Lemons v. Regents of University of California

• Decision Date: 21 August 1978
• Court: California Supreme Court
• Parties: , 582 P.2d 946 Rudine B. LeMONS, Plaintiff and Appellant, v. The REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. L.A. 30914.

Page 355

148 Cal.Rptr. 355

21 Cal.3d 869, 582 P.2d 946

Rudine B. LeMONS, Plaintiff and Appellant, v. The REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

L.A. 30914.

Supreme Court of California, In Bank.

Aug. 21, 1978.

Harney & Moore, Los Angeles, Ellis J. Horvitz and Irving H. Greines, Encino, for plaintiff and appellant.

Fred B. Belanger and Schell & Delamer, Los Angeles, for defendants and respondents.

BIRD, Chief Justice.

This is an appeal by Rudine B. LeMons from a judgment exonerating respondents, Dr. Paul Ward and the Regents of the University of California, of any liability for medical malpractice. This court must decide whether the trial court committed prejudicial error in instructing the jury on the issue of contributory negligence when no evidence was introduced at trial to support such a charge.

I

In September 1971, appellant was referred to Dr. Ward regarding an inflamed nasal cyst. Dr. Ward was a professor of surgery at the University of California at Los Angeles and chief of head and neck surgery at the university's hospital. In examining appellant, Dr. Ward discovered a second lump below her left ear. He diagnosed the lump as a "mixed" or benign tumor in appellant's parotid gland. ¹

Dr. Ward advised appellant that the parotid tumor was more serious than the nasal cyst and should be removed. Appellant was reluctant to have the parotid surgery (i. e. , a parotidectomy), since she had been aware of the lump for at least 10 years and it had never bothered her. Nevertheless, Dr. Ward considered the lump potentially malignant and capable of spreading quickly, thereby endangering the nearby facial nerve. After discussing the nature and risks of an operation, Dr. Ward urged that surgery be undertaken within six months.

In November 1971, appellant visited a second surgeon, who confirmed Dr. Ward's opinion that the lump below her ear should be removed. On the basis of the advice of these two doctors, appellant decided to undergo surgery.

On November 16th, an operating team headed by Dr. Ward performed the parotidectomy. In cutting the tissue toward the parotid gland, Dr. Ward unintentionally severed appellant's facial nerve before identifying it. After discovering the severed nerve, Dr. Ward removed the cyst (which proved to be benign), sutured the nerve ends back together, and completed the operation.

Following the operation, the left side of appellant's face was completely paralyzed. Dr. Ward apologized and told appellant that the reconnected nerve might not begin to function for some time. He suggested physical therapy after her discharge from the hospital, but indicated that there was no proof that the therapy would be of any benefit.

Between December 6, 1971, and February 14, 1972, appellant undertook physical therapy and saw Dr. Ward four times. She regained little control of the muscles on the left side of her face. At her last visit with Dr. Ward, she felt "as if (she) had been dismissed," since the therapy was unsuccessful and Dr. Ward suggested no other course of treatment.

At the end of February, appellant began treatment with Dr. Alberto Marinacci, a neurologist and professor of neurology at the University of Southern California. Dr. Marinacci sought to help regenerate the damaged nerve by electrical stimulation. Appellant was also given injections of vitamin B-12. ² By late 1974, appellant had recovered about 20 percent of the normal functions of the left side of her face. She had difficulty moving her facial muscles to express emotions or to eat. Her eye would not blink involuntarily which, in turn, caused damage to her cornea. She was unable to read for more than 15 minutes at a time or to continue her career as a painter. She filed her suit for damages on July 19, 1972.

The trial involved a predictable battle of experts. Appellant produced a forensic pathologist, a neurologist, two surgeons and an ophthalmologist who testified that an unintentional severing of the facial nerve before identifying it falls below the community standard of medical practice in performing parotidectomies. Respondents produced two specialists in head and neck surgery who, along with Dr. Ward, testified that an accidental cutting of the facial nerve is within the community standard. Dr. Ward testified that any surgeon who performs enough parotidectomies is bound to cut a nerve by mistake, and this time "my number came up."

In arguing to the jury, defense counsel emphasized that appellant's recovery was small because of her own conduct after surgery. In his initial statement to the jury, counsel stated that "(t)here should have been more improvement (in appellant's condition), however, Mrs. LeMons chose to leave the care of the doctors who were able to take care of her and . . . to go elsewhere." In closing argument, he asserted that after leaving Dr. Ward, appellant sought incompetent medical assistance. It was argued that appellant could have avoided her present condition by staying with Dr. Ward, who had plans "to attempt to restore to the fullest the ability of the facial nerve to work."

