Valentine v. Kaiser Foundation Hospitals

• Decision Date: 26 July 1961
• Citation: 15 Cal.Rptr. 26,194 Cal.App.2d 282
• Parties: Wallace J. VALENTINE and Kevin Bruce Valentine, an Infant, by Wallace J. Valentine, his Guardian ad Litem, Plaintiffs and Respondents, v. KAISER FOUNDATION HOSPITALS, Irving Bloom, Donovan J. McCune, Louis S. Santomierl, Permanente Medical Group, et al., Defendants and Appellants. Civ. 19559.
• Court: California Court of Appeals Court of Appeals

Page 26

15 Cal.Rptr. 26

194 Cal.App.2d 282

Wallace J. VALENTINE and Kevin Bruce Valentine, an Infant, by Wallace J. Valentine, his Guardian ad Litem, Plaintiffs and Respondents, v. KAISER FOUNDATION HOSPITALS, Irving Bloom, Donovan J. McCune, Louis S. Santomierl, Permanente Medical Group, et al., Defendants and Appellants.

Civ. 19559.

District Court of Appeal, First District, Division 1, California.

July 26, 1961.

Hearing Denied Sept. 20, 1961.

Carlson, Collins, Gordon & Bold, Robert Collins, Richmond, for appellants, Richard G. Logan, Oakland, of counsel.

William E. Ferriter, San Francisco, for respondents.

DUNIWAY, Justice.

This is another appeal in which the principal ground urged is that the court gave a res ipsa loquitur instruction that took from the jury the question as to whether the essential elements upon which the applicability of the doctrine is predicated had been proved by the plaintiffs. Other errors in instructing the jury are also claimed. We have concluded that there was error, but that under the peculiar facts of the case the error was not so prejudicial as to require a reversal.

I. Res Ipsa Loquitur.

The action is for medical malpractice, and is based upon the fact that the minor plaintiff, who was at the time but two days old, lost his glans penis as the result of a circumcision. No claim is made that the evidence does not support the verdict, nor is it claimed that the case is not one in which a proper res ipsa loquitur instruction should have been given. The objection is solely to the form in which the instruction was cast.

At plaintiffs' request, the court gave this instruction:

'You ladies and gentlemen are instructed that the general rule of law is that the mere happening of the accident, of and by itself, as set forth in plaintiff's complaint, or the mere fact that plaintiff brought this action of and by itself or that plaintiff suffered injuries of and by itself, do not of itself or themselves raise any presumption or inference against any of the defendants.

'From the happening of all the events involved in this case, however, as established by the evidence, there arises an inference that the proximate cause of the occurrence or accident was some negligent conduct on the part of the defendants. This inference is brought about by what is known in law as the res ipsa loquitur doctrine. That inference is, however, a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it will support a verdict for plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendants to rebut the inference by showing that it or he did, in fact, exercise the care and diligence required of them, or that the occurrence or accident occurred without being caused by any failure of duty on their part.

'In making such a showing, it is not necessary for the defendants to overcome the inference by a preponderance of the evidence. Plaintiff's burden of proving negligence by a preponderance of the evidence is not changed by the rule just mentioned. It follows, therefore, that in order to hold the defendants liable, the inference of negligence must have greater weight, more convincing force in the mind of the jury, than the opposing explanation offered by the defendants. If such a preponderance in plaintiff's favor exists, then it must be found that some negligent conduct on the part of the defendants was a proximate cause of the injury; but if it does not exist, if the evidence preponderates in defendant's favor, or if in the jury's mind there is an even balance as between the weight of the inference and the weight of the contrary explanation, neither having the more convincing force, then your verdict must be for the defendants.

'This instruction may appear to constitute an exception to the general rule that the mere happening of an accident, or the mere fact that plaintiff suffered injuries, or the mere fact that plaintiff brought this action, does not support an inference of negligence. This instruction, however, is based on a special doctrine of law which is to be applied under the evidence in this case.'

As 'defensive' instructions, proposed only if the court decided to instruct on res ipsa loquitur, the following instructions, suggested by appellants, were given:

'If you find from the evidence in this case that defendants have presented evidence which shows a satisfactory explanation of the injury, that is, a definite case [sic--cause] for the injury, in which there is no negligence on the part of the defendants, then I instruct you that the inference of negligence has been dispelled and you should not infer negligence from the happening of the injury in this case.'

