Sinz v. Owens

A jury returned a verdict for $17,500 in favor of Rudy Sinz for damages occasioned by the medical treatment of Dr. Raymond L. Owens. Subsequently, the physician’s motion for a new trial was denied upon condition that Sinz consent to a reduction in the amount of damages to $10,000. Sinz refused to accept the reduction and a new trial was granted on the issue of damages alone. Dr. Owens has appealed from the judgment and Sinz has filed a cross-appeal from the order granting a new trial.

The first photographs were taken shortly after Sinz reached the hospital. According to Dr. Owens, because they showed good bone alignment, he applied a plaster cast. The photographs taken immediately after the cast was applied disclosed some angulation, but the doctor stated that he was satisfied with the results as shown by them. Photographs taken about 12 days later indicated further angulation and the absence of callus formation. When the cast was taken off, three months after the injury, the angulation was approximately 12 degrees and the callus formation still soft.

By the end of another two months, X-ray pictures showed that the angulation had increased to 19 degrees at the upper fracture and 5 degrees at the lower one. At the time of trial, the angulation was 30 degrees at the upper fracture and the same amount as before at the lower break.

To prove malpractice, Sinz called Dr. Allen F. Morrison as an expert. Dr. Morrison testified that the standard of practice in California is to use skeletal traction on a double comminuted fracture. He also declared that, regardless of the choice of treatment made by Dr. Owens when he first saw his patient, the X-ray photographs subsequently taken showed the need for some form of traction, and traction would have been feasible as late as the time when the cast was removed. Other evidence in the record is to the effect that, at the time of the accident, it was the general custom of physicians practicing in Lodi to refer cases requiring skeletal traction to a specialist in Stockton, about 12 miles away.

As grounds for reversal of the judgment, Dr. Owens contends that Dr. Morrison was not qualified to testify as to the standards of medical practice in Lodi. He also relies upon error in the instructions to the jury, and asserts that he was prejudiced by the submission of the X-ray photographs to the jurors for their inspection. In his appeal from the order conditionally denying a new trial, Sinz takes the position that because insufficiency of the evidence was not specified as a

The voir dire examination of Dr. Morrison shows that he was then practicing medicine in the town of Oakdale, about 27 miles south of Stockton. He testified that his practice was a general one and extended to Turlock, Modesto, and Escalón, the farthest of these places being approximately 40 miles south of Stockton. Lodi, where Dr. Owens had his offices, is about 12 miles north of Stockton. Oakdale and Turlock are smaller than Lodi; Modesto is somewhat larger.

The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (Trindle v. Wheeler, 23 Cal.2d 330 , 333 [ 143 P.2d 932 ]; Pearson v. Crabtree, 70 Cal.App. 52 [ 232 P. 715 ], noted in 14 Cal.L.Rev. 70 ; 7 Wigmore on Evidence § 2090 [a], p. 453), unless the conduct required by the particular circumstances is within the common knowledge of the layman. (Engelking v. Carlson, 13 Cal.2d 216 [ 88 P.2d 695 ].) And competency of an expert “is in every case a relative one, i. e. relative to the topic about which the person is asked to make his statement. ” (2 Wigmore on Evidence [3d ed.] § 555, p. 634.)

The criterion in this regard is not the highest skill medical science knows; “the law exacts of physicians and surgeons in the practice of their profession only that they possess and exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances” (41 Am.Jur. [Phys. & Surg., § 82] p. 201). The proof of that standard is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as “occupational experience—the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood.” (2 Wigmore on Evidence [3d ed.] § 556, p. 635.) He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured.

