Scarano v. Schnoor, 17263

• Decision Date: 24 March 1958
• Docket Number: No. 17263,17263
• Citation: 158 Cal.App.2d 612,68 A.L.R.2d 416,323 P.2d 178
• Court: California Court of Appeals Court of Appeals
• Parties: , 68 A.L.R.2d 416 Rosemary SCARANO, by and through Floyd Scarano, her guardian ad litem, and Floyd Scarano, Plaintiffs and Appellants, v. Thomas SCHNOOR, Defendant and Respondent.

Page 178

323 P.2d 178

158 Cal.App.2d 612, 68 A.L.R.2d 416

Rosemary SCARANO, by and through Floyd Scarano, her guardian ad litem, and Floyd Scarano, Plaintiffs and Appellants, v. Thomas SCHNOOR, Defendant and Respondent.

No. 17263.

District Court of Appeal, First District, Division 2, California.

March 24, 1958.

Charles P. Scully, Jack H. Werchick, San Francisco, for appellant.

Joseph F. Rankin, Oakland, Peart, Baraty & Hassard, Salvatore Bossio, San Francisco, for respondent.

DOOLING, Justice.

Plaintiff Rosemary Scarano, through her guardian ad litem, appeals from a judgment for defendant Dr. Thomas Schnoor.

In September 1950 appellant was having visual difficulties and was referred to defendant by Dr. Peters, an optometrist. Defendant, an ophthalmologist, diagnosed the difficulty as 'a questionably displaced lens with nasal pigments' (lens improperly centered behind the pupil with pigment on the nasal side of the lens).

Appellant's mother testified that defendant recommended surgery on both eyes for a fee of $1,000 and when it was determined that the parents could not afford this amount, he sent appellant to the University of California Hospital. Defendant testified that he informed Mrs. Scarano that surgery might be advisable and that it would be an expensive procedure. He denied quoting any fee and stated that he sent appellant to the University of California Hospital for a thorough check or 'work-up.'

Defendant testified that he received a verbal report from Dr. Hogan of the University of California Hospital stating that surgery was advisible. A letter from a member of the hospital staff dated November 9, 1950, received by defendant diagnosed appellant's condition as bilateral subluxated lenses of congenital origin (displaced lenses in both eyes). The letter further stated:

'It was our feeling that this patient should be handled conservatively since her eyes are quiet and in fairly good condition * * * In the future, she has about a fifty percent chance of having either iritis or glaucoma. If either of these complications should arise, surgical intervention would be indicated. Meanwhile, watchful waiting might be the best plan.'

Defendant next saw appellant in July, 1953. His diagnosis was that appellant had a congental bilateral displacement condition with cataractous changes (opacity of the lenses). Defendant testified that the latter condition was not present at the first examination in 1950. He did not consult with any other ophthalmologist and recommended surgery as the only method of correcting appellant's vision.

Although appellant's parents testified that defendant had assured them that the operation would not result in any poorer vision he denied this. Surgery was advised at this time because the child was 7 1/2 years of age and since vision develops until approximately 8 years of age, to improve vision the surgery must take place before that time.

Appellant's left eye was operated upon on July 16, 1953. Of the three possible operating procedures defendant chose the intracapsular extraction. This method consists of the removal of the entire lens including the capsule (which contains the lens substance). The lens is held in place by zonular fibers and in removing the lens these fibers must be broken. Where there is a displaced lens in a child the fibers are usually stretched on one side and very strong on the opposite side. Defendant testified that while he expected this condition the zonular fibers proved tougher than he anticipated. He was unable to break these strong fibers by pulling or twisting the lens and had to use a loop. This instrument is placed under the lens to give greater traction.

On August 15, 1953, appellant's vision in her left eye was 20/40 to 20/50 which was an improvement from that prior to surgery. Due to a 'hammocking' of the pupil (the iris drawing up and closing the pupil) a visual iridectomy was performed by defendant on October 8, 1953. This operation consists of cutting a hole in the iris to permit vision.

