Soest v. Balsinger

Respondent Soest brought the instant action in malpractice to recover damages from appellant, a physician and surgeon, for alleged disfigurement and permanent deformity resulting from operations performed by him on respondent’s nose.

This appeal is prosecuted from the judgment for $5,000 which was entered pursuant to the verdict of the jury, as well as from an order denying appellant’s motion for a new trial.

The record herein discloses that respondent had for some time suffered from severe headaches and had difficulty in breathing, and that two doctors had advised her that she needed a submucous resection of the nose in order to relieve such trouble. On May 28, 1940, she consulted appellant regarding her condition and after examining her nose by pinching it on the bridge, probing it with a letter opener and looking into it, appellant told her that her “septum was as crooked as a letter S”; whereupon plans were made for an operation to be performed by appellant on May 30, 1940, in his office. At this time appellant urged respondent to permit

. Without making any further examination, appellant operated on respondent’s nose on May 30, 1940, first applying a local anesthetic through needles introduced into the nose, and in addition to the so-called submucous resection, he removed the hump on respondent’s nose and the sear on her forehead. The nose was securely packed with gauze to prevent bleeding and to ward off any infection from the outside, and respondent returned to appellant’s office daily for a check-up. After about a week had elapsed, the packing was removed and it was found that the nose had become infected. During this time respondent suffered from sore-throat, swollen lymph glands and severe throbbing pains; her nose was swollen and tightly closed, and her eyes were swollen shut. To relieve this condition, appellant incised both nostrils which resulted in a discharge of pus from the nose.

From the day of the operation on May 30 until the middle of August, 1940, respondent followed appellant’s instructions in the care of her nose and reported to him frequently for check-ups. On August 19th, appellant performed a second operation on respondent’s nose, which was then completely closed. This second operation involved the taking of sixteen stitches in the nose and thereafter it was necessary for respondent to insert a rubber tubing in order to keep the nose open. Within a few days after this second operation, respondent was cleaning her nose at home, as instructed by appellant, and discovered a hole in the septum. Three such holes developed, over which incrustations formed, making it impossible for respondent to keep her nose either open or clean. Shortly after the second operation, appellant left for Chicago, and upon his return to Los Angeles on October 6, 1940, respondent complained to him of the holes in the septum, the misshaped rims of the nostrils and other ill-effects of the operations. Appellant then for the first time admitted the infected condition of the nose, and told respondent another operation would be necessary. Again in November of 1940, appellant urged respondent to submit to a further operation, but she refused owing to her lack of confidence in him.

The complaint herein alleged, among other things, that appellant “carelessly and negligently removed too much of the septum of the nose, leaving therein a hole too large to heal; that he cut and removed from the nose a large portion

‘ ‘ That through lack of . .. and cleanliness of said defendant who did not use protective rubber gloves in performing said operations, through lack of ordinary proper medical skill, and through lack of proper precaution, cleanliness and carelessness on the part of said defendant while performing said operations, the nose of said plaintiff became inflamed, swollen, festered and infected; that by reason of said negligence and carelessness of said defendant, as aforesaid, and as the direct result thereof, and as the sole and only cause of said carelessness and negligence said plaintiff suffered and still suffers intense pain and great mental distress and anxiety and the nose of said plaintiff has become sore, wholly disfigured and is permanently deformed.”

In his answer appellant denied generally and specifically the allegations of the complaint, alleged that he was a physician and surgeon restricting his practice to that branch of medicine known as plastic surgery; and as a defense alleged that if respondent “sustained any results not anticipated, or any infection, or otherwise, as represented or described in her complaint, such condition resulted from Plaintiff’s acts, carelessness and improper exposure, which was not under the control or care of this answering defendant, and for which this defendant is in nowise responsible.”

Appellant doctor testified in his own behalf to the effect that he examined respondent’s nose and “found that in the right nostril the septum extended down here aways and occupied about one-third of the right nostril, and on the left, about three-quarters of an inch to one inch above the nostril margin I found a recessed mucous membrane with the septum

“This morning, on examination in this region ... it looked like as though there might be a little opening of a sebaceous gland, or cyst, or something of that sort, but on bending this over, evidently in the line of incision there, there had been a small opening that either did not heal from the infection that you might put the point of a toothpick into. As I indicated here, this was my line of incision for the straightening out of this curved septum. . . . The first opening is about in this position two-thirds up from the palate and just in the line of incision back of the columella. ... If I did not bend that over that wouldn’t show. There was a hole there, but doing that you could detect—you could stick a small toothpick through that point, probably at the point of incision. . . . Now, this is a minute opening. I was led to believe the other day that you could stick your finger through it. Here is your palate in here. Bight on the floor where I made this incision, there is a little area, I judge almost an inch up from the entrance of the nostril and that opening is about this shape, but not so big. It isn’t round at all. It would indicate

probably that the mucous membrane here had not quite healed together but it is something that could be readily brought down. It is just a tiny opening. It isn’t a quarter of an inch. It is between one-eighth and a quarter of an inch and about 1/32 of an inch wide. When I put an applicator in one nostril and look at, the other, I could just see my white cotton shining through that. The third opening is yet to be discovered. Q. In respect to . . . the second opening, as you have illustrated it here, it is sort of lipshaped, is that right? ... A. Yes. It should go just where this incision came down right there and here is the other pin point.”

