H. T. MOORE, Appellant, v. ELMER BELT, Respondent, 34 Cal. 2d 525

SHENK, J. Appeal by the plaintiff from a judgment on a verdict for the defendant in an action to recover damages for alleged malpractice. The appeal is on a settled statement. Due to an admitted conflict in the testimony it is not contended that the evidence is insufficient to support the verdict. The plaintiff’s principal assignments are that the court committed prejudicial error in the instructions on the issue of negligence and in rulings on the admission of evidence. The defendant is a physician practicing in the county of Los Angeles and has specialized in urology since 1923.

The plaintiff, an attorney, is 46 years old and resides in Los Angeles. He formerly lived in Texas. On June 7, 1944, he appeared at the defendant’s office pursuant to aU appointment. His medical history given at that time showed the following: In childhood he experienced the usual children’s diseases. In his youth he had trouble with his left testicle which was small and would draw up into the abdomen upon pressure. This condition continued throughout the years causing him pain and discomfort. Beginning about 1920 a sinus infection developed which gave him much distress.

Drainages in 1921 quieted the area somewhat until 1930. The difficulty recurred and in 1932 he had a bone cutting operation which did not entirely remove the trouble. At times he had a slight rheumatic pain in the right wrist. Periodic pain centering in the lower abdominal region commenced about 1936. It was preceded by a slight nonvenereal urethral discharge which disappeared after treatment. X-ray and fluoroscopic examinations were made in El Paso and again in 1939 in Los Angeles in an attempt to locate the origin of the abdominal pain, and in 1942 the appendix was removed.

But the difficulty remained and called for further study. For this purpose the plaintiff was sent by his personal physician to the defendant. At the defendant’s office the plaintiff was subjected to examination and tests of the prostatic secretion, the urine, and for syphilis. He was then prepared for cystoscopic examination which was conducted by the defendant with the use of instruments and fluids inserted through the ureters. X-ray pictures were taken.

Before he departed the plaintiff was informed by the defendant that the tests showed negative results except for five per cent pus cells in the prostatic secretion which was stated to be normal, and that his trouble could not be traced to any infection or difficulty in the genito-urinary system. The plaintiff worked at his office the following day and evening until 8 o ’clock when he had a chill and went home. Chills and fever continued alternately throughout the night and the next day. The defendant was out of the city and the plaintiff called Dr.

Hyde who took samples of urine to his laboratory for tests and later reported the results which were not given in evidence. Sulfa drugs were sent from the defendant’s office for administration. The following day Dr. Guth of the defendant’s staff called, made examinations and advised continuing the drugs. Chills and profuse sweating continued and the plaintiff was taken to a hospital where he was attended by Dr. Ebert from the defendant’s office. Dr. Ebert informed the plaintiff that he was being treated for an acute infection of the urinary passages but it was not understood how the infection arose.

The chills and fever abated on June 14th and on June 16th the plaintiff returned to his home where he was confined for 10 days. On June 27th, he reported at the defendant’s office and after prostatie and urinary tests was told he had a 25 per cent infection. Subsequent tests showed the infection decreasing gradually to 10 per cent. He was informed that the defendant did not lmow the cause of the infection. The plaintiff then began treatment with his personal physician. Because of an apparent allergy to sulfa drugs, penicillin was substituted in the treatment and apparently proved more effective.

On the trial the plaintiff produced one expert witness, an autopsy surgeon in Los Angeles, who testified that in his opinion the 24 hours between the cystoscopic examination and the fever symptoms constituted an incubation period for bacteria introduced into the delicate channels by unsterile instruments or, assuming proper sterilization of the instruments, from the opening of the channels whose edges were not thoroughly cleansed; that the results showed a well-seated infection in the urinary tract which was not present prior to instrumentation. - Witnesses produced by the defendant testified concerning standards of treatment and sterilization methods and stated that in their opinion the infection was not caused by any unsterile preparatory procedure nor introduced from outside sources in the conduct of the cystoscopic examination but, based on the prior medical history, was attributable to low-grade chronic infection in the genito-urinary tracts, probably prostatic in origin, or to the use of sulfa drugs, or to influenza from respiratory inflammation or sinus infection.

