Inouye v. Black

• Decision Date: 04 November 1965
• Citation: 47 Cal.Rptr. 313,238 Cal.App.2d 31,14 A.L.R.3d 961
• Court: California Court of Appeals Court of Appeals
• Parties: , 14 A.L.R.3d 961 Ben INOUYE, Plaintiff and Appellant, v. Howard A. BLACK, Defendant and Respondent. Civ. 11038.

Page 313

47 Cal.Rptr. 313

238 Cal.App.2d 31, 14 A.L.R.3d 961

Ben INOUYE, Plaintiff and Appellant, v. Howard A. BLACK, Defendant and Respondent.

Civ. 11038.

District Court of Appeal, Third District, California.

Nov. 4, 1965.

Colley & McGhee, Sacramento, for appellant.

Hardin, Fletcher, Cook & Hayes, by Cyril Viadro, San Francisco, for respondent.

FRIEDMAN, Justice.

Plaintiff had been in an automobile accident. There had been a tearing of ligaments in his neck, causing a lack of stability between the first and second cervical vertebrae. Unless corrected, the condition made him vulnerable to paralysis. In April 1960 he underwent surgery performed by defendant, a neurosurgeon. Defendant wired together the vertebrae, using two pieces of stainless steel wire of a thickness designated as 'No. 18.' The wire, under constant tension, was expected to break ultimately but would permit the ligaments to heal while it held the bones together. Although broken, the wire would remain in the body and was not expected to cause any physical damage. Two years after the operation, x-rays revealed that the wire had broken into relatively small fragments, an event not expected by the defendant. Later x-rays showed that one fragment, approximately an inch long, had migrated downward to the lower spine, lodging between the inner surface of a vertebra and the dura or sheath encasing the spinal cord. The other fragments moved somewhat but remained in the general cervical area. Surgical removal of some of these wire fragments would be necessary. Plaintiff brought this damage suit, alleging medical malpractice.

The action went to trial before a jury. At the close of plaintiff's case, defendant's counsel made a nonsuit motion which the trial court granted. Plaintiff appeals from the ensuing judgment, contending primarily that the res ipsa loquitur rule required the case to go to the jury.

Three witnesses testified. Defendant, called as an adverse witness, described the surgical procedure. The wire, of a kind customarily used in such operations, was supplied by the hospital in which the surgery occurred. As customary, a nurse handed it to the defendant during the surgery. Before applying the wire, he tested it manually and visually to see that it was free from kinks, notches or other signs of weakness. X-rays taken two years after the surgery revealed that the wire had fragmented. One piece had two breaks in it, the other had three. Although this condition was unexpected, defendant did not consider it a source of physical danger.

Plaintiff testified regarding the pains ascribed to the wire fragments. The third witness called by plaintiff was Dr. Holland, a neurosurgeon. He had examined x-rays taken shortly after the surgery. In his opinion the No. 18 wire was of the proper thickness and had been tied in accordance with good neurosurgical practice. According to standard practice, he testified, the wire would be cut from a spool by a surgical nurse and handed to the surgeon, who would examine it visually and manually for nicks or kinks before applying it to the patient. On the witness stand both Dr. Holland and defendant were asked to assume (a) that such wire was installed with standard surgical skill and (b) inspected for defects. On these assumptions both doctors testified that the breakage of the wire into migrating fragments was unexpected. Neither witness had seen, heard or read of such an occurrence.

In a medical malpractice action the defendant is held to the standard of skill or care prevailing in the medical profession in the locality. Briefly stated, the res ipsa loquitur doctrine creates an inference of negligence where, in the light of past experience, (a) the accident was probably the result of someone's negligence and (b) the defendant is probably the responsible person. (Fowler v. Seaton, 61 Cal.2d 681, 686, 39 Cal.Rptr. 881, 394 P.2d 697; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 446-447, 247 P.2d 344.) The plaintiff need not produce evidence excluding all possible causes other than the defendant's negligence. When the defendant's negligence is one of several possible causes reasonably inferable from the evidence, the choice or rejection of that particular inference must be left to the jury and cannot be assumed by the trial judge. (Davis v. Memorial Hospital, 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 376 P.2d 561; Seneris v. Haas, 45 Cal.2d 811, 826-827, 291 P.2d 915, 53 A.L.R.2d 124; Mondot v. Vallejo General Hospital, 152 Cal.App.2d 588, 593, 313 P.2d 78.) Such a choice of inferences may be called 'conditional res ipsa loquitur.' (See Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 166, 41 Cal.Rptr. 577, 397 P.2d 161.)

In considering a nonsuit motion the trial judge must view the evidence in the light most favorable to the plaintiff. Thus, where there is any evidence to support the application of res ipsa loquitur, the trial court must deny a nonsuit motion. (Greening v. General Air-Conditioning Corp., 233 A.C.A. 657, 665, 43 Cal.Rptr. 662; Reynolds v. Natural Gas Equipment, Inc., 184 Cal.App.2d 724, 735-736, 7 Cal.Rptr. 879.)

To determine whether there is a reasonable probability of negligence causation, the courts rely on 'the light of past experience,' which in turn may be drawn from expert testimony or common knowledge. The more esoteric kinds of medical causation demand expert testimony; others are within the reach of lay experience. (Compare Davis v. Memorial Hospital, supra, 58 Cal.2d at pp. 817-818, 26 Cal.Rptr. 633, 376 P.2d 561, and Siverson v. Weber, 57 Cal.2d 834, 837, 22 Cal.Rptr. 337, 372 P.2d 97.) Laymen should not be barred from inferring the probable negligence of someone when surgery leaves a residual of dangerous, migrating pieces of metal in the human body. The evidence thus supplies the first precondition of res ipsa loquitur, a reasonable probability of negligence causation by someone. Nevertheless, the finger of probable fault must be pointed at the defendant before the court, not at thin air. ¹ The pivotal inquiry here is whether plaintiff's evidence meets the second condition:...