Valdez v. Percy

• Decision Date: 02 May 1950
• Citation: 35 Cal.2d 338,217 P.2d 422
• Court: California Supreme Court
• Parties: VALDEZ v. PERCY et al. L. A. 21356.

Page 422

217 P.2d 422

35 Cal.2d 338

VALDEZ v. PERCY et al.

L. A. 21356.

Supreme Court of California, in Bank.

May 2, 1950.

Rehearing Denied June 1, 1950.

Gibson, Dunn & Crutcher and Philip C. Sterry, Los Angeles, for appellant.

David C. Marcus, Los Angeles, for respondent.

SHENK, Justice.

The defendant has appealed from a judgment for the plaintiff in an action for damages for alleged malpractice in amputating the plaintiff's right breast.

The action was commenced in December, 1934, against the County of Los Angeles, James F. Percy, Chief Surgeon of the County Hospital, Franklin D. Hankins, one of the resident physicians of the hospital, and various employees of the hospital. The complaint was drawn to tender issues on the theory of assault and battery, that is, that the amputation was without the plaintiff's consent, and on the theory of negligence. The plaintiff dismissed the action as against some of the defendants. A former trial resulted in the granting of motions for nonsuit and directed verdicts, which were sustained on appeal as to all defendants except Doctors Percy and Hankins. Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142. As to them the judgment was reversed. Doctor Percy died before the second trial which took place about fifteen years after the alleged malpractice, with Doctor Hankins as the sole defendant. This trial was before the Court without a jury.

The defendant contends that the evidence is insufficient to support the findings and judgment. The record discloses the following:

Doctor Percy was a specialist in cancer surgery and treatment. The defendant Hankins had received his license to practice surgery and medicine in 1932, and as a resident physician of the hospital was assigned to assist Doctor Percy.

On January 30, 1934, the plaintiff with her husband, Dr. Valdez, consulted Dr. Percy for an examination of an enlarged lymph gland in the right axilla (armpit). She was about thirty-eight years of age, five feet five inches in height, weighed 170 pounds, and was in good health. She was examined in the clinic by Doctors Percy and Hankins. The clinical examination revealed the enlarged lymph gland about the size of a large olive and several smaller lymph nodes in the axilla, but did not reveal any lumps or lymph nodes in the breasts which were large and pendulous. A report of the clinical examination was sent to the Malignancy Board of the Hospital for recommendation. On suspicion of carcinoma (cancer) of the breast the board suggested a biopsy (surgical removal and microscopical examination of a rapid-frozen section of the enlarged lymph node in the axilla), on the theory that the gland might be aberrant (wandering) breast tissue and for removal of the breast if necessary.

Pursuant to the board's recommendation the plaintiff reported to the hospital for surgery on March 1, 1934. She and her husband signed a consent to the contemplated biopsy and other surgery deemed advisable or necessary. At 8:30 of that morning the plaintiff was under anesthesia in surgery on the tenth floor of the hospital. Dr. Percy opened the skin under the right axilla and removed the growth. That operation consumed about twenty minutes. The removed tissue was immediately sent to the surgical laboratory on the fifteenth floor. After rapid freezing, a frozen section on a slide was sent by dumb waiter to the main laboratory on the second floor where it was subjected to microscopical examination. The hospital records do not clearly show that the report which accompanied the gross specimen indicated the source of the tissue. The technician in the surgical laboratory testified that it said 'breast tissue' and that she so reported to the main laboratory. In ten or fifteen minutes an oral eport was received in surgery, stating 'carcinoma' or 'carcinoma of the breast.' After consultation with Dr. Valdez who was sitting in the gallery or amphitheatre, Doctors Percy and Hankins proceeded to remove the breast. Doctor Hankins performed the operation, Dr. Percy assisting and addressing the audience of students. Following the carcinoma report the field of operation was outlined by incising the skin around the breast and other portions to be removed. Throughout the operation, including the preliminary incising, the so-called Percy cautery was employed which involved the use of a thermal instrument or knife attached to an electrical heating element and heated to approximately 1500 degrees fahrenheit. The theory of the cautery method was that cancerous and other cells coming in contact with the instrument were destroyed by the heat, whereas under the cold knife method the destruction did not take place. The preliminary incising of the skin occupied between ten and twenty minutes.

Immediately after the oral report of 'carcinoma' had been sent to surgery by the main laboratory technician, he telephoned the operator in the surgical laboratory, questioned the nature of the frozen section as breast tissue, and requested that the gross specimen be sent to him. In about twenty minutes after the incising was started a corrected written report was received in surgery stating, 'Lymphoma, possibly Hodgkin's Disease.' Lymphoma is an enlargement of a lymph gland. Hodgkin's Disease is malignant lymphoma for which there is no known cure. The record clearly indicates that the corrected...