Hundley v. St. Francis Hospital

• Decision Date: 03 July 1958
• Citation: 327 P.2d 131,80 A.L.R.2d 360,161 Cal.App.2d 800
• Court: California Court of Appeals Court of Appeals
• Parties: , 80 A.L.R.2d 360 Emily HUNDLEY, Plaintiff and Respondent, v. ST. FRANCIS HOSPITAL et al., Defendants, Frederick G. Niemand, Defendant and Appellant. Civ. 17464.

Page 131

327 P.2d 131

161 Cal.App.2d 800, 80 A.L.R.2d 360

Emily HUNDLEY, Plaintiff and Respondent, v. ST. FRANCIS HOSPITAL et al., Defendants Frederick G. Niemand, Defendant and Appellant.

Civ. 17464.

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

July 3, 1958.

Rehearing Denied Aug. 1, 1958.

Hearing Denied Aug. 28, 1958.

Peart, Baraty & Hassard, Alan L. Bonnington, San Francisco, for appellant.

Andrew J. Eyman, San Francisco, Fitz-Gerald Ames, Sr., San Francisco, George Olshausen, San Francisco, for respondent.

DRAPER, Justice.

The complaint upon which this action went to trial alleged that defendant doctor 'without the knowledge and consent' of plaintiff operated upon and treated her in 'an unnecessary, careless and negligent manner.' The evidence makes clear that plaintiff relied upon the claimed 'negligent and careless' manner of operation, i. e., malpractice, as well as upon the allegation that the surgery was performed without consent and was unnecessary. In this latter respect, the basis of the claim was technically battery. Valdez v. Percy, 35 Cal.App.2d 485, 491, 96 P.2d 142. It is clear that there was a failure to state separately two causes of action, but since no demurrer upon this ground was filed the point need not be considered here. The action was consolidated for trial with one against a hospital. Jury verdict was in favor of the hospital, and plaintiff does not appeal. In the action against the doctor, verdict was in favor of plaintiff, and the doctor appeals from judgment entered upon that verdict.

The sole expert called by plaintiff was a doctor of osteopathy. He testified that he is a graduate of the College of Osteopathic Physicians and Surgeons, that he has performed many operations of the type here involved, that the standards of skill and treatment by doctors of medicine are 'identical' with such standards of osteopaths, and that he is familiar with such standards in the City and County of San Francisco. Appellant contends that this witness was not qualified as an expert, and that it was error to permit him to testify as such. It has been noted that the Board of Osteopathic Examiners issues licenses which 'authorize the holders to practice medicine and surgery the same as licensed physicians and surgeons.' Oosterveen v. Board of Medical Examiners, 112 Cal.App.2d 201, 202-203, 246 P.2d 136, 138. In any event, 'the qualification of an expert witness is a question for the sound discretion of the trial court and its ruling will not be disturbed upon appeal unless a clear abuse of it is shown.' Sinz v. Owens, 33 Cal.2d 749, 755-756, 205 P.2d 3, 6, 8 A.L.R.2d 757; see, also, Huffman v. Lindquist, 37 Cal.2d 465, 476, 234 P.2d 34, 29 A.L.R.2d 485. No such abuse of discretion appears here.

Appellant contends that the evidence is insufficient to support the verdict. It is undisputed that the condition requiring surgery was a dropping of the uterus, and there is evidence also of a pre-operative diagnosis of rectocele and cystocele, The operation removed the body or fundus of the uterus, the Fallopian tube and ovary (one tube and ovary had previously been removed). There is evidence that plaintiff did not consent to these excisions. There is uncontradicted evidence that pathological examination of the excised tissues revealed them to be normal. There is evidence from which the jury could find that it is not accepted surgical practice to remove such organs when there are no pathological abnormalities. Defendant offered testimony that clinical, as distinguished from pathological, findings could warrant such removal. However, the evidence of two medical witnesses is subject to a contrary view and, still further, the jury could view the testimony of appellant's witnesses as being insufficient to show the claimed clinical necessity here. There is evidence that after the surgery an opening, or fistula, existed between rectum and vagina, and that gas and fecal matter escaped through the vagina. Appellant apparently argues that this fistula was caused by improper administration of an enema, shortly after the operation, by a hospital nurse. But this was the basis of the claim against the hospital. The jury found in favor of the hospital and against appellant. The symptoms of this fistula appeared shortly after surgery, and the evidence warrants the inference by the jury that it resulted from the surgery. The original hospital records prepared by the operating surgeons show a conflict between the diagnoses (admitting and post-surgery) and the surgery performed. This conflict was resolved in a 'corrected copy' of the report later filed. Following the May operation, further surgery was required in August. There is testimony that appellant told respondent that she should not bear the expense of the second hospitalization, and that he would arrange that she need not pay. We have reviewed the record with care. Appellant's argument is based in part upon his unwillingness to accept the views of an expert who is not a doctor of medicine. As we have pointed out, the trial court acted within its discretion in determining that this doctor of osteopathy is qualified as an expert. We have concluded that the testimony as a whole supports the verdict.

Appellant asserts prejudicial error in the admission of evidence relating to his use of narcotics. The operations upon respondent were performed in 1949. The case did not go to trial until early 1956, by which time appellant was confined in a state hospital, and was unable to appear. In mid-1955, hearing upon revocation of appellant's license to practice medicine had been held. Portions of the doctor's testimony before the Board of Medical Examiners were read to the jury at trial of the case at bar. Before the board, he admitted having used narcotics, that 'I realized it was more than I should have' and that 'in the end of 1947 or the beginning of 1948' he shifted to another narcotic, methadon. After introducing expert testimony that excessive use of narcotics would adversely affect surgical stability, reflexes and judgment, respondent offered evidence intended to show excessive use of narcotics after 1949, the date of the surgery here in issue. Some of this testimony concerned dates as late as 1955. Part of it consisted of evidence of admissions by appellant. Respondent's counsel asked questions relating to records of pharmacists, apparently intended to show that prescriptions nominally for patients in fact were delivered to the doctor. The great bulk of this testimony was objected to by appellant and in substantial part the objections were sustained. In view of the testimony that protracted use of methadon would adversely affect a surgeon's ability to operate, it seems clear that evidence which would show such a condition in appellant at the time of the surgery here in issue would be admissible. Evidence introduced did show excessive use more than a year before this surgery. Some evidence of excessive use within a reasonable period after the surgery would, on a like basis, be admissible as tending to show that the surgeon's use of narcotics continued through the period of surgical and medical treatment. Evidence of use or addiction at periods long after the operation were not relevant, and the admission thereof was error. Similarly, the attempt to question as to even later periods, and the questions as to delivery to the doctor's office of prescriptions for patients were, in the light of the complete failure to connect them with the surgery here in issue, improper. However, motions for mistrial were denied, and the matter was again before the trial court on motion for new trial. While a mere reading of the...