In California the standard has been variously limited to general medical custom in the “same locality”' or “vicinity” (Trindle v. Wheeler, 23 Cal.2d 330 [ 143 P.2d 932 ]; McGuire v. Baird, 9 Cal.2d 353 [ 70 P.2d 915 ]; Taylor v. Fishbaugh, 26 Cal.App.2d 300 [ 79 P.2d 174 ]; Rasmussen v. Shickle, 4 Cal. App.2d 426 [ 41 P.2d 184 ]; Howe v. McCoy, 113 Cal.App. 468 [ 298 P. 530 ]; Hopkins v. Heller, 59 Cal.App. 447 [ 210 P. 975 ]), or “the same or similar community” or “locality” (Thomason v. Hethcock, 7 Cal.App.2d 634 [ 46 P.2d 832 ]; Dameron v. Ansbro, 39 Cal.App. 289 [ 178 P. 874 ]; Priestley v. Stafford, 30 Cal.App. 523 [ 158 P. 776 ]), and in some cases ■ the “same” locality is used interchangeably with the “same or similar” locality. (Warnock v. Kraft, 30 Cal.App.2d 1 [ 85 P.2d 505 ]; McLennan v. Holder, 1 Cal.App.2d 305 [ 36 P.2d 448 ].) The distinction between the two statements of the requirement, insofar as technical interpretation is concerned, is obvious, and the parties, at considerable length, have argued as to the effect of the language used. However, in the majority of cases wherein the qualification as to locality has been stated, it constitutes mere dictum. Emphasis on strict interpretation of either statement of the rule in this regard, tends to obscure the sole purpose which justifies it.

It has been said that the theory supporting the rule that the expert must be familiar with the degree of care used in the particular locality'where the defendant practices “is that a doctor in a small community or village, not having the same opportunity and resources for keeping abreast of the advances in his profession, should not be held to the same standard of care and skill as that employed by physicians and surgeons in large cities.” (Warnock v. Kraft, 30 Cal.App.2d 1 , 3 [ 85 P.2d 505 ].) In earlier days, when there was little intercommunity travel, the courts required personal experience with the practice of physicians in the particular community where the plaintiff was treated as the basis of the expert’s testimony concerning the degree, of care which should have been "used. But the law recognizes that “The duty of a

But Sinz seeks to advance this development beyond permissible bounds. He argues that “ [i]t is a matter of both common knowledge and common sense that the standards of medical practice should be, and in fact are, the same in towns and cities within a large geographic area. For example, the San Joaquin Valley, wherein both Lodi and Oakdale are situated. This court may well take judicial notice of the fact ...” However, the San Joaquin Valley is an area containing two cities of more than 50,000 population and communities ranging from that number to the smallest way stations. This merely emphasizes the fact that geographical generalizations or localizations do not provide a practical basis for measuring “similar circumstances.” In any event, the question as to. what constitutes similar circumstances is not one solely for judicial notice of an appellate court. It presents an issue which concerns the competency of a person called to testify as a witness, and must be decided upon a consideration of all relevant evidence.

With regard to the standard of care in Lodi, Dr. Sanderson, who was qualified from occupational experience to compare the standard of care in both places, as a witness for Dr. Owens stated: “I would say that [the] standard in Lodi ... is just as good as [that of] the average doctor in Stockton.” Dr. Morrison, testifying for Sinz, was not personally acquainted with conditions in Lodi but he said that although “usually the smaller the community the lower the plane of care,” as to treatment of fractures of this particular nature, the same standard of care prevails throughout California.

Although this evidence is somewhat vague, the qualification of an expert witness is a question for the sound discretion of the trial court and its ruling will not be disturbed upon appeal

This conclusion is not based exclusively upon geographical proximity, and necessarily there can be no hard and fast rule laid down as a test for experience requisite as a basis for testimony as to custom and practice. But where all of the towns in which a physician practices are tributary to a city, such as Stockton, and there is testimony that the degree of care at the place of treatment is equal to that in the city, the evidence is sufficient to support a finding of similar circumstances. The essential factor is knowledge of similiarity of conditions; geographical proximity is only one factor to be considered.

