Markart v. Zeimer

This is an action for malpractice growing out of the employment of defendants by the plaintiff to perform a surgical operation on him for the cure or removal of a hernia in the region of the right groin.

The complaint was in two counts. The first count charges negligence in these particulars, “that the said defendants then and there so negligently, carelessly and unskillfully performed said operation in and upon plaintiff in this, that after they had made an incision, cut into and opened the body of plaintiff that they closed the inguinal canal through which the cord containing the blood vessels and nerves passed connecting the right testicle with the rest of the body so tight and close that it interfered with and stopped the circulation of the blood and the action of the nerves between the said right testicle and other portions of the body, and that they so further performed said operation in such a negligent, careless and unskillful manner that when the wound caused by said incision and operation commenced healing and did heal, the inner walls adhered and grew fast to the bowels of said plaintiff, and the said defendants further so negligently and carelessly handled and controlled the instrument with which they made said incision, and performed said operation, that an incision was

[1] Yet these issues were definitely submitted to the jury by the court in giving its instructions. By instruction “H” the jury was told that “if you find from all the evidence that the defendants or either of them, in operating upon the plaintiff for hernia . . . closed the inguinal canal in the plaintiff so tight and close that the natural circulation of blood or the natural action of the nerves were stopped or interfered with, between plaintiff’s right testicle and the rest of his body,” then that their verdict should be for the plaintiff. By instruction “I” the jury was told that if they found “from all the evidence and as instructed, that the defendants or either of them in operating upon plaintiff for hernia” from lack of skill and care did so in such a way that “the inner walls of plaintiff’s abdomen adhered and grew fast to the bowels of said plaintiff” then that they must find for plaintiff. As stated there was no evidence of either of these conditions or of their having resulted from defendants’ work in performing the operation. The submission of these issues to the jury without evidence to support them was error. [2] By instruction “D” the question of the degree of skill and care exercised by defendants in removing plaintiff’s testicle was submitted to the jury. This was without the issues. The complaint charged the defendants with a trespass in removing the testicle without his consent and against his expressed direction. No

[3] The instruction that a “physician is responsible for an injury done to a patient through the want of proper skill and care of his assistant, if any,” is also incorrect in requiring of a surgeon “proper” skill and care in the performance of an operation. All that is required of him is that he have the degree of skill ordinarily possessed by reputable physicians or surgeons practicing in his locality. (Hesler v. California, Hospital Co., 178 Cal. 764 [ 174 Pac. 654 ].)

[4] The contention is made by appellants that the second count of the complaint states no cause of action for the removal of plaintiff’s testicle without his consent.

We think that it does and that if this issue alone had been submitted to the jury a finding upon it in favor of plaintiff might have been sustained.; But it was submitted in connection with other issues which should not have been submitted. As therefore it cannot be told upon which issue the verdict was based or as to what degree they both figure in the finding, the verdict cannot be permitted to stand. These errors will necessitate a retrial of the case.

Other questions presented by the record may be briefly discussed in so far as they may arise when the case is again tried.

The complaint charged, in addition to the matters about which no evidence was offered, that the defendants in performing the operation on plaintiff did so so negligently “that an incision was made in the right testicle of plaintiff with a sharp instrument, thereby seriously and dangerously wounding and injuring him.” Little was made of this specific charge and the only evidence in relation to it was that plaintiff had felt it, and that one of the defendants had admitted the cutting.

The great bulk of plaintiff’s testimony was that in performing the first operation, the defendants operated so unskillfully and negligently that they cut the spermatic cord or artery which nourished and which supplied circulation to plaintiff’s right testicle, by reason of which it died and had to be removed. This does not appear to be within the issues. Plaintiff contends that the testicle and the cord or artery

The evidence which plaintiff offered upon this point tended to show that plaintiff was afflicted with a hernia on the right side in the region of the groin; that it had existed for about two years; that it was not bothering him any at the time of the operation, and that it had never given him any trouble. After the operation plaintiff’s right spermatic artery or spermatic cord was found to be severed, under conditions from which it might properly have been inferred that it had been cut by defendants, while performing the operation. [5] Plaintiff’s case is founded upon the claim that the operation was negligently performed. This negligence must be made to appear from the evidence in the case. The facts must establish such a condition as would warrant the jury in saying that as a matter of common knowledge the cutting of the cord complained of was an act of negligence, or it must be shown by expert testimony that this act resulted from the failure of the defendants to possess and use that degree of care and skill ordinarily possessed and used by physicians and surgeons in good standing practicing in the same locality. (Perkins v. Trueblood, 180 Cal. 437 [ 181 Pac. 642 ]; Hesler v. California Hospital Co., 178 Cal. 764 [ 174 Pac. 654 ]; Houghton v. Dickson, 29 Cal. App. 321 [ 155 Pac. 128 ]; Ewing v. Goode, 78 Fed. 442 ; Loudon v. Scott, 58 Mont. 645 [ 12 A. L. R. 1487 and note, 194 Pac. 488 ].)

