Marvin v. Talbott

• Decision Date: 20 May 1963
• Citation: 5 A.L.R.3d 908,216 Cal.App.2d 383,30 Cal.Rptr. 893
• Court: California Court of Appeals Court of Appeals
• Parties: , 5 A.L.R.3d 908 Stanley MARVIN, Plaintiff and Appellant, v. Dr. Harry TALBOTT, Defendant and Respondent. Civ. 6942.

Page 893

30 Cal.Rptr. 893

216 Cal.App.2d 383, 5 A.L.R.3d 908

Stanley MARVIN, Plaintiff and Appellant, v. Dr. Harry TALBOTT, Defendant and Respondent.

Civ. 6942.

District Court of Appeal, Fourth District, California.

May 20, 1963.

Stanley Marvin, in pro. per.

Gray, Cary, Ames & Frye, San Diego, and J. Sterling Hutcheson, San Diego, for defendant and respondent.

COUGHLIN, Justice.

The plaintiff, appellant herein, brought this action against the defendant, respondent herein, who is an osteopathic physician and surgeon, to recover damages for injuries claimed to be the result of a hemorrhoidectomy performed by the latter; alleged two causes of action, viz., one on the theory of negligence and the other for breach of warranty; went to trial; after presentation of his case, was nonsuited as to both causes of action; and appeals from the judgment of nonsuit entered accordingly. The basis for granting the nonsuit on the negligence cause of action was the insufficiency of the evidence to show either the cause of the plaintiff's claimed injuries, or that the alleged cause thereof was a lack of ordinary skill measured by medical standards; and on the warranty cause of action, was the failure to show the existence of a warranty.

On November 29, 1958, the defendant operated upon the plaintiff for a previously diagnosed hemorrhoid and cryptitis condition; employed what the doctor described as the 'clamp and cautery method'; during the course of the operation discovered a fistula located behind the exterior sphincter muscle; cut through the muscle; and removed the fistula. The defendant testified that the manner in which he performed the operation was the approved method; and there was no testimony to the contrary.

The plaintiff contends that as a result of the operation he lost control of his bowel movements, which condition continues to the present time, sustained a stricture of the anal canal, which required a second operation, and suffered abdominal pains; that the conditions complained of are attributable to the defendant's failure to exercise ordinary care and skill; that the standard of care and skill required of him, under the circumstances of this case, is a matter of common knowledge and need not be proven by expert medical testimony; and, in addition, the evidence establishes a promise by the defendant to effect a successful result.

The issues thus raised on this appeal are resolved by an application of pertinent well-established rules to the evidence at hand.

'The standard of care against which the acts of a physician are to be measured is a matter particularly 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.' Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 5, 8 A.L.R.2d 757; Lawless v. Calaway, 24 Cal.2d 81, 86, 147 P.2d 604.)

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. (Nicholas v. Jacobson, 205 Cal. 577, 579-580, 271 P. 1057; Puckhaber v. Southern Pacific Co., 132 Cal. 363, 364, 64 P. 480; Deckard v. Sorenson, 177 Cal.App.2d 305, 308, 2 Cal.Rptr. 121; Nicholas v. Jacobson, 113 Cal.App. 382, 389, 298 P. 505.)

The plaintiff testified that, commencing with the second day after surgery, he had no control over his bowel movements; there 'was no forming of any bowel whatsoever'; 'it was just like the diarrhea'; he had to wear a pad to keep clean; he did not have this condition at any time prior to the operation; there has been no improvement therein; and he still has a loss of control. The attorney for plaintiff, in the course of his examination, referred to this condition as 'incontinence.' The defendant testified that 'incontinence' ordinarily describes a condition where the patient has lost control of his bowel movement but the fecal matter discharged is solid, and that the condition related by the plaintiff is better described as a diarrhea. The plaintiff also testified that he obtained the services of another doctor in the latter part of January, 1959, and underwent an operation for an anal stricture; in August of the same year was operated on by a third doctor, although the nature of this operation is not disclosed by the evidence; and subsequently obtained the services of a fourth doctor who has been treating him for approximately two years.

The defendant, as a witness called by the plaintiff under Section 2055 of the Code of Civil Procedure, testified that the sphincter muscles control bowel movements; that the internal sphincter would continue to function even though the exterior sphincter was interfered with in the course of surgery; that lack of control for a period of three weeks ordinarily accompanies an operation such as that performed on the plaintiff; that the plaintiff never complained to him about any lack of control; that he saw the plaintiff every three or four days following his discharge from the hospital; that on three or four occasions the plaintiff, or his wife on his behalf, called on the telephone and complained of an inability to have a bowel movement; that on December 26th, because of a fecal impaction, the plaintiff was placed in the hospital, given a 'Harris flush,' and then returned home; that he saw the plaintiff on January 2nd, at which time the latter was developing a stenosis, i. e., a stricture of the anal canal; that one of the treatments for such a condition is dilation; that he attempted to dilate the plaintiff at that time and also advised the plaintiff to dilate himself; that he saw the plaintiff again on January 5th, and never saw him professionally thereafter; that stenosis is an after-effect of a hemorrhoidectomy in about 4% of the cases; that dilation by the doctor and by the patient is a method of preventing such; but dilation is not indulged in unless there is an indication that a stenosis is developing.

The plaintiff contends that there is sufficient evidence to establish malpractice in that preparatory to operation he was not given an enema, and his rectal area was not shaved nor washed with an antiseptic;...