Regarding the second operation performed on August 19, 1940, appellant testified: “It was done as a temporary procedure because both the patient and I had in view the doing of a corrective operation resulting from the infection, so this was merely done as a minor thing until some future date when the complete job could be done. ’ ’

Appellant was asked: “Is there anything you could have done from your experience as a physician and surgeon that would have prevented—that you could have done that would have prevented the infection that this lady contracted ? ’ ’ His reply follows: “A. No, I believe not. Q. Is there anything from your experience as a physician and surgeon that you did not do, or that you did do, that you can attribute the little scars and dimples to that have been described on a number of occasions? A. There was no avoiding it. Of course, the scars are the result of my opening it, but I had to open it for the infection, if that is the answer. ’ ’

The nurse who assisted appellant at the first operation testified that when the packing was removed from respondent’s nose about a week after the operation, a purulent discharge followed the removal of such packing; that when appellant removed the packing he wore neither a smock nor a cap and was smoking cigarettes; that respondent asked appellant what was wrong, and he replied that everything was all right, that there was nothing wrong. This witness also testified that she had a conversation a day or two after the packing was removed from respondent’s nose at which time appellant blamed said witness for a slip-up in technique. “He rather blamed me for not sterilizing the instruments properly—not carrying out the technique. ’ ’

Appellant contends that respondent failed to offer in support of her charge of malpractice any expert opinion that he failed to disport himself in his treatment and operative

Bespondent produced three physicians and surgeons, who gave their expert opinions, to the following effect:

Dr. Ginsberg was asked: “Doctor, what is the usual procedure in an operation of this kind, in this vicinity, in the vicinity of Los Angeles, with reference to examinations, or examination of the patient prior to an operation of this kind ? A. There is an external and internal examination of the nose to examine, to see the quality of his skin. We diagnose the deformity of the nose. We see that there are no lesions, or infections on or around the inside of the nose and it is wise to examine the urine for sugar. Some surgeons do make blood examinations, others don’t. . . . Q. And you state that you check the matter of any lesions in the nose as well as the deformity. Now explain to the Court and jury what you mean by that. A. There might be ulcers inside the nose that would complicate surgery and these might be syphilitic, which might complicate the surgery. The nose might have a very bad perforation which would make a plastic procedure more or less unadvisable. . . . Q. Now, in a ease where an operation upon the nose was performed on May 30,1940, and subsequently on, let us say, August 13th, or 19th . . . another operation was performed while there was still an infection, would that be proper procedure? ... A. ... If there is an infection present no surgery should be performed.”

Dr. Kiskadden, a physician and surgeon specializing in plastic and reconstructive surgery, who examined respondent subsequent to the operations on her nose, testified that he found three holes in the septum of respondent’s nose; that “two of them are rather low down and can be plainly visible by just looking through her nostrils. The third one is further back and one has to look deeply into her nostrils to see it. . . . The small hole is probably % of an inch across and the next one is probably % and the larger one is probably /¡

The third physician and surgeon to testify for respondent was Dr. Rambo, specializing in eye, ear, nose and throat and rhino-plastics. He was asked: “Q. Are you acquainted with

An examination of the record, including the reporter’s transcript from which the above excerpts are quoted, reveals ample evidence of medical experts from which the jury could have inferred that appellant did not use that degree of care and skill exercised by doctors in the same locality.

Moreover, as heretofore pointed out, the nurse assisting at the first operation testified that appellant charged her with failure to properly sterilize the instruments he used on respondent’s nose in performing that operation; and the record clearly shows that appellant performed the second operation at a time when respondent’s nose presented a dirty field of infection.

“Where the results of negligence on the part of a physician or dentist are peculiarly within the knowledge of experts, the testimony of those experts is a necessary element of a plaintiff’s case. The danger of infection from an unsterile instrument, or a dirty field of operation, is a matter of such common knowledge that a jury is authorized to draw the reasonable inference that an infection was caused by negligence where an unsterile instrument is used, or the operative field is not properly sterilized. [Citing authorities.]” Mastro v. Kennedy, 57 Cal.App.2d 499 , 504 [ 134 P.2d 865 ],

While there is much conflicting testimony in the record, there is also substantial evidence, which, coupled with the reasonable inferences to be drawn therefrom, points’to a lack of due care on the part of appellant as the proximate cause of the infection suffered by respondent and the resulting perforations in the septum of her nose. Since the evidence produced presented questions of fact for the determination -of the jury, appellant’s motion for a nonsuit was properly denied. '

In view of the conclusion reached by this court, it is not deemed necessary to discuss the other two points raised by appellant.

The attempted appeal from the order denying motion for a new trial is dismissed.

For the reasons stated, the judgment appealed from is affirmed.

Doran, J., and White, J., concurred.

A petition for a rehearing was denied October 4, 1943, and appellant’s petition for a hearing by the Supreme Court was denied November 8, 1943.