Keen v. Prisinzano

• Decision Date: 02 February 1972
• Citation: 23 Cal.App.3d 275,100 Cal.Rptr. 82
• Court: California Court of Appeals Court of Appeals
• Parties: John KEEN, Plaintiff and Appellant, v. G. A. PRISIZANO et al., Defendants and Respondents. Civ. 12816.

Page 82

100 Cal.Rptr. 82

23 Cal.App.3d 275

John KEEN, Plaintiff and Appellant, v. G. A. PRISIZANO et al., Defendants and Respondents.

Civ. 12816.

Court of Appeal, Third District, California.

Feb. 2, 1972.

Rehearing Denied Feb. 28, 1972.

James J. Duryea, San Francisco, for plaintiff and appellant.

Horvitz & Minikes, Los Angeles, and Rust & Mills, Sacramento, by Morton Minikes, Los Angeles, for defendant-respondent Prisinzano.

Hassard, Bonnington, Rogers & Huber, San Francisco, and Wilke, Fleury, Sapunor & Hoffelt, Sacramento, for defendant-respondent Edgar.

JANES, Associate Justice.

Plaintiff appeals from judgments of nonsuit in favor of both defendant physicians. (Prisinzano and Edgar) in a malpractice action in which the complaint charged each defendant with negligent diagnosis and care (first cause), negligent advice (third cause), and negligent nondisclosure (second and fourth causes).

Relatively slight argument is devoted by plaintiff to the second, third, and fourth causes of action. We have concluded from a review of the record that the judgments were so plainly correct as to those three causes that no further discussion of them herein is warranted.

Plaintiff's main contention is that, as to both defendants, nonsuit on the first cause of action was improper. With the latter contention, we agree. 'Upon the motion for nonsuit in malpractice cases the ordinary rules apply. The evidence must be construed most strongly in favor of plaintiff and every reasonable inference from the evidence drawn in his favor.' (Rouse v. Twin Pines Sanitarium, Inc. (1958) 162 Cal.App.2d 639, 642, 328 P.2d 536, 537). Viewing the record in the light of those rules, we hereunder summarize only so much of it as is needed to show that, during plaintiff's case, ¹ substantial evidence was introduced which tended to prove the averments of the first cause of action. (See generally, Guillory v. American President Lines Ltd. (1964) 230 Cal.App.2d 296, 301--303, 40 Cal.Rptr. 796).

On August 23, 1966, plaintiff fell and suffered a fracture of the right os calcis (heel bone) with involvement of the subtalar joint (the joint separating the heel bone from the bone immediately above it). He was treated that day by defendant Prisinzano, who had x-rays taken. Dr. Prisinzano erroneously interpreted the x-rays as showing merely a simple fracture of plaintiff's heel bone with No involvement of the subtalar joint. Prisinzano thereupon applied a cast from midcalf to toes; a few days later, he attached a steel support outside the cast to facilitate walking.

Plaintiff subsequently did not return to Dr. Prisinzano. Instead, on his own initiative, plaintiff sought the services of defendant Edgar. From x-rays taken for Dr. Edgar on September 13, 1966, Edgar rightly concluded that the subtalar joint was involved, as well as the heel bone. Edgar left Prisinzano's cast on plaintiff until October 10, 1966, when Edgar removed it. X-rays taken three days later showed that, after removal of the cast, there occurred a marked increase in the signs of joint involvement.

When the cast was taken off, Dr. Edgar instructed plaintiff to start bearing weight on his right foot, using crutches. Plaintiff did so during the ensuing weeks, but the pain was intense, and his heel and ankle swelled to the size of a small grapefruit. Consequently, on November 16, 1966, plaintiff consulted with an orthopedic surgeon, Dr. Horn. Two subsequent operations by Dr. Horn alleviated plaintiff's disabilities, although he had some residual ones at the time of trial.

Both defendants practiced medicine in Sacramento County.

'The law demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. (Citations.) The same degree of responsibility is imposed in the making of a diagnosis as in the prescribing and administering of treatment. (Citations.)' (Lawless v. Calaway (1944) 24 Cal.2d 81, 86, 147 P.2d 604, 606.) 'The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman. (Citation.)' (Sinz v. Owens (1949) 33 Cal.2d 749, 753, 205 P.2d 3, 5).

'Furthermore, to recover in a malpractice case it is necessary to prove that an alleged failure to exercise the care and skill required under the circumstances was a proximate cause of the condition about which complaint is made.' (Marvin v. Talbott (1963) 316 Cal.App.2d 383, 385--386, 30 Cal.Rptr. 893, 895). 'In the absence of a showing that such result was a matter of common knowledge expert testimony . . . (is) required.' (Deckard v. Sorenson (1960) 177 Cal.App.2d 305, 308, 2 Cal.Rptr. 121, 124; see also, 1 Louisell & Williams, Medical Malpractice (1970), § 11.20, pp. 324--327.)

