Deckard v. Sorenson
| Decision Date | 21 January 1960 |
| Citation | 177 Cal.App.2d 305,2 Cal.Rptr. 121 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Sally DECKARD, Plaintiff and Appellant, v. Roy SORENSON, M.D., et al., Defendant and Respondent. Civ. 6270. |
Ben M. Shera, Los Angeles, for appellant.
Everett Swing, San Bernardino, for respondent.
Plaintiff brought this action against the defendant, a physician and surgeon, to recover damages for alleged malpractice. She alleged in her complaint in substance that she had received injuries as the result of an automobile accident; that the defendant treated her in his capacity as a physician; that he negligently failed to properly diagnose her injuries and applied a cast to her left leg when in fact she was suffering from a fracture of the right kneecap. It is claimed that as a result of such negligent diagnosis and treatment she suffered damage. At the close of plaintiff's evidence, the Court granted a nonsuit upon the motion of the defendant, and from a judgment thereon this appeal is taken.
The plaintiff and appellant claims on this appeal that the evidence was such as established the negligence of the defendant as a matter of law; that the rule res ipsa loquitur was applicable, and that therefore the court erred in granting the motion.
This court has carefully reviewed the record, bearing in mind that upon appeal from the granting of a nonsuit every inference must be indulged in support of plaintiff's cause of action and against the party in whose favor nonsuit was granted. It appears from the evidence that plaintiff was involved in an automobile accident on November 9, 1957, and that she was taken to a hospital and the defendant, who had theretofore treated her, was called. It appeared at that time that although the plaintiff had received painful bruises and abrasions, she had received no serious injury, and the defendant advised her to go home and call him if anything serious developed. He advised her that if she experienced any difficulty, X-rays might be taken. She returned to the doctor's office on November 19, 1957, ten days later. At that time her left knee and leg were swollen and discolored and were very painful. She had some pain in her right leg, but there was no external evidence except a small cut on the knee, which was apparently healing. A number of X-rays were taken, including X-rays of both legs. The X-rays of the right disclosed a small lineal fracture of about one-fourth of an inch of the patella. There was no displacement.
The doctor assumed, and stated to the plaintiff, that the fracture was in the left knee, which gave external evidence of injury, and placed the left leg in a cast. This cast was worn for approximately a month. In the meantime, according to plaintiff's testimony, her right leg became somewhat more painful, but when the cast was removed it apparently was relieved. The apparent explanation would be that with the cast on the left knee she was making considerable more use of the right leg.
There were several trips to the doctor's office, culminating in an examination on January 2, 1958, at which time X-rays of both legs were taken. Upon an examination of these X-rays, the doctor told plaintiff that the fracture was in her right knee and that he did not know how the mistake had been made. He told her that apparently the knee was progressing favorably and would probably be all right. He suggested that some bandage be applied to the right knee, but plaintiff declined and left his office. A few days later defendant came to plaintiff's house and told her that he felt that she should have some protection on the right knee to prevent any harm from its being bumped or from any other accident, and asked permission to apply a splint. This permission was granted and the splint applied, but plaintiff and her husband thereupon told the doctor that they had made arrangements to place plaintiff in care of another physician and that they were terminating his services. The plaintiff testified that at the time of the trial, approximately a year later, she experienced stiffness of her right knee and some limitation of motion.
The defendant doctor was called to the stand under section 2055 of the Code of Civil Procedure and examined as an adverse witness. His testimony as to essential facts agreed with that of the plaintiff. He admitted that at the time he applied the cast he assumed that the small lineal fracture was in the...
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