Two cases upon which Dr. Owens relies heavily are McNamara v. Emmons, 36 Cal.App.2d 199 [ 97 P.2d 503 ], and Bickford v. Lawson, 27 Cal.App.2d 416 [ 81 P.2d 216 ]. In the McNamara case, “Plaintiffs produced two physicians as witnesses who had never practiced in Ontario and knew nothing of the standards of practice there. Neither did they know that the communities of Ontario and San Bernardino, where they practiced, were similar or had similar standards of prac tice.” (Supra, p. 207.) Aside from this failure of the witnesses to testify to the conditions in the two communities, there was no independent evidence of similarity of conditions. The two physicians testified to the standard of care in San Bernardino, a city of some 50,000 population, for the purpose of establishing the liability of a physician practicing in Ontario, a town of less than 15,000. Although the decision was rested on other grounds and the discussion as to standard of care pertained only to the issue of prejudice resulting from other errors, the opinion shows that the minimum requirements of the rule as to similarity of conditions were not met. The distance between the two towns was stated as affecting the physician’s duty to travel from one place to the other to continue treatment, but it was not considered as a factor in determining similarity of conditions.

Emphasizing occupational experience as the dominant qualification, that is, the witness must have a familiarity with the existing practice under the circumstances and not merely that he practice medicine or live in the area, are the cases of McGuire v. Baird, 9 Cal.2d 353 [ 70 P.2d 915 ]; Taylor v. Fishbaugh, 26 Cal.App.2d 300 [ 79 P.2d 174 ]; and Soady v. Washburn, 114 Cal.App. 82 [ 299 P. 560 ]. In the McGuire and Taylor cases there ivas no question as to the practice of the witness in the vicinity, but the court pointed to a lack of knowledge of the manner in which other doctors treated the condition presented to the defendant. In Soady v. Washburn, supra, the witness was a retired naval officer living in San Francisco. An objection to his testimony as to the standard of care was properly sustained, for it appeared that he had never engaged in civil practice in California or elsewhere.

The more recent California cases upon the question of competency of a doctor in one community to testify as to the standard of care at another place, although phrasing the rule in terms of “same” or “similar” locality, have shown a clear tendency to depart from the earlier geographical limitations of the rule. Thus in Sales v. Bacigalupi, 47 Cal.App.2d 82 [ 117 P.2d 399 ], the ruling admitting the testimony of a doctor practicing in Oakland as to medical treatment in San Francisco was upheld with comment upon “the close proximity of the two cities and the metropolitan character of the entire area.” And in Pierce v. Paterson, 50 Cal.App.2d 486 [ 123 P.2d 544 ], a general statement that the witness was familiar with the degree of care throughout Alameda County was held sufficient although apparently, there was no testimony of familiarity with conditions in the town where the treatment was given.

The leading California case on this point is Lewis v. Johnson, 12 Cal.2d 558 [ 86 P.2d 99 ], wherein the testimony of doctors practicing in Los Angeles was held admissible as to the standard of care in Long Beach. The court there stated

The second contention of Dr. Owens is based on the italicized portion of the following instruction: “By undertaking professional service to a patient, a physician and surgeon impliedly represents that he possesses, and it is his duty to possess, that degree of learning and skill possessed by physicians and surgeons of good standing, practicing in the same locality. If he undertakes such a service in a special branch of medical, surgical or other healing science, and if at that time and in the same locality there are members of his profession who specialize in, and limit their practice to, that particular branch of the healing profession, it is his duty to possess that degree of learning and skill ordinarily possessed by physicians and surgeons of good standing who engage in that special practice in the same locality.” It is argued that this amounts to imposing upon a general practitioner the duty of a specialist.