At the defendant’s request the court charged the jury in substance that the defendant’s negligence could not be presumed but must be based on the testimony of experts; also that the jury could not set up a standard but must be governed solely by the testimony of expert witnesses.

The plaintiff requested an instruction (based on B.A.J.I. 214-B Pocket Parts) embodying the substance of the foregoing instructions and adding that expert testimony was not required to establish a fact based on common knowledge that danger is involved where certain precautionary measures including sterilization are not followed, whereupon whether the condition was caused by negligence may be decided in the light of such common knowledge.

The requested instruction was refused but at the plaintiff’s request the jury was charged that if it be found that the plaintiff sustained injury as the result of the introduction by the defendant of a new infection, an inference arose that the proximate cause of the injury was some negligence or malpractice on the part of the defendant which it was incumbent upon him to rebut by clear, positive and uncontradieted evidence that the injury occurred without any failure of duty on his part.

The plaintiff contends that the instructions given were conflicting and confused the jury; that the correct theory of the case is that as a matter of common knowledge the result does not usually happen when sterilization has been proper; that expert testimony was not required to prove negligence; therefore that the instructions in conflict with his theory were erroneous, misleading and prejudicial.

On the other hand the defendant, supported by state and county medical associations as amici curiae, questions the propriety of any application of a doctrine based on common knowledge in the absence of the fact first established without conflict that the infection was introduced by the act of the defendant. It is therefore contended that the record presents issues of fact solely within the knowledge of experts and that the plaintiff’s given instruction which incorporated a statement of the res ipsa loquitur doctrine was more favorable to him than the record warranted.

The given instructions embodied a statement of the general rule that the proper and usual practice in diagnosis and treatment is a question for experts and can be established only by their testimony. (Perkins v. Trueblood, 180 Cal. 437, 443 [181 P. 642]), and the exception declared in Barham v. Wid ing, 210 Cal. 206 [291 P. 173], and other cases relied on by the plaintiff. In Barham v. Widing the defendant extracted a tooth from the plaintiff’s jaw. An infection developed which from the evidence could be traced to the use of an unsterile hypodermic needle or solution inserted to anaesthetize the jaw.

The jury was instructed that if the defendant used an unsterile needle or solution which proximately caused the infection the plaintiff should recover. It was claimed that the omission of the words “carelessly and negligently” was prejudicial error.

This court affirmed the judgment entered on the verdict for the plaintiff and determined that the mere fact of infection following and traceable to improper sterilization was evidence of carelessness and negligence; that the court would take judicial notice that in common knowledge such a result does not follow proper sterilization and that observance of the ordinary standards would preclude the use of an unsterile needle or solution; therefore the omitted words were not necessary to a proper charge. Declarations to similar effect and variously stated have been applied in many situations. (Dierman v.

Providence Hospital, 31 Cal.2d 290 [188 P.2d 12]; Ybarra v. Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R 1258]; Lawless v. Calaway, 24 Cal.2d 81, 86 [147 P.2d 604]; Bellandi v. Park Sanitarium Assn., 214 Cal. 472, 480 [6 P.2d 508]; Meyer v. McNutt Hospital, 173 Cal. 156 [159 P. 436]; Dean v. Dyer, 64 Cal.App.2d 646, 653 [149 P.2d 288]; Mastro v. Kennedy, 57 Cal.App.2d 499, 504 [134 P.2d 865]; Walter v. England, 133 Cal.App. 676, 680 [24 P.2d 930]; Inderbitzen v. Lane Hospital, 124 Cal.App. 462, 467 [12 P.2d 744, 13 P.2d 905].) In other cases the doctrine has been recognized. (Sinz v.

Owens, 33 Cal.2d 749, 753 [205 P.2d 3]; Engelking v. Carlson, 13 Cal.2d 216, 221 [88 P.2d 695] and cases cited; Church v. Bloch, 80 Cal.App.2d 542, 548-549 [182 P.2d 241]; Rising v. Veatch, 117 Cal.App. 404, 408 [3 P.2d 1023]; Donahoo v. Lovas, 105 Cal.App. 705, 709 [288 P. 698].) In the cases cited where the doctrine was held applicable evidence that the defendant did not cause the injury was remote and it followed as a matter of common knowledge from the nature of the injury that the result would not happen without carelessness or negligence.

