, 278 P. 443;Estate of Powers, 81 Cal.App.2d 480, 485-486, 184 P.2d 319.)Could a...