Tomei v. Henning

Decision Date18 September 1967
Docket NumberS.F. 22511
Citation67 Cal.2d 319,62 Cal.Rptr. 9,431 P.2d 633
CourtCalifornia Supreme Court
Parties, 431 P.2d 633 Lupe TOMEI, Plaintiff and Appellant, v. Berthol HENNING, Defendant and Appellant

Belli, Ashe, Gerry & Ellison and Jack G. McBride, San Francisco, for plaintiff and appellant.

Peart, Baraty & Hassard, Salvatore Bossio, John I. Jefsen and Allan H. Fish, San Francisco, for defendant and appellant.

TRAYNOR, Chief Justice.

Plaintiff appeals from the part of a judgment entered against her upon a jury verdict on her complaint to recover damages for medical malpractice. Defendant appeals from the part of the judgment entered upon the verdict against him on his cross-complaint to recover the value of his professional services and reimbursement for payments of other medical expenses made by him on plaintiff's behalf.

Defendant performed a hysterectomy on plaintiff. During the operation he accidentally sutured her right ureter in two places. The accident was not discovered until four days later. A urologist attempted corrective surgery, which failed, and thereafter it became necessary to remove plaintiff's right kidney.

At the trial defendant admitted that he had unintentionally sutured plaintiff's ureter. He presented evidence, however, that the misplacing of the sutures and the failure to discover it during the operation were an unavoidable accident and not the result of negligence on his part. Both sides introduced expert testimony on the questions whether defendant should have identified the ureters by sight or touch to avoid them during the operation and whether before closing the wound he should have conducted tests to determine whether the ureters had been injured. Defendant testified that he took none of these precautions. All the experts agreed that damage to the ureters is a hazard of a hysterectomy that should always be present in the mind of the surgeon and that such damage can occur no matter how carefully the operation is conducted. On direct examination, plaintiff's expert, Dr. Edmund F. Anderson, a specialist in obstetrics and gynecology, was asked, 'Doctor during the course of a hysterectomy, where the ureter is tied off in two places, and the abdominal wound is closed without exercising any technique to determine the condition of the ureters, would you consider that the exercise of proper care and skill of a surgeon?' He answered, 'No, I would not.' On cross-examination, Dr. Anderson testified that surgeons generally try to stay away from the ureters as much as possible, avoiding any contact with them. Consequently, the passage of a catheter through the ureter to test it is not done in all cases, but only when the surgeon suspects some damage to the ureter. Dr. Anderson further testified that there is considerable risk of involving the ureters during a hysterectomy: 'Q. And the reason for this concern is because gynecologists and surgeons understand that the urinary tract can be damaged no matter how careful the surgeon is; isn't that true, doctor? A. That does happen, yes. Q. It happens in a certain, almost recognized percentage of cases, doesn't it, doctor? A. Yes, I guess so.'

Plaintiff contends that the court erred in refusing to give a conditional res ipsa loquitur instruction. 1

'As a general rule, res ipsa loquitur applies where the occurrence of the injury is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible. In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied both on common knowledge and on expert testimony.' (Clark v. Gibbons (1967) 66 A.C. 409, 419, 58 Cal.Rptr. 125, 132, 426 P.2d 525, 532; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 376 P.2d 561; Siverson v. Weber (1962) 57 Cal.2d 834, 836, 22 Cal.Rptr. 337, 372 P.2d 97.) Since the res ipsa loquitur instruction permits the jury to infer negligence from the happening of the accident alone, there must be a basis either in common experience or expert testimony that when such an accident occurs, it is more probably than not the result of negligence. (Davis v. Memorial Hospital, supra, at p. 817, 26 Cal.Rptr. 633, 376 P.2d 561; Siverson v. Weber, supra, at p. 836, 22 Cal.Rptr. 337, 372 P.2d 97; Cavero v. Franklin, etc., Benevolent Soc. (1950) 36 Cal.2d 301, 309, 223 P.2d 471.) Since the question whether, in the light of past experience, the accident in this case was probably the result of negligence is not a matter of common knowledge among laymen, expert testimony is necessary to determine whether a probability of negligence appears from the happening of the accident. When such testimony is relied upon to establish that probability, it need not be in any particular language. It need only afford reasonable support for an inference of negligence from the happening of the accident alone. Dr. Anderson's testimony affords such support in this case. Thus, he testified that the happening of the accident itself, namely, the suturing of a ureter in two places and closing the wound without exercising any technique to determine the condition of the ureters, was not the exercise of proper care by a surgeon performing a hysterectomy.

Although Dr. Anderson's testimony on cross-examination that there are unavoidable risks to the ureters in...

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