Expert evidence is almost universally required in such cases as this. (See cases above, also, Carson v. Jackson, 281 Fed. 411 .) But none was offered at the trial. Plaintiff insists that the jury had a right to find without expert testimony that for a surgeon employed to operate upon what appeared to be a simple hernia, to cut the spermatic cord or artery was so palpably inexcusable as to disclose negligence in itself; that the injury was so unrelated to the operation and so outside of the thing the surgeons were employed to do, that, as a matter of common knowledge, the jury might find that the cutting was unskillful and negligente Without cit

As to whether or not this case comes within the rule of these cases, or as to whether or not the plaintiff’s contention in this particular is sound, we make no decision, as on another trial the evidence may be different or the plaintiff may see fit to put the matter beyond question by producing expert evidence. It might be observed in passing that by his instructions plaintiff did not ask to have his case submitted to the jury on this theory.

Plaintiff’s chief contention, however, is that the absence of expert testimony in this case is supplied by evidence of admissions of the defendant given at the trial. The testimony as to what these admissions were, can be briefly stated without omitting any of their substance. The plaintiff testified to a conversation had with defendant Dr. Heppner after the operation in which Dr.- Heppner “said to me they had a little trouble by the operation, and injured the cord, but heal all right. If you lose a testicle, one testicle just as good as two.” He said that he referred to the spermatic cord. Again the doctor said: “Yes, we had cut or injured the testicle; it heals, it will not hurt me further and will heal up.” Continuing, the plaintiff testified that he did not ask them whether they had injured the cord or not. “No they said it freely they injured the cord.” Question: “Both doctors said that they injured the cord? A. Yes.” Again he repeated: “They just said, ‘We had a little trouble and injured the cord.’ ” Asked who said that, he answered: “Dr. Heppner and Dr. Zeimer said, ‘We injured the cord, that is we put the injured part back, injured the cord.’ ” There was other evidence in relation to the tying of the ends of the cord with catgut before returning them to the body and of some matters of detail and apparent aggravation, but not within the pleadings nor of consequence as admissions of lack of skill or care.

A Mrs. Wilkie, a friend of plaintiff, testified to a conversation she had with Dr. Heppner, after the operation. To her he said, “Mr. Markart was getting along fine; and fur

Another witness, Prank Philippi, testified as to a conversation he had had with Dr. Heppner in which he advised him not to be operated on by any Stockton doctor, and that then, in speaking of the operation on plaintiff, he said: “We made a wrong operation on Mm.” Dr. Heppner said that because of that operation Markart, the plaintiff, had lost his testicle. Continuing he said: “He did not make any statements at all as to why it was removed he said it was a misoperation you know.”

Giving these statements as testified to by plaintiff and Mrs. Wilkie an implication and a meaning most favorable to the plaintiff, they constituted an admission by the defendants that in performing the operation for hernia, which they were employed to do, the defendants had cut and severed the spermatic cord or artery.

[6] But this adds nothing to plaintiff’s case. He had already testified to that fact himself or given evidence from which it might be inferred. What we want to know is whether or not such a mischance is one of the hazards of an operation for hernia such as plaintiff’s was, and whether or not, in the exercise of reasonable skill and care as such is ordinarily possessed and exercised by surgeons practicing their profession in the city of Stockton and vicinity, such a cutting or severance would ever occur. The admissions do not go this far.

[7] The admissions testified to by the witness Philippi were likewise insufficient. They related only to Dr. Heppner, and were to the effect that the operation on plaintiff was a “wrong operation.” Dr. Heppner “said it was a mis-operation, you know.” This is not an admission that the operation was carelessly or negligently performed. It is at most an admission that he did not have sufficient skill to perform the operation properly. But it clearly was not an admission that he did not have the degree of skill, care and learning possessed and used by other surgeons practicing their profession in his locality; and that was all the

[11] As a consequence, while they were competent as evidence of such facts as they admitted, they did not supply

The judgment is reversed with directions to the lower court to permit the plaintiff to amend his complaint in the particulars herein referred to if he should so desire.

Finch, P. J., and Hart, J., concurred.

A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 17, 1924.

All the Justices concurred.