Moore v. Belt

• Decision Date: 16 December 1949
• Citation: 212 P.2d 509,34 Cal.2d 525
• Parties: MOORE v. BELT et al. L. A. 20994.
• Court: California Supreme Court

Page 509

212 P.2d 509

34 Cal.2d 525

MOORE v. BELT et al.

L. A. 20994.

Supreme Court of California, in Bank.

Dec. 16, 1949.

As Modified on Denial of Rehearing Jan. 12, 1950.

E. Briggs Howarth and Walter R. Trinkaus, Los Angeles, for appellant.

Fulcher & Wynn., Gibson, Dunn & Crutcher and Philip C. Sterry, Los Angeles, for respondent.

Hartley F. Peart, Gus L. Baraty, Howard Hassard, George A. Smith, Alan L. Bonnington, San Francisco, Reed & Kirtland and Louis J. Regan, Los Angeles, amici curiae on behalf of respondent.

SHENK, Justice.

Appeal by the plaintiff from a judgment on a verdict for the defendant in an action to recover damages for alleged malpractice.

The appeal is on a settled statement. Due to an admitted conflict in the testimony it is not contended that the evidence is insufficient to support the verdict. The plaintiff's principal assignment are that the court committed prejudicial error in the instructions on the issue of negligence and in rulings on the admission of evidence.

The defendant is a physician practicing in the county of Los Angeles and has specialized in urology since 1923. The plaintiff, an attorney, is 46 years old and resides in Los Angeles. He formerly lived in Texas. On June 7, 1944, he appeared at the defendant's office pursuant to an appointment. His medical history given at that time showed the following:

In childhood he experienced the usual children's diseases. In his youth he had trouble with his left testicle which was small and would draw up into the abdomen upon pressure. This condition continued throughout the years causing him pain and discomfort. Beginning about 1920 a sinus infection developed which gave him much distress. Drainages in 1921 quieted the area somewhat until 1930. The difficulty recurred and in 1932 he had a bone cutting operation which did not entirely remove the trouble. At times he had a slight rheumatic pain in the right wrist. Periodic pain centering in the lower abdominal region commenced about 1936. It was preceded by a slight nonvenereal urethral discharge which disappeared that treatment. X-ray and fluoroscopic examinations were made in El Paso and again in 1939 in Los Angeles in an attempt to locate the origin of the abdominal pain, and in 1942 the appendix was removed. But the difficulty remained and called for further study. For this purpose the plaintiff was sent by his personal physician to the defendant.

At the defendant's office the plaintiff was subjected to examination and tests of the prostatic secretion, the urine, and for syphillis. He was then prepared for cystoscopic examination which was conducted by the defendant with the use of instruments and fluids inserted through the ureters. X-ray pictures were taken. Before he departed the plaintiff was informed by the defendant that the tests showed negative results except for five per cent pus cells in the prostatic secretion which was stated to be normal, and that his trouble could not be traced to any infection or difficulty in the genito-urinary system.

The plaintiff worked at his office the following day and evening until eight o'clock when he had a chill and went home. Chills and fever continued alternately throughout the night and the next day. The defendant was out of the city and the plaintiff called Dr. Hyde who took samples of urine to his laboratory for tests and later reported the results which were not given in evidence. Sulfa drugs were sent from the defendant's office for administration. The following day Dr. Guth of the defendant's staff called, made examinations and advised continuing the drugs. Chills and profuse sweating continued and the plaintiff was taken to a hospital where he was attended by Dr. Ebert from the defendant's office. Dr Ebert informed the plaintiff that he was being treated for an acute infection of the urinary passages but it was not undestood how the infection arose. The chills and fever abated on June 14th and on June 16th the plaintiff returned to his home where he was confined for ten days. On June 27th he reported at the defendant's office and after prostatic and urinary tests was told he had a twenty-five per cent infection. Subsequent tests showed the infection decreasing gradully to ten per cent. He was informed that the defendant did not know the cause of the infection. The plaintiff then began treatment with his personal physician. Because of an apparent allergy to sulfa drugs, penicillin was substituted in the treatment and apparently proved more effective.

