Johnston v. Brother

• Decision Date: 23 March 1961
• Citation: 12 Cal.Rptr. 23,190 Cal.App.2d 464
• Parties: Wilbur JOHNSTON, Plaintiff and Appellant, v. Paul BROTHER, Defendant and Respondent. Civ. 6088.
• Court: California Court of Appeals Court of Appeals

Page 23

12 Cal.Rptr. 23

190 Cal.App.2d 464

Wilbur JOHNSTON, Plaintiff and Appellant, v. Paul BROTHER, Defendant and Respondent.

Civ. 6088.

District Court of Appeal, Fourth District, California.

March 23, 1961.

George W. Hauer, Janjigian & Mardikian and James C. Janjigian, Fresno, for appellant.

Peart, Baraty & Hassard, Alan L. Bonnington and Ricky J. Curotto, San Francisco, Avery, Meux & Gallagher, and John J. Gallagher, Fresno, for respondent.

SHEPARD, Justice.

This is an appeal by plaintiff from a judgment for defendant in an action for damages for alleged malpractice.

The gravamen of plaintiff's complaint lies in his allegation that on or about June 29, 1957, he employed defendant to treat him for an illness and that on said date defendant so carelessly and negligently administered treatment as to cause serious illness and permanent injury to plaintiff. In general essence, this is repeated in the pretrial statement of facts submitted by him to the trial court. In his opening statement to the court and jury, plaintiff's attorney again made clear that the negligence complained of was the injection of penicillin on Saturday morning, June 29, 1957, without obtaining adequate history, and that the penicillin caused illness and permanent impairment of health, of which plaintiff complains.

The pertinent facts, in general substance, are as follows: Plaintiff had already been under treatment by defendant for some weeks on account of a genito-urinary infection with use of sulfa, streptomycin and prostatic massage as treatment, when, on June 29, 1957, he appeared at defendant's office in the morning with inflamed throat and eyes. Defendant diagnosed plaintiff's malady as acute pharyngitis and acute conjunctivitis. Believing the cause to be some form of pathogenic streptococci, defendant asked plaintiff if he was allergic to penicillin. Plaintiff answered that he didn't know if he had ever had any penicillin, and may also have stated that his children did have such allergy. Thereupon, defendant injected intravenously a treatment of Bicillin (a pharmaceutical trade name for a preparation of penicillin). That afternoon plaintiff experienced some itching and discomfort. Sunday his condition became worse, with swelling about the face. Monday he was hospitalized in serious condition. He went through a critical stage and finally recovered, but suffered loss of the sight of one eye and serious impairment of vision of the other.

There was no essential conflict on the fact of plaintiff's illness following June 29, 1957. During the trial the 'condition about which he complained' was repeatedly identified as the illness and permanent disability which occurred following June 29. Thus, the basic contest throughout the entire pleading, pretrial and trial stages of the case revolved around the dispute as to whether or not the penicillin treatment was the cause of the illness which occurred after June 29, 1957, and, if it was, whether or not defendant's preparatory inquiry as to plaintiff's history of allergy and defendant's use of penicillin under the circumstances reasonably conformed to the standards of diagnosis and treatment ordinarily practiced by reputable physicians in good standing in the community of Fresno at that time.

Defendant produced substantial evidence that at the time the criticised treatment given on June 29, 1957, was administered, plaintiff was already suffering from erythema multiforme bullosa, sometimes called Stevens-Johnson syndrome; that this malady was the real cause of the illness and disability complained of by plaintiff; that the penicillin treatment did not cause or contribute thereto; that this malady named Stevens-Johnson syndrome was, on June 29, 1957, in the prodromal or preliminary stage and could not then be diagnosed; that the preliminary inquiry relating to possible allergy and the response thereto complied with standard practice of physicians in good standing in the community of Fresno at that time as the basis for administering penicillin treatment under the diagnosis arrived at; that for streptococci infection of the kind here diagnosed reputable physicians of Fresno generally use penicillin as the preferred treatment; that the diagnosis and treatment given by defendant conformed to ordinary standards of care used by physicians in good standing in the Fresno community at that time. Plaintiff produced evidence in conflict therewith. The jury returned a verdict for defendant. A motion for a new trial was made and denied, and plaintiff appeals.

