Stafford v. Shultz

Decision Date11 May 1954
Citation42 Cal.2d 767,270 P.2d 1
CourtCalifornia Supreme Court
PartiesSTAFFORD v. SHULTZ et al. L. A. 22926.

Elsan H. Stafford, in pro. per.

Fulcher & Wynn, Highsmith & Allen, and Bauder, Gilbert, Thompson & Kelley, Los Angeles, for respondents.

CARTER, Justice.

Plaintiff appeals from judgments 1 of dismissal entered upon the sustaining without leave to amend of all defendants' demurrers to his fifth amended complaint.

Plaintiff, Elsan H. Stafford, 2 in his fifth amended complaint ('For damages occasioned by Malpractice and Because of False representations') alleges, substantially, as follows:

Statement of Facts: Plaintiff aleges that on or about February 25, 1949, during the time when he was a deputy sheriff of the County of Los Angeles and while acting in the line of duty, he was wounded in the left leg by the accidental discharge of his pistol. He states that the bullet pierced his left leg about eight inches above the knee; that he was taken to the Angeles Emergency Hospital and placed under the care of defendants Ellwood L. Shultz, Woodrow Meier and Arthur Ferree for treatment; that prior to that time he was in good health and all his body members and functions were intact and unimpaired.

First cause of action against defendants Shultz, Meier, and Ferree.

Plaintiff alleges that from the time of the injury until about March 6, 1949, he was under the care of the above-named defendants; that on the day of the injury, his injured leg was X-rayed; that he did not know, but that defendants did know, the extent of his injuries; that plaintiff is informed and believes that after the bullet pierced his left, leg, it coursed downward and lodged on the exterior side thereof about six inches above the ankle; that in its course, the bullet damaged a section of the popliteal (knee area) artery about one inch in length but did not completely sever it; that the bullet severed the sciatic nerve. He alleges upon information and belief that while under anaesthetic these defendants removed the bullet, severed and removed the damaged section of the popliteal artery and ligated (tied or bound) the severed ends but that said defendants 'then made no effort to repair either said damaged artery or said severed Sciatic Nerve.' He states that that care and treatment given him consisted of blood transfusions, sedatives, penicillin injections, ice packs, and occasional dressing of the wound and incision; that during the ten days these defendants treated him, the calf of his left leg remained considerably extended 'by reason of neglect of said defendants to remove said accumlated blood.' He alleges that in order to effect a cure, defendants should have repaired the artery and nerve; should have removed the accumulated blood. He alleges that defendants had the means to obtain knowledge as to whether or not his leg was infected whereas he had no such knowledge or means of obtaining the same. He then alleges that defendants neglected to take any additional X-ray pictures of his left leg.

Plaintiff further alleges that on April 12, 1949, he was again placed under the care of defendants Shultz, Meier and Ferree for treatment which consisted of sedatives, penicillin injections and occasional dressing of the wounds; that from April 12, 1949 until September 15, 1949, only one X-ray was taken which was on May 5, 1949. He alleges that during this time, considerable pus drained from the incisions; that he was almost continually confined to his bed; that he ran a temperature and had chills and was delirious; that during this time his health became impaired and the incisions did not heal. He alleges that defendants should have repaired the artery and nerve, cleansed the infection from the leg and combatted the infection of the bones which was present on May 5, 1949 and thereafter. Second Cause of action against defendants Shultz, Meier, and Ferree.

Plaintiff alleges that during the three weeks these defendants treated him, they represented to him that they had severed and ligated only one of the two arteries into which the popliteal artery branches; that it was not then necessary to repair or restore either the damaged artery, or the severed sciatic nerve 'in order to effect a cure' of the left leg; that the accumulated blood in the injured leg would be absorbed by natural process; that plaintiff believed said representations to be true and relied thereon.

First cause of action against defendants William Kelpien and Elizabeth Kelpien.

