Kerr v. Bock
| Decision Date | 25 September 1970 |
| Citation | 89 Cal.Rptr. 794,11 Cal.App.3d 621 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Eva M. KERR, Plaintiff and Appellant, v. Gustavus BOCK, sued as Gustave Bock, Defendant and Respondent. Civ. 34563. |
William J. Pollack, O'Rourke & Greenberg and David Greenberg, Los Angeles, for plaintiff and appellant.
Bonne & Jones and H. Gilbert Jones, Los Angeles, for defendant and respondent.
Plaintiff appeals from an adverse judgment in her action for medical malpractice. The essential issue on appeal is whether the trial court erroneously failed to instruct the jury on the doctrine of res ipsa loquitur.
The facts are relatively simple. In January 1963, plaintiff, a lady then 67 years old, went to see a Doctor Jones. She had had intermittent pain in her left leg 'between the hip and the knee; more toward the hip.' X-rays were taken and revealed a tumor on her left femur. The diagnostic impression of the radiologist was '[p]robable osteogenic sarcoma, proximal femur, left.' Plaintiff was referred to a Doctor Durnin, an orthopedic surgeon, who was scheduled to perform a biopsy of the tumor. This involved, of course, surgery. Plaintiff agreed to the procedure. Before it was actually undertaken, it appeared that Doctor Durnin would be unable to perform it and, with plaintiff's consent, it was performed by defendant on February 7, 1963. The surgery was uneventful, as such. A certain amount of the femur was removed. A pathological report which, of necessity, took about two weeks in preparation, ruled out the doctors' initial impression of a malignant sarcoma. The tumor, which was benign, was in reality an osteoid osteoma. In the meanwhile plaintiff had been discharged from the hospital on February 13. On February 14, in her home, plaintiff was lying on a sofa watching television. Attempting to rise she lifted up her left leg 'just a little,' and it fractured at the site of the operation. 1 She was returned to the hospital. After it had been determined that the tumor was benign, defendant performed another operation in which he placed an intramedullary nail into the bone. The nail was removed by another physician in June, 1964. Plaintiff's only complaint of permanent disability was that she got tired when she walked 'quite a bit,' such as while shopping. On those occasions she did not actually feel pain, but just an ache.
At the trial the thrust of plaintiff's charge of negligence against defendant was that he had not provided either internal or external fixation or immobilization to the femur which was admittedly weakened by the surgery. Although this failure is the kingpin of plaintiff's claim, the record is also susceptible of inferences that the radiologist's diagnostic impression of a probable malignancy was erroneous and that defendant should have realized this before operating, that he removed more bone than was necessary, that he did not realize just how much bone he had removed and, finally, that having decided not to provide fixation or immobilization, his instructions to plaintiff on how to conduct herself were insufficient, in that he did not specifically warn her against lifting the leg.
On one aspect of the case there can be no reasonable disagreement: defendant did not just overlook the problem of fixation or immobilization. Whether through negligence or otherwise, not providing either kind or protection was his deliberate choice.
Plaintiff produced an expert witness. The substance of his testimony was that due care demanded the insertion of an intramedullary fixation device. It was his position that whenever more than twenty percent of the circumference of the femur is removed, such a device had to be inserted. It was his further conclusion from inspecting whatever records and X-rays were available, that defendant had removed at least fifty percent of the circumference of the femur. On cross-examination it appeared that in arriving at his conclusion that defendant had violated the standard of care, plaintiff's expert had assumed that the tumor was of the kind which it was shown to be by the pathological report that was received several days after plaintiff's return to the hospital, not the suspected osteogenic sarcoma.
Although, of course, we must determine the propriety of the court's failure to instruct on res ipsa loquitur without recourse to the defense testimony, 2 it will help in understanding the context in which the problem arises, if we set forth the heart of defendant's position below. It is explained in the following examination by his counsel:
No particular purpose would be served by setting forth other details of the evidence produced by defendant to overcome plaintiff's prima facie case of negligence. Suffice it to say that through his own testimony and that of two expert witnesses defendant produced ample evidence to support the verdict in his favor. 3 No contention to the contrary is made.
On the subject of precautions against breaking the femur after the operation, plaintiff testified that she was furnished with crutches on February 11. Before leaving the hospital defendant instructed her to use the crutches at all times and to 'be careful and not [sic] put only a little weight on the leg.' 4 She knew that the bone had been weakened by the operation and that she had to be careful. Although she kept that fact in mind during the days after the operation, she claimed to have no idea that the bone break. Defendant corroborated plaintiff, in part, testifying that he had '* * * told her that she was to use crutches at all times, with minimal weight bearing, bearing the weight of her extremity only, just the weight of touching it down on the floor; that she was to be very careful and avoid any injury, any violent motions; that this bone could fracture if she sustained an injury. '
The fact that plaintiff's evidence showed specific acts of negligence cannot, of course, deprive her of the right to a res ipsa loquitur instruction, if she is entitled to it. (Shahinian v. McCormick, 59 Cal.2d 554, 563, 30 Cal.Rptr. 521, 381 P.2d 377; DiMare v. Cresci, 58 Cal.2d 292, 299, 23 Cal.Rptr. 772, 373 P.2d 860; Prosser, Law of Torts (3d ed. 1964) pp. 236-237.) 'If the rules were otherwise, a plaintiff would be penalized for producing all of the evidence he has as to the cause of the accident, and in some cases the trier of fact might be denied evidence useful and relevant to the proper determination of the case.' (DiMare v. Cresci, supra, 58 Cal.2d at 299, 23 Cal.Rptr. at 776, 373 P.2d at 864.)
It seems to us, however, that both plaintiff and the dissent would go further and have the court hold that when the plaintiff has a prima facie case of specific negligence, that alone, somehow, also entitles her to a res ipsa instruction. That, of course, is not the law; nor can we see why it should be the law simply because the plaintiff has not just one, but several theories of specific misconduct.
Leaving aside all other elements of an adequate res ipsa showing, the minimum is some substantial evidence which, if believed by the jury, entitles it to draw an inference of negligence from the happening of the accident itself. This inference may be based on common experience or expert testimony. We find no evidence in the record which would have justified a jury in drawing the necessary inference by either route.
We first turn to expert testimony. Concededly there is no magic language which must be intoned by any witness before a court can say that a res ipsa instruction based on expert testimony is called for. (Tomei v. Henning, 67 Cal.2d 319, 322, 62 Cal.Rptr. 9, 431 P.2d 633.)
In Tomei the defendant had performed a hysterectomy on plaintiff and had accidentally sutured her right in two places. Doctor A., plaintiff's expert, had testified that in order to avoid such an accident certain techniques to determine the condition of the ureter should be employed before closing the wound. Concededly the defendant had not employed either technique. His defense was that the suturing of the ureter and the failure to discover it were unavoidable and not the result of negligence. He prevailed. No res ipsa instruction had been given. The status of the law pertaining to the need for such instructions in medical malpractice cases had recently been declared in Clark v. Gibbons, 66 Cal.2d 399, 412,...
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