Tangora v. Matanky

This is an appeal by plaintiffs from a judgment entered on a jury verdict for defendant in an action by the surviving husband and minor son of Pauline Tangora for medical malpractice which, it is claimed, resulted in her death. A motion for new trial was made, insufficiency of the evidence being one of the grounds urged, and denied.

Plaintiffs appeal on the following grounds: (1) Insufficiency of the evidence to support the verdict, (2) error in form and manner of submission of interrogatories, (3) error in instruction given and refused, and (4) error in admission of evidence.

Sufficiency of the Evidence.

A. The Facts.

Appellants, with commendable frankness, cite and quote

Appellants contend that here the evidence is insufficient as a matter of law to support a judgment in favor of defendant. When such a contention is made “The appellate court starts with the presumption that the evidence sustains each finding of fact [citations], and the burden rests upon appellant ‘to demonstrate that there is no substantial evidence to support the challenged findings.’ [Citations.] ” (Davis v. Lucas, 180 Cal.App.2d 407 , 409 [ 4 Cal.Rptr. 479 ].) Appellants’ review of the evidence lacks the objectivity with which we must view it and to a considerable degree deals with conflicts in the evidence. As Witkin puts it (3 Witkin, Cal. Procedure, p. 2250) : “The test ... is not whether there is substantial conflict, but rather whether there is substantial evidence in favor of respondent.”

The following is a résumé of the evidence viewed in the light most favorable to the defendant. The deceased, Pauline D. Tangora, was 32 years of age at the time of her death. She had been in good general health all of her life except for some female condition not related to any of the issues here. She was first seen by defendant on January 23, 1960, for injuries received in an automobile accident. He diagnosed contusions, lumbo-sacral strain, whiplash and cerebral concussion and gave her physiotherapy and prescribed medicines for pain, muscle relaxation and sleeping. On January 25th, 26th and 27th she was given physiotherapy and cervical traction. She was seen on January 28, 1960, and defendant noted slight improvement but generalized discomfort and abdominal cramping. That night she sneezed and coughed at home. The following morning she complained to her husband that she was coming down with a cold. The morning of January 29, 1960, she went to defendant’s office arriving about 10 a. m. Defendant saw her in the treatment room and inquired how she was feeling at which time she complained of more severe cramping abdominal pain, of generalized discomfort and that

B. Res Ipsa Loquitur

At plaintiffs’ request the jury was instructed on res ipsa loquitur by the giving of BAJI Instruction No. 206 (Revised) , preceded by BAJI Instruction No. 214-W, as modified, to the effect that the jury must first find that the injury was of a kind which ordinarily does not occur in the absence of negligence before applying BAJI Instruction No. 206.

Appellants contend that respondent failed to rebut an inference of negligence arising from the application of the doctrine of res ipsa loquitur. This contention assumes that the evidence necessitated the jury to find that the res ipsa loquitur inference arose in this case. The Supreme Court said in Danner v. Atkins, 47 Cal.2d 327 [ 303 P.2d 724 ]: “It is ordinarily a question for the fact finder, first, whether facts which give rise to the res ipsa loquitur inference of negligence actually exist and, second, if the inference arises, whether it prevails or is overcome.”

In Siverson v. Weber, 57 Cal.2d 834 , the Supreme Court said at page 839 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ]: “The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation. [Citations.] ... To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible.”

Surabian v. Lorenz, 229 Cal.App.2d 462 at 466 [ 40 Cal.Rptr. 410 ] tersely states the same rule as follows: “The test of the applicability of res ipsa loquitur as established by Siverson is twofold. To prove that the result rarely occurs, standing alone, is not enough. It must also be shown

C. Alleged Acts of Negligence.

Appellants, in addition to relying on res ipsa loquitur, claim that substantial uncontradieted evidence proved a number of specific acts of negligence. Their primary contention is that the symptomatology of the deceased did not warrant the diagnosis made by the respondent and, therefore, it was negligent to prescribe and administer penicillin. More specifically they contend that the deceased at most had the symptoms of a common cold and to give penicillin on a prophylactic basis is malpractice. While it is generally conceded that administration of penicillin prophylaetically for a cold virus only is not indicated, yet the uncontradieted testimony of respondent of the various symptoms upon which he diagnosed a “flu syndrome” sustained a diagnosis of infection for which the administration of penicillin is not malpractice. As previously stated, before administering the penicillin respondent ascertained that prior administration of penicillin had not resulted in any untoward results. Dr. Hewitt, a well qualified expert, called by respondent, testified in answer to a comprehensive hypothetical question embracing deceased’s symptoms that it was within the standard of practice to administer penicillin.