' This instruction is No. 214 of California Jury Instructions, Civil (BAJI) and the editors of that work have made certain modifications in it. (See Cal. Jury Instructions, Civil [3d ed.], 1948 Poteket Parts, pp. 169-73.) An excellent brief by amicus curiae points up the objection by noting that the instruction fails to include the element that the physician “discovered or should have discovered” that the injury required expert treatment before he is under any special duty. A sounder instruction is suggested by Benson v. Dean, 232 N.Y. 52 [ 133 N.E. 125 , 127], in which the court said: “If under the circumstances a reasonably careful skillful general practitioner . . . would have suggested the calling into consultation of a . . . specialist, the defendant was negligent for failing to do so.” Such an instruction would clearly avoid the far reaching implications of the instruction now under review, and would not impose an unreasonable degree of skill upon the ordinary practitioner. Further, the suggested instruction would allow the jury to find the defendant guilty of negligence if be failed to recommend a specialist when the

For these reasons, the court should not have given the instruction in the quoted form, but the error was not prejudicial within the meaning of section 4% of article VI of the Constitution. Sinz offered no testimony to prove any standard of skill or care above that of the general practitioner. On cross-examination of Dr. Sanderson, the only orthopedic specialist to testify, he was asked several questions as to how he would have treated Sinz, but the inquiry was not directed to the general standard of skill of specialists. Further, Dr. Sanderson was an adverse witness and his answers in this regard were contrary to the position of Sinz.

The record shows a “very complicated fracture in .the leg” and “one of the most difficult fractures that we can treat.” Although there was testimony that,.in the circumstances, the ordinary standard of care would have been either to apply skeletal traction or to call in a specialist to do so, the evidence must be considered in connection with the undisputed fact that, at the time of the accident and first X-ray photograph, the leg was in reasonably good alignment. But the successive pictures showed progressive increase in angulation and poor callus formation. According to Dr. Morrison, at the time the cast was taken off, traction still could have been applied and the angulation corrected. The failure of Dr. Owens to recognize the inadequacy of his treatment is strong, evidence of a breach of the standard of care testified to by Dr. Morrison-. Under these circumstances, no prejudice resulted from the challenged instruction.

Apparently the complaint that the trial court allowed the jury to view X-rays taken of the injured leg at the time of the injury, without a qualifying instruction limiting consideration of them to the sole purpose of illustration, has been abandoned by Dr. Owens in the presentation of his appeal to this court. However, the record shows that they were properly introduced in evidence and he and the experts who testified for both of the parties interpreted them for the jury. There was no reason for any special cautionary instruction in regard to this evidence and neither Hollis v. Ahlquist, 142 Wash. 33 [ 251 P. 871 ], nor Vale v. Campbell, 123 Ore. 632

The question presented by the cross-appeal of Sinz is whether the trial court properly granted a new trial upon his refusal to accept a reduction in the judgment from $17,500, the amount of damages fixed by the jury, to $10,000. The trial judge, although including a reference to insufficiency of the evidence in a memorandum opinion, did not specify in the order that the motion was granted upon that ground. Under section 657 of the Code of Civil Procedure, Sinz contends, because of this omission, there is a conclusive presumption that the order was not based upon insufficiency of evidence and must have been made on the ground of “ [e]xeessive damages, appearing to have been given under the influence of passion and prejudice.’' (Code Civ. Proe., § 657[5].) It is argued, in the language of Casaretto v. DeLucchi, 76 Cal. App.2d 800 [ 174 P.2d 328 ], that: “ [I]f the evidence before the trial court is conflicting and there is substantial evidence to sustain the award, no right to grant a new trial on the ground of excessiveness of the verdict exists where insufficiency of the evidence is not also specified as a ground of the order.”

Dr. Owens relies upon a line of eases which, after analyzing the basis for allowing a new trial because of excessiveness of the verdict due to passion and prejudice, realistically conclude that such an order “necessarily is granted on the ground of the insufficiency of the evidence to sustain a verdict for the amount awarded by the jury.” (Griffey v. Pacific Electric Ry. Co., 58 Cal.App. 509 , 513 [ 209 P. 45 ]; Meinberg v. Jordan, 29 Cal.App. 760 , 762 [ 157 P. 1005 ].) In view of the provision in section 657 of the Code of Civil Procedure that insufficiency of the evidence must be specified in writing in the order “otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground,” there is perhaps a certain anomaly in the Legislature’s failure to include excessiveness of damages in the proviso. This difficulty has been commented upon and criticized (see note, 12 So.Cal.L.Rev. 501, 503), but the point is not of controlling importance here, because the same rule governing appellate review applies to both grounds.

