Tangora v. Matanky

• Decision Date: 24 December 1964
• Citation: 231 Cal.App.2d 468,42 Cal.Rptr. 348
• Parties: Sam Bruce TANGORA, a Minor, by and through his Guardian ad Litem, Sam G. Tangora; and Sam G. Tangora, Plaintiffs and Appellants, v. Seymour R. MATANKY, M.D., Defendant and Respondent. Civ. 27318.
• Court: California Court of Appeals Court of Appeals

Page 348

42 Cal.Rptr. 348

231 Cal.App.2d 468

Sam Bruce TANGORA, a Minor, by and through his Guardian ad Litem, Sam G. Tangora; and Sam G. Tangora, Plaintiffs and Appellants, v. Seymour R. MATANKY, M.D., Defendant and Respondent.

Civ. 27318.

District Court of Appeal, Second District, Division 3, California.

Dec. 24, 1964.

Rehearing Denied Jan. 21, 1965.

Hearing Denied Feb. 17, 1965.

Harney, Drummond & Fitzwater, David M. Harney and Robert E. Ford, Los Angeles, for appellants.

DeForrest Home, North Hollywood, for respondent.

RICHARDS, Justice, pro tem. ^*

This is an appeal by plaintiffs from a judgment entered on a jury verdict for defendant in an action by the surviving husband and minor son of Pauline Tangora for medical malpractice which, it is claimed, resulted in her death. A motion for new trial was made, insufficiency of the evidence being one of the grounds urged, and denied.

Plaintiffs appeal on the following grounds: (1) Insufficiency of the evidence to support the verdict, (2) error in form and manner of submission of interrogatories, (3) error in instructions given and refused, and (4) error in admission of evidence.

SUFFICIENCY OF THE EVIDENCE.

A. THE FACTS.

Appellants, with commendable frankness, cite and quote Estate of Bristol, 23 Cal.2d 221, at 223, 143 P.2d 689, at 690 that "It is an elementary * * * principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury." Substantial evidence is 'that which has probative force on the issues and is of ponderable legal significance.' (Walton v. Bank of California, 218 Cal.App.2d 527, 540, 32 Cal.Rptr. 856, 864.)

Appellants contend that here the evidence is insufficient as a matter of law to support a judgment in favor of defendant. When such a contention is made 'The appellate court starts with the presumption that the evidence sustains each finding of fact [citations], and the burden rests upon appellant 'to demonstrate that there is no substantial evidence to support the challenged findings.' [Citations.]' (Davis v. Lucas, 180 Cal.App.2d 407, 409, 4 Cal.Rptr. 479, 480.) Appellants' review of the evidence lacks the objectivity with which we must view it and to a considerable degree deals with conflicts in the evidence. As Witkin puts it (3 Witkin, Cal. Procedure, p. 2250): 'The test * * * is not whether there is substantial conflict, but rather whether there is substantial evidence in favor of respondent.'

