Surabian v. Lorenz

• Decision Date: 31 August 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Elma SURABIAN, Plaintiff and Appellant, v. Walter LORENZ, Defendant and Respondent. Civ. 354.

Page 410

40 Cal.Rptr. 410

229 Cal.App.2d 462

Elma SURABIAN, Plaintiff and Appellant, v. Walter LORENZ, Defendant and Respondent.

Civ. 354.

District Court of Appeal, Fifth District, California.

Aug. 31, 1964.

Rehearing Denied Sept. 25, 1964.

Hearing Denied Oct. 28, 1964.

James C. Janjigian, Fresno, for appellant.

J. Hampton Hoge, Jr., and Herbert Chamberlin, San Francisco, for respondent.

STONE, Justice.

Plaintiff appeals from a judgment entered upon a verdict returned pursuant to an order directing a verdict. The order directing verdict and the verdict being nonappealable, the purported appeals therefrom are dismissed. (Code Civ.Proc. § 963.)

Plaintiff had been a patient of defendant prior to December 11, 1959, when defendant, preparatory to filling a tooth in her lower left jaw, hypodermically administered an anesthetic by a mandibular injection. The anesthetic, ravocaine, in general use by dentists in the community, was purchased from an accredited pharmaceutical concern in individual containers called 'carpules' which are discarded after use.

Defendant injected ravocaine in plaintiff's mouth with normal results on March 25, May 14, and May 16, but after the December 11 injection plaintiff immediately began to feel uncomfortable, experiencing a severe headache, a rapid pulse, and a feeling of faintness. Defendant quickly inserted a temporary filling in her tooth and then took her to his recovery room, where she lay down. As her headache did not abate, she had defendant call her husband, who took her to the office of her personal physician. Medication was administered by her physician, additional medication was prescribed, and plaintiff was sent home. Her condition did not improve, and the following morning her physician placed her in a hospital, where she remained three days. Upon her return home, she remained in bed for two weeks, and although she suffered some debilitation she was able to be up. Her gradual recovery was complete in about six months.

The lower jawbone is not porous and anesthesia must be accomplished by injecting an anesthetic solution in the area of an opening in the lower jaw, the 'mandibular foramen,' through which the nerves from the teeth leave the jawbone and enter the skull. A buccal fat pad covered by the lining or mucous membrane of the mouth lies in a depression near the foramen. The hypodermic needle is inserted through the mucous membrane into the tissue of the pad until it reaches the jawbone, small amounts of the anesthetic being ejected as the needle is inserted. When the needle reaches the bone it is withdrawn slightly and the remaining anesthetic injected into the area of the foramen or nerve center.

The key question on this appeal is whether the court erred in ordering a directed verdict for defendant. Plaintiff contends that under the doctrine of res ipsa loquitur the jury should have been allowed to determine whether defendant explained or met the inference of negligence raised by the doctrine. Plaintiff reminds us at the outset that in determining an appeal from a judgment entered on a directed verdict it is our duty to view the evidence most favorably to plaintiff, to draw all inferences in favor of plaintiff which can be reasonably drawn, and to resolve all conflicts in the evidence in plaintiff's favor. However, in our view the crucial rule affecting this review is that this court must consider all uncontradicted evidence adduced by either party. It appears that plaintiff has neglected to distinguish between a presumption and an inference in relation to an appellate court's duty in passing upon an appeal from a judgment entered pursuant to an order for directed verdict. The distinction was clarified by the Supreme Court in Leonard v. Watsonville Community Hospital, 47 Cal.2d 509, at page 517, 305 P.2d 36, at page 41 wherein the Court said:

'Accordingly, it is the general rule that a presumption favorable to a plaintiff cannot be so dispelled by the testimony of a defendant given pursuant to section 2055 because a defendant called under that section is not treated as the plaintiff's witness. [Citations.] On the other hand, as we have seen, an inference can be dispelled as a matter of law by evidence produced by either party.'

With the foregoing language in mind, we turn to plaintiff's argument as to what the evidence reflects. The thrust of her argument is that she made out a prima facie case of res ipsa loquitur because it is common knowledge that a mandibular injection does not ordinarily result in a reaction similar to that suffered by her, unless someone has been negligent. She relies upon Siverson v. Weber, 57 Cal.2d 834, at page 836, 22 Cal.Rptr. 337, 372 P.2d 97, in contending that common knowledge may be relied upon to invoke res ipsa loquitur and raise an inference of negligence. The Supreme Court held,

'In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied on both common knowledge and the testimony of expert witnesses.'

In the light of the facts surrounding a mandibular injection of an anesthetic, it is questionable that plaintiff has brought her case within the 'common knowledge' doctrine. There was no infection, tearing of the tissue, or similar result that courts have held to be within the common knowledge doctrine. Rather, plaintiff suffered a reaction to the anesthetic, ravocaine, one of the drugs of the novocaine family commonly used as an oral anesthetic. We doubt that it is common knowledge whether or not this result rarely occurs.

Were we to suppose that plaintiff has proved a result which in the light of common knowledge rarely occurs, nonetheless plaintiff is precluded from relying upon the res ipsa loquitur doctrine by the rationale of the Siverson case, supra. At page 839 of 57 Cal.2d, at page 339 of 22 Cal.Rptr., at page 99 of 372 P.2d, Siverson, the Supreme Court said:

'The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation. (Wickoff v. James, 159 Cal.App.2d 664, 669, 324 P.2d 661; Salgo v. Leland Stanford etc. Bd. Trustees, 154 Cal.App.2d 560, 569-571, 317 P.2d 170; Dees v. Pace, supra, 118 Cal.App.2d 284, 289, 257 P.2d 756.) Language to the contrary in Valentine v. Kaiser Foundation Hospitals, 194 Cal.App.2d 282, 287, 15 Cal.Rptr. 26, and McDonald v. Foster Memorial Hospital, 170 Cal.App.2d 85, 102, 338 P.2d 607, is disapproved.

'To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is morely likely the result of...