Plaintiff alleges that about March 6 1949, he was removed to the Beverly Hospital in Montebello and placed under the care of these defendants where he remained for about three weeks; that the treatment given him by these defendants consisted of sedatives, penicillin injections and the occasional dressing of his wounds. He alleges that in order 'to have insured a cure' of his leg, these defendants should have repaired the damaged popliteal artery and sciatic nerve; should have removed the accumulated blood from the injured leg and should have kept the leg free from infection; that they neglected to take any X-ray pictures of the leg; that they had means of obtaining the knowledge as to whether the bones of the leg were infected whereas he had no such knowledge or means of obtaining the same. Second cause of action against defendants William Kelpien and Elizabeth Kelpien.

That during the three weeks these defendants treated him, they represented that they knew the facts of his case; that they would effect a cure of the left leg; that it was not necessary to repair the artery which defendants Shultz, Meier and Ferree had severed and ligated, or to repair the severed sciatic nerve in order to effect a cure; that the accumulated blood would be absorbed by natural process; 'that they knew he condition of said left leg without taking X-ray pictures thereof; that the proper measures were being taken to guard against infection of said left leg'; that plaintiff believed said representations to be true and relied thereon.

First cause of action against defendant John D. Gillis.

That about March 29, 1949, plaintiff was removed to the Good Samaritan Hospital and placed under the care of defendant Gillis for treatment where he remained for about two weeks; that during this time an anaesthetic was administered to him for the purpose of making skin grafts over the incision in the popliteal space of his left leg. He alleges on information and belief that while he was under the anaesthetic, defendant Gillis made the skin grafts and several other incisions and drained therefrom 'fully five hundred cubic Centimeters of old blood clots and pus matter.' He alleges that when he was discharged from the hospital on April 12, 1949, considerable pus matter was still draining from the incisions and that he was not then cured; that to have insured a cure, defendant should have repaired the damaged artery and the severed nerve and should have thoroughly cleansed the leg of all accumulated old blood clots and pus matter and 'to have taken proper measures to guard against infection' and to 'combat any infection'; that plaintiff had no way of knowing whether infection had developed in the bones of the leg but that defendant had the means of obtaining such information; that defendant neglected to take X-ray pictures of the injured leg.

Plaintiff further alleges that about September 2, 1949, defendant Gillis informed him that the condition of the left leg was seriously endangering plaintiff's general health; that the left leg would never be of 'any material use and benefit'; that the left leg should be amputated; that plaintiff believed and relied on these representations and 'became interested in saving his life and lost interest in saving his left leg.' Second cause of action against defendant John D. Gillis.

Plaintiff alleges that during the time he was under this defendant's care, the defendant represented to him that it was reasonable to expect a cure of his left leg; that it was not necessary to repair and restore the severed and ligated artery in 'order to effect a cure'; that he knew the condition of the leg without taking X-rays thereof; that all the old accumulated blood and pus would adequately drain from the incisions in the calf; that no infection was then present; that plaintiff believed these representations to be true and relied thereon.

Plaintiff alleges that his leg was amputated by defendant Gillis on September 22, 1949, at about mid-thigh: that he is informed and believes that with the application of the proper knowledge and skill the left leg could have been saved.

Plaintiff alleges that during all the time defendants were caring for him, he was in no condition to make an investigation and had no means of discovering why his left leg was not cured; that the defendants led him to believe at all times prior to September 2, 1949, that his leg would be cured.

Plaintiff alleges that on August 2, 1950, the State Compensation Insurance Fund of California served upon him copies of reports made by certain of these defendants (Shultz, Meier, Ferree and Gillis) which showed that the popliteal artery, and not one of the branches, had been damaged; that the X-ray taken on May 5, 1949, disclosed that ostitis, periostitis, 'possibly approaching the Osteomyelitis stage' had developed in the left leg and had infected the bones thereof; that on September 16, 1949, the infection had spread throughout the tibia and fibula of the left leg as far as the knee joint and that the knee joint and lower part of the femur were infected.

As to all defendants, it is alleged that plaintiff had no information or belief as to when his leg became infected; or as to which defendant was treating him at the time; that all defendants contributed to his infection and neglected to combat or cure the same; that none of the defendants ever consulted him concerning his case or the treatment thereof; that all the defendants were ...

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