Appellants’ claim that to give penicillin intravenously, as distinguished from intramuscularly, is malpractice is answered by the uncontradieted testimony of respondent that the peni

Under the second general category of alleged negligence, i.e., treating the anaphylactic shock, appellants list five claimed violations of the standard of practice. From the evidence as a whole it appears that doctors live in deadly fear of anaphylactic shock and that when it happens it is a catastrophic event requiring immediate and drastic action to attempt to combat it. It further appears from the evidence that there is no one procedure in combating such a shock that may be said to be within the standard of practice but that varying procedures are acceptable as good practice. Here the respondent immediately and correctly diagnosed the shock and immediately undertook the procedures previously stated to combat it. The testimony of Dr. Hewitt was that the procedures undertaken and carried out by respondent were in accordance with the standard of practice of reputable physicians practicing in the community. We conclude there was substantial evidence to support the verdict.

Interrogatories

At the beginning of his opening argument to the jury at the close of the evidence, counsel for plaintiffs pointed out that the first issue in the case was negligence and said that “In this ease you must break that down into three categories, generally speaking, that is, the decision to give penicillin, secondly, the treatment of anaphylactic shock, and thirdly, cardiac massage. So there are three general issues under negligence, giving penicillin, treating anaphylactic shock, and treating cardiac arrest.” Before defendant commenced his argument and out of the presence of the jury, the trial judge advised counsel he was thinking of addressing three special interrogatories to the jury as follows: “Was there negligence in administering penicillin; was there negligence in treating shock; was there negligence in treating the heart arrest.” Counsel for defendant said he would have no objection and counsel for plaintiffs did not voice any objection but said it was discretionary with the court. The interrogatories were prepared by the court and counsel for plaintiffs, without having made previous objection to their form, read them to the jury in his closing argument and following such reading he said to the jury: “Now, I think the Court will likewise indicate to you that if your answer to any one of those three, giving penicillin, treating anaphylactic shock, treating cardiac

Appellants' contention that the court abused its discretion “in determining that special findings should be submitted to the jury after both counsel had made their final argument" is not sustained by the record. As previously pointed out the court indicated its intention of so doing at the close of plaintiffs’ opening argument and plaintiffs’ counsel had a copy of the interrogatories at the beginning of his closing argument. Here neither party was caught by surprise by the submission of the interrogatories by the court as part of its instructions to the jury and plaintiffs discussed the interrogatories in argument just as they discussed certain instructions to be given. The submission of interrogatories by the court is discretionary as is the time of such submission provided it is not later than the rendition of the general verdict. Cf. Vivion v. National Cash Register Co., 200 Cal.App.2d 597 , 602 [ 19 Cal.Rptr. 602 ]; Fresno Canal etc. Co. v. Warner, 72 Cal. 379 , 381 [ 14 P. 37 ].

Appellants’ contention that the phraseology of the interrogatories was inaccurate, unfair, unplain, and in effect directed a verdict for respondent is unconvincing. Appellant argues that, as phrased, the second and third interrogatories compelled negative answers to the question “Was the defendant negligent in treating, etc.” for the reason that it was not contended defendant was negligent in the fact of treating the shock and heart but was negligent in the manner of such treatment. In the first place, the interrogatories were virtually paraphrased from plaintiffs’ opening argument that “there are three general issues under negligence, giving penicillin, treating anaphylactic shock, and treating cardiac arrest." To argue that jurors would misconstrue the interrogatories as argued by plaintiffs is to deny them even a modicum of intelligence after days and days of evidence relating to manner in which defendant treated the shock and heart arrest.

Appellants’ further contention that the court erred in refusing to give the instruction, heretofore footnoted, submitted by the plaintiffs after the jury had been instructed and had deliberated for several hours is not tenable. Plaintiffs knew the exact form of the interrogatories before commencement of the closing argument and made no request for any

Appellants’ principal thrust as to the interrogatories is that their submission to the jury together with the colloquy between the court and a member of the jury “did away with the doctrine of res ipsa loquitur” upon which the jury had been instructed by restricting them to a consideration of what appellants refer to as three isolated instances of activity. As we have previously pointed out, there was substantial evidence from plaintiffs’ own witness from which the jury could have found that the conditions necessary to an application of the doctrine of res ipsa loquitur had not been established.