'If you find from the evidence in this case that defendants have presented evidence which establishes to your satisfaction that defendants exercised such care as leads to the conclusion that the injury did not happen because of a want of ordinary care, but was due to some cause, although the exact cause may be unknown, then I instruct you that the inference of negligence has been dispelled, and you should not infer negligence from the happening of the injury in this case.'

Basically, appellants' position is that error was committed because the court told the jury that an inference of negligence of the defendants arises '[f]rom the happening of all the events involved in this case * * * as established by the evidence * * *.' They say that the evidence includes testimony which, if believed by the jury, would negative two of the three grounds upon which the doctrine of res ipsa loquitur rests and that, under these circumstances, the court should have defined the doctrine and the factual bases that are required to sustain it, and left it to the jury to determine whether those bases had been established, instructing it to apply the doctrine only if it found that those bases were established. They suggest that in instruction like B.A.J.I. 206A (Revised) should have been given. They rely upon such cases as Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915, 922, 53 A.L.R.2d 124: 'the jury * * * should have been permitted to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur were present'; Wolfsmith v. Marsh, 51 Cal.2d 832, 836, 337 P.2d 70; Roberts v. Bank of America, 97 Cal.App.2d 133, 137, 217 P.2d 129; Milias v. Wheeler Hospital, 109 Cal.App.2d 759, 762-764, 241 [194 Cal.App.2d 287] P.2d 684 and particularly Salgo v. Leland Stanford, etc., Bd. of Trustees, 154 Cal.App.2d 560, 572, 317 P.2d 170. These cases do sustain appellants' position, as do the following, each of which criticizes an instruction like the one given in this case, which is like old B.A.J.I. 206-B, 206-D, and the first paragraph of 206-C: Kite v. Coastal Oil Company, 162 Cal.App.2d 336, 344-345, 328 P.2d 45; Rayner v. Ramirez, 159 Cal.App.2d 372, 380-381, 324 P.2d 83; Black v. Partridge, 115 Cal.App.2d 639, 647-650, 252 P.2d 760; Fry v. Sheedy, 143 Cal.App.2d 615, 626, 300 P.2d 242; Hardin v. San Jose City Lines, Inc., 41 Cal.2d 432, 435-436, 260 P.2d 63; Gordon v. Aztec Brewing Co., 33 Cal.2d 514, 518-520, 203 P.2d 522.

It will be noted that the instructions given nowhere state the conditions necessary to bring the doctrine into play, as do old B.A.J.I. 206-C and revised B.A.J.I. 206-A. Those conditions are well established, and were recently stated by the Supreme Court as follows: 'The conditions requisite for the application of the doctrine of res ipsa loquitur are: (a) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (b) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (c) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' Wolfsmith v. Marsh, supra, 51 Cal.2d 832, 835, 337 P.2d 70, 72.

Appellants correctly contend that there is evidence in this case from which, if permitted by the instructions to do so, the jury could have found that condition (b) was not shown. They make the same contention as to condition (a), but, we think far less effectively.

The operation was performed by Dr. Bloom, and thereafter the child, Kevin, was examined by several other doctors.

There was clearly sufficient evidence to justify the giving of 'an' instruction on res ipsa loquitur. Condition (a) was supported by Dr. Bloom's testimony that the result was so unusual that it was the only one of which he had ever heard; it was likewise sustained by Dr. McCune's testimony that in thirty years of medical practice during which he indirectly witnessed thousands of circumcisions, he had only heard of two cases (and only one in which, as in this case, a Gomko clamp had been used) which had resulted in damage to the glans and that that case involved 'a wide breach of practice and judgment.' We think, too, that the jury could apply common knowledge, that in circumcision, one of the most ancient and widely performed operations in human history, loss of the glans (the tip or head of the penis) does not ordinarily occur in the absence of someone's negligence. Cf. Cavero v. Franklin, etc., Benevolent Soc., 36 Cal.2d 301, 308-311, 223 P.2d 471; Ybarra v. Spangard, 25 Cal.2d 486, 491, 154 P.2d 687, 162 A.L.R. 1258; Brown v. Shortlidge, 98 Cal.App. 352, 355, 277 P. 134; Bauer v. Otis, 133 Cal.App.2d 439, 444-445, 284 P.2d 133 and cases there cited; Ales v. Ryan, 8 Cal.2d 82, 95-99, 64 P.2d 409.

Condition (b) was supported by Dr. Bloom's testimony that all the instruments used in the operation were in his possession, when coupled with Dr. Santomieri's testimony that the condition of Kevin's penis was the end result of a "Previous operative procedure" and his testimony that in using those words he was referring to the circumcision.

Condition (c)...