Plaintiff's points on appeal are confined entirely to criticism of the instructions which relate to defendant's duties as a physician and how negligence is to be measured. In discussing these criticisms, it appears necessary to quote all of the instructions thus involved. ¹ No other instructions are criticised. The jury was properly warned, near the commencement of the instructions, that they must not select a single instruction or portion thereof and base a verdict thereon, but must consider all of the instructions together.

Physicians in Good Standing

Plaintiff first complains that some of the instructions do not include, in describing 'ordinary care', the terminology 'in good standing', and in one place uses the word 'average'; that such failure to include in each of such instructions said phrase 'in good standing' misled the jury and was prejudicial error. Plaintiff does not quote the instruction and his transcript reference appears to be in error. From a review of the briefs, however, we are satisfied that he refers to No. 4 in Note 1. (For clarity in reference here, we have assigned our own numbers.)

In considering this contention, we must bear in mind that, as the jury was properly instructed, all the instructions given must be considered together and as a whole. Semantic analysis of a single line, sentence or instruction without regard to the whole charge can only result in misleading distortion. As was said in Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 519, 203 P.2d 522, 525:

'In determining the propriety of an instruction the reviewing court should examine the charge as a whole. (Citations.) If when considered together the instructions are found generally to state the applicable law, reversible error is not necessarily present even though an isolated instruction is defective in not containing all of the essential elements.'

See also Scarano v. Schnoor, 158 Cal.App.2d 612, 617-619[3-4], 323 P.2d 178, 68 A.L.R.2d 416; Ballard v. Augustine, 171 Cal.App.2d 206, 212, 339 P.2d 859.

Viewing the instructions as a whole, we find that instruction numbered 3, which immediately preceded the instruction complained of, did use the terminology 'in good standing'. Instruction numbered 5, immediately following, used the terminology 'a physician of reasonable and ordinary prudence'; instruction numbered 7 used the terminology 'in good standing'; instruction numbered 8 used the terminology 'reputable members of his profession'; instruction numbered 9 specifically and especially warned the jury that the standard of care is set by the skill of others of the same profession 'in good standing'; instruction numbered 12 used the terminology 'in good standing'.

Reading the instructions as a whole, we are convinced that the jury could not reasonably have misunderstood the standard of care to be applied. Nothing said in any of the cases cited by plaintiff is contrary to this conclusion. Houghton v. Dickson, 29 Cal.App. 321, 155 P. 128, and Say v. Barber, 202 Cal. 679, 262 P. 312, simply give the general rules governing this class of case. Sim v. Weeks, 7 Cal.App.2d 28, 45 P.2d 350, disapproves the insistence of defendant therein on the use of the word 'average' in a single instruction, but does not discuss the whole charge to the jury. Sansom v. Ross-Loos Medical Group, 57 Cal.App.2d 549, 134 P.2d 927, affirmed a judgment for plaintiff in that case but does not discuss the charge as a whole. The Scarano case, as we have already pointed out, discusses the whole charge and arrives at the exact conclusion that we have here arrived at.

We find no prejudicial error.

Duty, Negligence and Burden of Proof

Plaintiff next contends that instruction numbered 5 below, prejudicially misled the jury because it omitted the factor of the physician's requisite skill and the application thereof. In the first place, the instruction does, in fact, refer to the application of the ordinary physician's skill. However, the primary fault in defendant's approach, again, lies in the same field we have already discussed. A single instruction is only one part of the whole explanation being given to the jury. No one word, line, sentence or paragraph can possibly inform the jury of the rules they need to know. The instruction is not contradictory, but simply incomplete. It would, of course, be desirable to have all elements of each phase of a case repeated in each instruction, but such a course would be entirely impracticable for the instructions would then become so lengthy that no jury's attention could ever be retained. Here, in the content and purpose for which it is used, we consider the instruction not improper, although if used without other instructions it would have been of little value. Here, the elements claimed to have been admitted were contained in other instructions in such a way as to harmoniously and without contradiction give the jury a clear picture of the basic standard of care and its application to the facts of the case.

Actionable negligence charged against a physician simply consists in his doing something which he should not have done, or in failing to do something which he should have done. Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642; Langford v. Kosterlitz, 107 Cal.App. 175, 182, 290 P. 80.

We find no prejudicial error here.

Would and Should

Next plaintiff complains that the word 'would' as used several places in the instructions,...