It is pure speculation to argue that the special interrogatories did away with the res ipsa loquitur instruction because the jury may never have applied the res ipsa rule at all for lack of proof of the necessary foundational facts. Additionally, the coiirt gave BAJI Instruction No. 2 that no single instruction is to be singled out but that the jury is to consider all the instructions and to regard each in the light of all the others.

Instructions

Appellants requested BAJI Instruction No. 101-B dealing with standard of care. This instruction as submitted is entirely inapplicable to a malpractice action. The court modified it by substituting the word “physician” for the word “person.” Appellants contend this eliminated from consideration the conduct of defendant’s employees but we are not directed to any evidence of negligence of any assistant or employee of defendant to which the instruction could relate in its unmodified form. Appellants’ contention of error in instructing on burden of proof, the giving of BAJI No. 180 and the refusal to give BAJI No. 35-A is untenable. Failure to give BAJI No. 214-Q (New) and No. 214-P (Revised), dealing with free and informed consent, was not error as there was no evidence that the standard of practice in the community required that a doctor, before giving a patient an injection of penicillin, advise the patient that in rare instances anaphylactic shock may occur and result in death. Respondent testified that in fact it ivas not the practice. Refusal to give BAJI Instruction No. 101-C was not error. This is a general instruction on negligence and not applicable to a malpractice action. The instructions given adequately covered the standard of care in a malpractice action. Nor was it error to refuse

Errors in Admission and Rejection of Evidence

Answering a question as to the purpose of a report given to an attorney for deceased in connection with the automobile accident, the respondent testified the attorney asked him if the death was due to the injuries sustained in the accident “because there was a problem of collection on insurance in relation to double indemnity if the death was due to the accident.” Plaintiffs’ motion to strike as hearsay was denied. No request was made that the jury disregard the reference to insurance; no motion for mistrial was made; no instruction was submitted to disregard any reference to insurance and no further allusion was made to insurance. Having made no attempt to cure any conceivable prejudice at the trial, we are not impressed by this belated claim of error.

One of the principal grounds of alleged malpractice was defendant’s failure to administer adrenalin or epinephrine intravenously following the anaphylactic shock. In addition to witnesses’ testimony on this subject, plaintiffs introduced a bottle of penicillin and an instruction sheet as to its use, which, after warning against its use intravenously, stated that resuscitative drugs such as epinephrine should be “readily available for emergency intravenous administration.” Over plaintiffs’ objection defendant introduced a bottle of epinephrine the instructions on which read “Intramuscular only.” While there was no evidence that defendant had used that particular bottle yet he testified in substance that a substantially similar label was on bottles of all brands of epinephrine. It appears to us that this was proper evidence in rebuttal of any inference from the statement in the penicillin brochure as to how epinephrine should be administered.

Plaintiffs contend they were denied the right to cross-examine defendant on the use of neutrapen in treating anaphylactic shock. Defendant was in fact examined at length on the use of this drug and why he did not use it in this ease. We are not referred to any ruling of the court nor do we find one which restricted the proper cross-examination of defendant on this subject.

Plaintiffs’ final claim of error as to evidence is the alleged refusal of the court to compel respondent to answer questions

Conclusion.

The trial of this ease, including selection and deliberation of the jury consumed nine court days. The evidence covers approximately 1,111 pages of reporter’s transcript. Plaintiffs were vigorously represented by counsel obviously well versed on every medical problem involved. Tragic as it may be that death resulted from the administration of a commonly used and highly beneficial drug, the evidence, notwithstanding some conflicts, clearly sustains the verdict that the death was not proximately caused by any negligence of defendant in prescribing and administering the penicillin nor on his treatment of the anaphylactic shock and heart arrest or in any other way.

The appeals from the order denying appellants’ motion to tax costs and from the order granting respondent’s motion to strike affidavits filed in support of appellants’ motion for new trial are dismissed, having been expressly abandoned by appellants. Judgment affirmed.

Shinn, P. J., and Files, J., concurred.

A petition for a rehearing was denied January 21, 1965, and appellants’ petition for a hearing by the Supreme Court was denied February 17, 1965. Mosk, J., was of the opinion that the petition should be granted.