The language quoted from Casaretto v. DeLucchi, supra, is not a correct statement of the law and is disapproved as directly in conflict with the rule laid down in Dreyer v. Gyriachs, 112 Cal.App. 279 , 283 [ 297 P. 35 ] (approved in

Applying that rule to the facts of the present case and considering the indefinite and conflicting evidence upon the degree of disability suffered by Sinz, the lack of a clear showing that the leg could have been completely cured in the exercise of due care, and his life expectancy, it cannot be said that the trial court abused its discretion in granting the new trial upon the ground of excessive damages.

The order granting new trial upon the issue of damages alone is affirmed.

Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.

I agree that the judgment against the defendant physician should be affirmed, but I think the order granting the new trial must be reversed for there is no showing of passion or prejudice in the damage award and the trial court cannot reweigh the evidence in passing on a motion for a new trial on the ground of excessive damages. Moreover, I believe any physician practicing in this state is qualified as an expert in a malpractice case in any part of the state.

Turning first to defendant’s motion for a new trial, it appears that while the motion for a new trial was made upon all the grounds specified in the statute, the order granting the new trial was “on the question of damages alone.” (The plaintiff was given an opportunity by the order to have the new trial denied by accepting a lesser sum for damages, but

The statutory law on the subject is clear. It is provided that a new trial may be granted on all or part of the issues for the thereafter mentioned causes, part of which are: “5. Excessive damages, appearing to have been given under the influence of passion or prejudice; 6. Insufficiency of the evidence to justify the verdict or other decision, or that it is against law; .... When a new trial is granted, on all or part of the issues, upon the ground of the insufficiency of the evidence to sustain the verdict or decision, the order shall so specify this in writing and shall be filed with the clerk within ten days after the motion is granted; otherwise, on appeal from such order it will be conclusively presumed that the order was not based upon that ground. The court may direct a party to prepare the order.” (Code Civ. Proe., § 657.) It should be obvious that insufficiency of the evidence and excessive damages are two separate and distinct grounds for granting a new trial. There is no justification for blending them together, that is, treating insufficiency of the evidence as part of the excessive damage ground. The latter ground is confined to passion or prejudice and that alone. The insufficiency of evidence ground is likewise separately treated. Indeed, it is treated in detail. When a new trial is granted on the latter ground “on all or part of the issues” the order must so specify. Plainly, if a new trial as to damages alone is granted it is on part of the issues, and if insufficiency of the evidence is the reason or cause for such partial new trial, the order must so state. On the other hand, where the new trial is granted as to damages alone, but insufficiency of evidence is not the ground, then the only ground is passion or prejudice, and such ground must be examined without weighing the evidence or resolving conflicts therein against the verdict. No other interpretation of section 657 is reasonable or even

“Second, the Legislature, in enacting Section 657(5), said a motion for new trial might be based upon excessive damages, appearing to have been given under the influence of passion or prejudice. Applying the well known doctrine of expressio unius est exclusio alterius, it may well be argued that excessive damages in such a case was the only basis for the motion upon this ground, and that this was the legislative intent. It would seem difficult to reconcile this construction with the statement in Meinberg v. Jordan [ 29 Cal.App. 760 , 762 ( 157 P. 1005 )], to the effect that, because the court declared the damages were excessive, it need not mean that the trial court was of the opinion that the verdict was the result of passion or prejudice, but might be construed to mean that the trial court was not satisfied that the finding of the jury as to the extent of the damages suffered was supported by the evidence. But the declaration found in Sweet v. Gray [ 141 Cal. 63 ( 74 P. 439 )], that the evidence is insufficient to justify the verdict or other decision, is a ground distinct from that of damages appearing to have been given under the influence of passion or prejudice, seems to uphold the literal wording of the code provision.