In the present case the inference that the injury was not caused by the defendant, but from some source theretofore existing in the plaintiff’s system, was not remote but could be drawn from substantial evidence in the record. On the evidence of the plaintiff’s medical history the jury was' not required to but could reasonably conclude that the prior infection, and not any negligent act on the part of the defendant, was the proximate cause of the trouble. The inference based on common knowledge is. at the root of the res ipsa loquitur doctrine.

Before it could be drawn under the facts of this case the jury would have to reject the hypothesis that the plaintiff’s prior condition was the proximate cause. (Prosser, Torts, p. 295; Prosser,

article Bes Ipsa Loquitur in California, 37 Cal.L.Rev. 183, 201; Ybarra v. Spangard, supra, 25 Cal.2d at p. 489.) Omitted from the plaintiff’s refused instruction but included in his given instruction covering the res ipsa loquitur doctrine, is the necessary element of causal connection between the act and the injury, An instruction based on the plaintiff’s theory that the exception only should be applied would resolve in his favor the issue of causation and thereby take that question from the jury’s consideration.

The evidence on that issue was conflicting and the court correctly submitted the case to the jury with the inclusion of the element of causation, thereby calling for statements of both the general rule and the exception. (See Barham v. Widing, supra, 210 Cal. at p. 216; Nelson v.

Painless Parker, 104 Cal.App. 770, 775 [286 P. 1078].) Since there was no real contradiction as to the applicable theories, it may not be said that the jury was misled to the prejudice of the plaintiff on a record of conflicting evidence containing substantial support for the jury’s verdict, and this court is therefore not at liberty to disturb the result of the jury’s deliberations. It is urged that the trial court unduly limited the plaintiff’s examination of his expert witness.

It appeared from the testimony of this witness that he had practiced as an autopsy surgeon for 29 years, that he did not practice urology, did not conduct genito-urinary examinations in the diagnostic or treatment fields, and did not know the methods of practice therein, but that he had learning and knowledge of the anatomy and of infections in relation to the genito-urinary system.

When this testimony was given and after consultation and offers of proof in chambers, the court excluded hypothetical questions addressed to this witness based on his knowledge of the existing standards in the practice of urology, but permitted one hypothetical question to elicit the witness’ opinion as to the cause of the infection. A medical expert is not qualified as a witness unless he is shown not only to have the required professional knowledge, learning and skill to express his opinion, but is also familiar with the standards required of physicians under similar circumstances. (Sinz v.

Owens, supra, 33 Cal.2d at p. 753 et seq.) A party is entitled to examine an expert witness as to his qualifications and experience so that the full weight to be accorded his testimony will become apparent. (Salmon v. Rathjens, 152 Cal. 290, 299 [92 P. 733].) But in view of the witness’ admitted lack of practice in urology the extent of the examination as to his qualifications in relation to the subject matter of Ms opinion was within the sound discretion of the trial court. (Sinz v.

Owens, supra, 33 Cal.2d at p. 753.) The witness gave a chronological account of his education and experience and demonstrated his anatomical knowledge as it related to the genito-urinary system. It does not appear that further examination either as to his qualifications or Ms opinion of the cause of infection would have accorded any greater weight to his testimony.

The plaintiff was not unduly restricted on direct or rebuttal examination by rulings sustaining objections to further hypothetical questions which were repetitions of the question answered by the witness and to questions on subjects not within the limits of the witness’ qualifications as determined by the court. Likewise the plaintiff may not complain of prejudice by reason of the court’s refusal to permit the witness to explain his “yes” answer to the question whether his opinion on the hypothetical case assumed competent manipulation of instruments in the examination conducted by the defendant.

Inasmuch as the court properly ruled that the witness was not qualified to give his opinion concerning the existing standards in the practice of urology, an explanation of the answer was not necessary. No prejudicial error or abuse of discretion is shown. The judgment is affirmed. Edmonds, J., Schauer, J., and Spence, J., concurred.