Appellant's vision did not improve and she was taken to Dr. Pischel. Dr. Pischel found marked inflammation in the eye with poor light perception. He also found early signs of phthisis bulbi or shrinkage of the eyeball. These conditions were due to a loss of the vitreous substance of the eye and it was finally decided that the eye would not improve and it was removed and a prosthesis installed.

Appellant's action was based on alleged negligent diagnosis and treatment. She attempted to prove that surgery should not have been performed and that the operative procedure used was wrong, in that the defendant should have expected such procedure would cause a vitreous loss.

Expert witnesses for defendant agreed that for a patient with a dislocated lens plus early cataract formations the optimum time for surgery would be between six and a half and seven years of age. There was testimony that as to the diagnosis and the operative procedure the defendant exercised a 'lot better than average care.' The intracapsular procedure was stated to be a standard technique in the community and the practice of being assisted by a trained nurse rather than an ophthalmological surgeon was stated to be standard in the community. Defendant had previously performed two or three intracapsular procedures on children. Dr. Pischel testified that he would not do an intracapsular procedure in the case of a child with a displaced lens and all the zonular fibers attached.

Appellant relies on the following grounds for reversal:

1. The trial court gave erroneous instructions.

2. The trial court refused necessary and proper instructions offered by plaintiff.

3. The trial court abused its discretion in restricting the cross-examination and examination of medical witnesses by plaintiff.

The court instructed the jury:

'In order for plaintiff to recover, it is not necessary that she prove that the negligence of the defendant was the sole proximate cause of the injuries received by her, for liability for injuries may be imposed upon a defendant where his negligence is one of several contributing factors, each of which is a proximate cause of the injuries.

'But where there are two or more possible causes of an injury for one of which the defendant is not responsible, the plaintiff, in order to recover, must show by competent evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as much as the other, the plaintiff cannot recover.'

Appellant argues that the last sentence of this instruction would be understood by the jury to mean that if they found that the injury proximately resulted from both causes, one of which would render the defendant liable, they must nevertheless find for the defendant. Reading the instruction as a whole it is not reasonably subject to this construction. The jury was plainly told that the negligence of the defendant need not be the sole proximate cause and that the defendant is liable 'where his negligence is one of several contributing factors, each of which is a proximate cause.' They were then told that to recover plaintiff must prove 'that the injury was wholly or partly the result of that cause which would render the defendant liable.' In the face of these clear statements of the law they cannot have understood the last sentence in the sense for which appellant contends. They had previously received the standard instruction that when the evidence 'is so equally balanced in weight and quality, effect and value, that the scales of proof hang even, your verdict should be against the party' having the burden of proof. In the light of the whole instruction they can only have understood the last sentence to have reference to a particular application of this general rule on the burden of proof, which was the evident purpose of the court in giving it.

Appellant criticizes the use of the word 'competent' to qualify 'evidence' in this instruction. While technically this may be error (McNamara v. Emmons, 36 Cal.App.2d 199, 206, 97 P.2d 503), the jury cannot have been misled by it. They were given the usual instructions on their powers and duties in weighing the evidence and we cannot suppose that they disregarded them or would undertake to determine the 'competency' of the evidence which the court had permitted to be introduced for their consideration.

Appellant complains of an instruction which told the jury that the action was one predicated on a claim of 'want of skill or negligence' and that in order to recover plaintiff must prove that defendant acted in a manner 'that physicians and surgeons of ordinary skill, care and diligence, engaged in the same kind of work or specialty' would not have done.

It is correct, as appellant points out, that the true test is not 'ordinary care and skill' but 'that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality' (Sansom v. Ross-Loos Medical Group, 57 Cal.App.2d 549, 552, 134 P.2d 927, 929), and to determine this standard 'we are not permitted to aggregate into a common class the quacks, the young men who have no practice, the old ones who have dropped out of the practice, the good, and the very best, and then strike an average between them. This method would evidently place the standard too low.' Sim v. Weeks, 7 Cal.App.2d 28, 42, 45 P.2d 350, 357.

However the instructions must be read as a whole. The jury had just previously been instructed that defendant must 'exercise reasonable and ordinary care in applying that degree of learning and skill ordinarily possessed by doctors of good standing in the same or similar locality'; that it is his duty to possess 'that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing, practicing in the same locality'; that if he...