It should be noted that it is not possible for the trial court in passing on a motion for a new trial on any ground other than insufficiency of the evidence to consider the latter at all. Indeed, by basing the order granting a new trial on any other ground, the trial court holds that the evidence is sufficient. So this court said: “When the order [granting a new trial] is made upon a ground other than that of insufficiency of the evidence, the court impliedly holds that there is sufficient evidence to support the verdict, and ‘on appeal from such order it will be conclusively presumed that the order was not

The only case that has given consideration to the requirement that insufficiency of evidence be specified is Casaretto v. DeLucchi, 76 Cal.App.2d 800 , 814 [ 174 P.2d 328 ], where the court reaches the correct result, stating: “The motion for a new trial on the judgment based on the issues raised by the cross-complaint was made on the ground of excessive damages, insufficiency of evidence and errors in law occurring at the trial. The trial court, it will be remembered, granted this motion for a new trial unless the DeLuechis agreed to a reduction in damages from $6,500 to $500. The trial judge did not specify insufficiency of the evidence as a basis of his order, so that that ground must be disregarded. (Code Civ. Proc., § 657.) No ground at all was specified as the basis of the order. It is obvious, however, that the basis of the order granting the new trial must have been excessive damages in view of the provision of the order that if the DeLuechis would accept a reduction to $500 the motion would be denied. However, the trial court’s power in this respect is much more limited than it is when the order is based on insufficiency. Section 657, subdivision 5, of the Code of Civil Procedure, provides that a new trial may be granted on the ground of ‘excessive damages, appearing to have been given under the influence of passion or prejudice. ’ A new trial may not be granted on this ground merely because the verdict seems large, but only when it appears to have been given under the influence of passion or prejudice. The trial court may interfere with the verdict on this ground only where the verdict is so disproportionate to any reasonable limit of compensation warranted by the facts as to shock the sense of justice. Thus if the evidence before the trial court is conflicting, and there is substantial evidence to sustain the award, no right to grant a new trial on the ground of excessiveness of the verdict exists where insufficiency of the evidence is not also specified as a ground of the order. These principles are all well settled. (See cases collected 20 Cal.Jur., p. 99 et seq., § 64 et seq.) ”

There is nothing in the record in this case to indicate that the jury was motivated by passion or prejudice and, therefore, the order granting the motion cannot be sustained on this ground.

The foregoing is quoted with approval in Flock v. J. C. Palumbo Fruit Co., 63 Idaho 220 [ 118 P.2d 707 , 716]; Hodgson v. Bigelow, 335 Pa. 497 [ 7 A.2d 338 , 344].

We can take judicial notice of the fact that there are but four medical schools in California which meet the requirements prescribed by the State Board of Medical Examiners for the education and training of medical students in this state and that no one is eligible for admission to practice medicine in California unless he is a graduate of a medical school which meets the requirements prescribed by said board and passes an examination given by the Board of Medical Examiners of California or of some other state entitled to recognition in this state on the basis of reciprocity. (Mann v. Board of Medical Examiners, 31 Cal.2d 30 [ 187 P.2d 1 ].) It seems obvious, therefore, that the education and training of medical students who are eligible to practice medicine in California is a matter of some uniformity and that the qualifications of a physician and surgeon to practice in California does not depend upon the locality in which he is engaged in practice, but upon the education and training which he has received in institutions in which the method and scope of instruction and the technique in training are substantially uniform. It should follow, therefore, that the standard of practice of physicians and surgeons in California should be sufficiently uniform throughout the entire state to permit a physician and surgeon in one locality to qualify as an expert witness in any other locality, even though he is not engaged in practice in the locality in which he is called upon to testify. It is true, of course, that physicians and surgeons in some localities may not have the equipment or facilities for diagnosis and treatment of human ailments which are possessed by physicians and surgeons in other localities, but this is a factor which the

In view of the fact that there are cross-appeals in this case- and the entire record is before us for review, I would reverse the order granting a new trial and affirm the judgment in favor of plaintiff.