The following is a resume of the evidence viewed in the light most favorable to the defendant. The deceased, Pauline D. Tangora, was 32 years of age at the time of her death. She had been in good general health all of her life except for some female conditions not related to any of the issues here. She was first seen by defendant on January 23, 1960, for injuries received in an automobile accident. He diagnosed contusions, lumbo-sacral strain, whiplash and cerebral concussion and gave her physiotherapy and prescribed medicines for pain, muscle relaxation and sleeping. On January 25th, 26th and 27th she was given physiotherapy and cervical traction. She was seen on January 28, 1960 and defendant noted slight improvement but generalized discomfort and abdominal cramping. That night she sneezed and coughed at home. The following morning she complained to her husband that she was coming down with a cold. The morning of January 29, 1960 she went to defendant's office arriving about 10 a. m. Defendant saw her in the treatment room and inquired how she was feeling at which time she complained of more severe cramping abdominal pain, of generalized discomfort and that her menstrual period had started. Defendant examined her and found her temperature elevated, tender lymph nodes and that she had a reddened and injected pharynx and congestion in her bronchial tubes indicated by sonorous or noisy rales heard in the stethoscope. She also told defendant that on the evening previous she had begun to feel a generalized aching, sore throat, started coughing, and feeling feverish and that these symptoms had become more intense that morning. On the basis of her statement and his examination, defendant made a diagnosis of 'flu syndrome' and decided to give her penicillin, not to combat the influenza virus but to combat secondary infection, specifically strep and pneumococcus which are very common in the throat and to prevent any development from occurring from the infection with the secondary bacterial invaders, such as septicemia. The symptomatology was not just a common cold, but also an infection. Defendant then asked her whether she was allergic in general; whether she was allergic to penicillin to which she stated she had had penicillin several times without any signs of allergy; asked her if she ever had asthma, hay fever or hives to all of which she answered in the negative. Respondent then injected penicillin intramuscularly, either in the arm or buttock. He instructed her to go home, have complete bed rest, take aspirin and fluids and return in three days. Within ten minutes after the injection, deceased complained of feeling very ill and retched without vomiting. While being taken by defendant to a treatment room she started to have a convulsion and collapsed, which defendant immediately diagnosed as anaphylactic stock, defined as an unusual or exaggerated reaction of the organism to foreign protein or other substances. She was carried into the treatment room, placed on a table and within approximately one minute defendant gave her an intramuscular injection of adrenalin. At this time she still had a pulse and was breathing. Immediately thereafter she was given an injection of Benadryl intramuscularly and one hundred per cent oxygen was started by mask after an oral pharyngeal airway had been placed in her mouth and down the throat to the larynx to hold the tongue forward and allow air to pass back and forth. She was also receiving artificial respiration but her heart stopped between 10 and 15 minutes after she started having the anaphylactic shock. Within 30 seconds after her heart stopped, Dr. Adler, who was assisting defendant, performed a thoracotomy or chest incision and massaged the heart while defendant continued the artificial respiration. This was continued for twenty to thirty minutes but with the exception of a few feeble contractions of the heart muscle, there was no response and at 11:15 she was pronounced dead.

B. RES IPSA LOQUITUR.

At plaintiffs' request the jury was instructed on res ipsa loquitur by the giving of BAJI Instruction No. 206 (Revised), preceded by BAJI Instruction 214-W, as modified, to the effect that the jury must first find that the injury was of a kind which ordinarily does not occur in the absence of negligence before applying BAJI Instruction No. 206.

Appellants contend that respondent failed to rebut an inference of negligence arising from the application of the doctrine of res ipsa loquitur. This contention assumes that the evidence necessitated the jury to find that the res ipsa loquitur inference arose in this case. The Supreme Court said in Danner v. Atkins, 47 Cal.2d 327, 303 P.2d 724: 'It is ordinarily a question for the fact finder, first, whether facts which give rise to the res ipsa loquitur inference of negligence actually exist and, second, if the inference arises, whether it prevails or is overcome.'

In Siverson v. Weber, 57 Cal.2d 834, at page 839, 22 Cal.Rptr. 337, at page 339, 372 P.2d 97, at page 99, 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. [Citations.] * * * 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 more likely the result of negligence than some cause for which the defendant is not responsible.'

Surabian v. Lorenz, 229 Cal.App.2d 462, at 466,* 40 Cal.Rptr. 410, at 412, tersely states the same rule as follows: 'The test of the applicability of res ipsa loquitur as established by Siverson is twofold. To prove that the result rarely occurs, standing alone, is not enough. It must also be shown that the result is not an inherent risk of the operation or treatment.' Here both medical experts called by appellants themselves testified that in a small percentage of cases an injection of penicillin results in an anaphylactic shock such as that suffered by the deceased and that it occurs in the absence of any negligence of the doctor. Substantial evidence in this case establishes that an anaphylactic shock, while rare, is an inherent risk in the use of penicillin. Apposite is the observation of the court in Horace v. Weyrauch, 159 Cal.App.2d 833, at page 838, 324 P.2d 666, at page 669, 64 A.L.R.2d 1276, where, in discussing a subcutaneous injection of a dye useful in radiology, which caused plaintiff's flesh to slough off, said: 'All the testimony is to the effect that the reaction here involved is one of the risks of such an injection. * * * Thus, there would seem to be no basis for the doctrine of res ipsa loquitur.' We conclude that there was substantial evidence upon which the jury could find that the facts did not exist which would give rise to the res ipsa loquitur...