On the trial the plaintiff produced one expert witness, an autopsy surgeon in Los Angeles, who testified that in his opinion the twenty-four hours between the cystoscopic examination and the fever symptoms constituted an incubation period for bacteria introduced into the delicate channels by unsterile instrumetns or, assuming proper sterlization of the instruments, from the opening of the channels whose edges were not thoroughly cleansed; that the results showed a well-seated infection in the urinary tract which was not present prior to instrumentation.

Witnesses produced by the defendant testified concerning standards of treatment and sterilization methods and stated that in their opinion the infection was not caused by any unsterile preparatory procedure nor introduced from outside sources in the conduct of the cystoscopic examination but, based on the prior medical history, was attributable to lowgrade chronic infection in the genito-urinary tracts, probably prostatic in origin, or to the use of sulfa drugs, or to influenza from respiratory inflammation or sinus infection.

At the defendant's request the court charged the jury in substance that the defendant's negligence could not be presumed but must be based on the testimony of experts; also that the jury could not set up a standard but must be governed solely by the testimony of expert witnesses.

The plaintiff requested an instruction (based on B.A.J.I. 214-B Pocket Parts) embodying the substance of the foregoing instructions and adding that expert testimony was not required to establish a fact based on common knowledge that danger is involved a where certain precautionary measures including sterilization are not followed, whereupon whether the condition was caused by negligence may be decided in the light of such common knowledge. The requested instruction was refused but at the plaintiff's request the jury was charged that if it be found that the plaintiff sustained injury as the result of the introduction by the defendant of a new infection, an inference arose that the proximate cause of the injury was some negligence or malpractice on the part of the defendant which it was incumbent upon him to rebut by clear, positive and uncontradicted evidence that the injury occurred without any failure of duty on his part.

The plaintiff contends that the instructions given were conflicting and confused the jury; that the correct theory of the case is that as a matter of common knowledge the result does not usually happen when sterilization has been proper; that expert testimony was not required to prove negligence; therefore that the instructions in conflict with his theory were erroneous, misleading and prejudicial.

On the other hand the defendant, supported by state and county medical associations as amici curiae, questions the propriety of any application of a doctrine based on common knowledge in the absence of the fact first established without conflict that the infection was introduced by the act of the defendant. It is therefore contended that the record presents issues of fact solely within the knowledge of experts and that the plaintiff's given instruction which incorporated a statement of the res ipsa loquitur doctrine was more favorable to him than the record warranted.

The given instructions embodied a statement of the general rule that the proper and usual practice in diagnosis and treatment is a question for experts and can be established only by their testimony, Perkins v. Trueblood, 180 Cal. 437, 443, 181 P. 642, and the exception declared in Barham v. Widing, 210 Cal. 206, 291 P. 173, and other cases relied on by the plaintiff.

In Barham v. Widing the defendant extracted a tooth from the plaintiff's jaw. An infection developed which from the evidence could be traced to the use of an unsterile hypodermic needle or solution inserted to anaesthetize the jaw. The jury was instructed that if the defendant used an unsterile needle or solution which proximately caused the infection the plaintiff should recover. It was claimed that the omission of the words 'carelessly and negligently' was prejudicial error. This court affirmed the judgment entered on the verdict for the plaintiff and determined that the mere fact of infection following and traceable to improper sterilization was evidence of carelessness and negligence; that the court would take judicial notice that in common knowledge such a result does not follow proper sterilization and that observance of the ordinary standards would preclude the use of an unsterile needle or solution; therefore the omitted words were not necessary to a proper charge. Declarations to similar effect and variously stated have been applied in many situations, Dierman v. Providence Hospital, 31 Cal.2d 290, 188 P.2d 12; Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 162 A.L.R. 1258; Lawless v. Calaway, 24 Cal.2d 81, 86, 147 P.2d 604; Bellandi v. Park Sanitarium Ass'n, 214 Cal. 472, 480, 6 P.2d 508; Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436; Dean v. Dyer, 64 Cal.App.2d 646, 653, 149 P.2d 288; Mastro v. Kennedy, 57 Cal.App.2d 499, 504, 134 P.2d 865; Walter v. England, 133 Cal.App. 676, 680, 24 P.2d 930; Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 467, 12 P.2d 744, 13 P.2d 905; In other cases the doctrine has been recognized. Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3; Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695 and cases cited; Church v....