'The expert testimony which establishes plaintiff's prima facie case in a malpractice action may be that of defendant.' (Lashley v. Koerber (1945) 26 Cal.2d 83, 89, 156 P.2d 441, 444; see, McCurdy v. Hatfield (1947) 30 Cal.2d 492, 495, 183 P.2d 269 (testimony under former Code Civ.Proc., § 2055, now Evid.Code, § 776).)

In the case at bench, plaintiff does not contend that the applicable standard of care could be determined by resort to common knowledge, or that such knowledge could resolve the issue of proximate cause. Even where expert testimony is required, however, it may be circumstantial in nature, and the jury is entitled to draw reasonable inferences from it in finding the standard of care (McCurdy v. Hatfield, supra, 30 Cal.2d at p. 495, 183 P.2d 269; Lashley v. Koerber, supra, 26 Cal.2d at pp. 89--92, 156 P.2d 441; Sheffield v. Runner (1958) 163 Cal.App.2d 48, 51--52, 328 P.2d 828; Wickoff v. James (1958) 159 Cal.App.2d 664, 668--669, 324 P.2d 661; Green v. Hale (5th Cir. 1970) 433 F.2d 324, 331; Anderson v. Martzke (Ill.App.1970) 266 N.E.2d 137, 139) and in determining proximate cause (Champion v. Bennetts (1951) 37 Cal.2d 815, 820--821, 236 P.2d 155; McBride v. Saylin (1936) 6 Cal.2d 134, 137--139, 56 P.2d 941; Sheffield v. Runner, supra, 163 Cal.App.2d at pp. 52--53, 328 P.2d 828; Remberg v. Morgan (1928) 209 Iowa 474, 481--487, 218 N.W. 492, 496--498; Johnson v. Vaughn (Ky.1963) 370 S.W.2d 591, 597; Rogers v. Kee (1912) 171 Mich. 551, 557--563, 137 N.W. 260, 263--265; Kappel v. Slickman (Mo.1966) 401 S.W.2d 451, 453).

Plaintiff called defendant Edgar as a witness under Evidence Code section 776. Dr. Edgar testified that one of Dr. Prisinzano's x-rays of August 23, 1966, would 'have to' be interpreted as showing subtalar joint involvement; that he (Edgar) had the ability of a general practitioner in the Sacramento commuunity in interpreting an x-ray; and that a general practitioner conforming to the standards of practice in the Sacramento community should have been able to look at the Prisinzano x-ray and conclude from it that the subtalar joint was involved.

Plaintiff also called defendant Prisinzano as a witness under section 776. Dr. Prisinzano testified that, where a fracture of the os calcis involves the subtalar joint, '(y)ou would have pinching of the bone against the fibula, causing some narrowing of the tunnel through which the peroneal tendon comes through'; that this could eventually require surgery to relieve the pressure on the peroneal tendon; and that one of the operations performed on plaintiff by Dr. Horn was to relieve such pressure. ² Without limitation as to purpose, plaintiff's attorney read into evidence a portion of Dr. Prisinzano's deposition. ³ In his deposition Dr. Prisinzano stated that if the fracture of plaintiff's os calcis distorted the subtalar joint, it would have required care and treatment different than what he (Prisinzano) had prescribed; that one of such other treatments was pinning; and that an alternative method was open reduction. Prisinzano further testified at trial that, if he had known that plaintiff's subtalar joint was distorted, he (Prisinzano) would have used the pinning method. Plaintiff's counsel asked Prisinzano the following question: 'Now, Doctor, the reason that you would have done the pinning is that because your learning has told you if you use the pinning process, The probability of not having the residual effects that this man presently has were greater; isn't that true?' (Emphasis added.) Dr. Prisinzano testified in reply 'Well, to a certain extent it is. That was our teaching.'

According to Dr. Edgar's later testimony, it would have been physically harmful to plaintiff if Edgar had changed the course of treatment initiated by Prisinzano. In that respect Edgar said, 'If you see it initially, and then make the decision you are going to treat with surgery, that is the time to do it. So that once you have lost that chance to operate, you'd better just wait and treat it conservatively by cast, and so forth, and you may get a good result, even though it is not anatomical.'

The jury could reasonably have concluded from the foregoing evidence that defendant Prisinzano was negligent when he misinterpreted the x-ray of August 23, 1966; that if he had read that x-ray correctly and had diagnosed involvement of the subtalar joint, he would have treated by pinning instead of casting; that pinning would probably have left plaintiff with less residual disability; and that Dr. Prisinzano's negligent reading of the x-ray was, therefore, a proximate cause of such disability.

As against defendant Edgar, substantial evidence tending to support the first cause of action is found in the testimony of Dr. Prisinzano. At trial, Prisinzano testified that the standard of care for a general practitioner in the...