As requested by respondents, the trial judge instructed the jury on a patient's contributory negligence in failing to follow proper medical advice ³ and on an injured party's duty to mitigate damages. ⁴ The jury rendered a nine-to-three verdict in favor of respondents.

II

Appellant asserts that the trial court erred in charging the jury on the issue of a patient's contributory negligence. (See fn. 3, Ante.) Former BAJI No. 6.28 relieved a negligent physician of malpractice liability for any injury resulting, in whole or in part, from a patient's negligent failure to follow a doctor's reasonable directions concerning that patient's care.

The doctrine of contributory negligence was still in effect at the time the present case was tried. ⁵ Contributory negligence was closely allied and easily confused with the rule of mitigation of damages, on which the jury was also instructed. (Prosser, Law of Torts (4th ed. 1971) pp. 422-423; see Clark v. Di Prima (1966) 241 Cal.App.2d 823, 826, 51 Cal.Rptr. 49.) Both doctrines involved the plaintiff's duty to act reasonably. Contributory negligence was concerned with the plaintiff's negligence Before being injured, while the mitigation rule was concerned with a lack of due care After the injury. (Prosser, Law of Torts, Supra, p. 423.) The effect of contributory negligence was to bar all recovery by the plaintiff. In contrast, a plaintiff's failure to mitigate barred recovery of only the portion of damages which could have been avoided by ordinary care after the injury. (Ibid.)

In the present case, appellant contends that former BAJI No. 6.28 should not have been given since the record contains no evidence of any negligence on her part before the cutting of her facial nerve. As a general rule, it is improper to give an instruction which lacks support in the evidence, even if the instruction correctly states the law. (E. g., Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 370, 99 Cal.Rptr. 29, 491 P.2d 821.) For example, a contributory negligence instruction cannot be given unless the record shows that some negligence on the part of the plaintiff proximately caused his or her injury. (Witt v. Jackson (1961) 57 Cal.2d 57, 68, 17 Cal.Rptr. 369, 366 P.2d 641; Western Salt Co. v. City of Newport Beach (1969) 271 Cal.App.2d 397, 402, 76 Cal.Rptr. 322.) Thus, it is error in medical malpractice cases to give BAJI No. 6.28 in the absence of some evidence that the injured patient's acts or omissions were a proximate cause of the harm sustained. (Barton v. Owen (1977) 71 Cal.App.3d 484, 505-507, 139 Cal.Rptr. 494; see Preston v. Hubbell (1948) 87 Cal.App.2d 53, 61-62, 196 P.2d 113; Maertins v. Kaiser Foundation Hospitals (1958) 162 Cal.App.2d 661, 667, 328 P.2d 494.)

In the present case, there was no evidence that appellant's original injury resulted from any failure to follow medical instructions. Indeed, appellant could scarcely have contributed to her facial paralysis, which resulted from acts of the surgeon while appellant was unconscious on the operating table. Therefore, it was error for the trial court to include former BAJI No. 6.28 among the instructions given to the jury.

The next question presented is whether or not this error was prejudicial. (See Cal.Const., art. VI, § 13.) Prejudice appears "(w)here it seems probable that the jury's verdict may have been based on the erroneous instruction . . . ." (Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 378, 359 P.2d 929, 930; Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670, 117 Cal.Rptr. 1, 527 P.2d 353.) Whether "the probable effect of the instruction has been to mislead the jury . . . depends on all the circumstances of the case, including the evidence and the other instructions given." (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660-661, 320 P.2d 500, 505-506, see also Krouse v. Graham (1977) 19 Cal.3d 59, 72, 137 Cal.Rptr. 863, 562 P.2d 1022.)

While there is no precise formula for measuring the effect of an erroneous instruction (Butigan v. Yellow Cab Co., supra, 49 Cal.2d at p. 661, 320 P.2d 500), a number of factors are considered in measuring prejudice: (1) the degree of conflict in the evidence on critical issues (see Robinson v. Cable, supra, 55 Cal.2d at p. 428, 11 Cal.Rptr. 377, 359 P.2d 929; Maertins v. Kaiser Foundation Hospitals, supra, 162 Cal.App.2d at p. 667, 328 P.2d 494); (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect (see Clark v. Di Prima,supra, 241 Cal.App.2d 823, 51 Cal.Rptr. 49); (3) whether the jury requested a rereading of the erroneous instruction (see Krouse v. Graham, supra, 19 Cal.3d at p. 72, 137 Cal.Rptr. 863, 562 P.2d 1022) or of related evidence (see Rimmele v. Northridge Hosp. Foundation (1975) 46 Cal.App.3d 123, 131, 120 Cal.Rptr. 39); (4) the...