Opinion
Hearing Granted May 23, 1962.
Opinion vacated 26 Cal.Rptr. 633. 376 P.2d 561.
Halpin, Halpin & Leep, by Jack Halpin, Redding, for appellant.
Grayson Price, Chico, Newton & Braun, Redding, for respondent.
PIERCE, Justice.
This is an appeal by plaintiff from the judgment entered upon a jury verdict in favor of defendant hospital. The question here involved is whether the trial court committed prejudicial error in refusing to give (in stated sequence) BAJI Instructions 206-F and 206, offered as plaintiff's Instructions Nos. 37 and 38. We have concluded that under the facts of the case the court's refusal to give the instructions was proper because (1) the doctrine of res ipsa loquitur is inapplicable, and (2) the form of the offered instructions was improper in any event.
These Instructions are:
The facts are:
In January, 1959, plaintiff, 64 years of age, had been having prostate trouble. He also suffered from varicose veins. He had consulted. Dr. Charles of Redding for both problems. For the prostate complaint, Dr. Charles had administered rectal digital treatments, massaging the wall of the rectum. The last treatment had been given January 5, 1959, a day before the event next to be described.
Dr. Charles had advised surgery to cure the varicose veins. On January 6, 1959, plaintiff entered defendant hospital and was given the usual pre-surgical enema, by a nurse, or nurse's aid. This was given by insertion in the rectum of a soft, pliable plastic or rubber tube, well lubricated. Plaintiff testified that insertion of the tube was painful and accompanied by a sensation variously described as 'cutting,' 'scratching,' and 'tearing.' Plaintiff testified that his rectum kept stinging and burning all night. He did not, however, complain to Dr. Charles and there is no entry of such an occurrence on the hospital chart.
The varicose vein surgery was performed next day, January 7, 1959, without incident, and plaintiff, on the following day, left the Redding hospital and returned to his home in Red Bluff.
On January 9th, he experienced great pain and saw Dr. Otho Wood of Red Bluff, who examined him that day, again on the following morning, and ordered him to a Res Bluff hospital. Examination revealed a perirectal abscess. Because of the patient's pain, Dr. Wood could not look into the rectum to determine the source of the abscess, and he never did determine such source by visual examination. Plaintiff was treated for the abscess by Doctors Wood and Nash, treatment including two incisions. He left the hospital on February 9th.
Sometime thereafter plaintiff experienced a loss of bowel control. In the meantime a fistula had developed in his anus. On May 14, 1959, this suit was filed against defendant hospital. It was alleged in the complaint that defendant 'so carelessly, negligently and unskillfully administered an enema * * * so as to cause * * * great bodily injury, including * * * a tear of his colon.' This allegation was undoubtedly predicated upon an opinion expressed by Dr. Wood during his treatment of the abscess and fistula. Dr. Wood testified as plaintiff's witness at the trial. He said that, based upon the history given him by the patient, he felt there had been some trauma of the mucous membrane of the rectum ('rectal mucosa') caused by the enema tube. The doctor, as stated above, had not made any examination of the plaintiff which disclosed a tearing or breaking of the mucosa and was not certain that there was such a break or tear, but deduced it from the existence of the infection.
During the spring of 1959 plaintiff moved to Marysville. Still suffering from the fistula (and from lack of bowel control), he consulted a Marysville physician, Dr. Lindsay, who referred him to a Sacramento proctologist, Dr. Bunny.
On July 20, 1959, plaintiff visted Dr. Bunny. He told the doctor he was suing the hospital for the abscess and fistula which he declared had been caused by the giving of the enema. The doctor made a thorough examination, including a sigmoid examination which permitted the doctor to see the rectal tract. He found no evidence of any tearing of the rectal mucosa which, he said, would have been revealed in scar tissue had there been a trauma of any magnitude. He advised plaintiff the abscess and fistula had not been caused by the enema; that the infection was a cryptitis preexistent when plaintiff went to the hospital. This doctor's opinion and other medical opinions will be discussed hereinafter. This surgery was actually performed later by Dr. Wood in September and was successful.
Turning now to a discussion of the law, the conditions which must exist before the trier of fact may apply the inference of negligence, which we know as the doctrine of res ipsa loquitur, have become well understood by frequent reiteration. These conditions are: '[T]hat the accident, or injury, must be of a kind which ordinarily does not occur in the absence of someone's negligence; that it must be caused by an agency or instrumentality in the control of the defendant; and that it must not have been due to any voluntary action or contribution on the part of plaintiff.' (Seneris v. Haas, 45 Cal.2d 811, at page 823, 291 P.2d 915, at page 922, 53 A.L.R.2d 124; Prosser on Torts, 2d Ed., p. 201.)
Plaintiff, contending his case fulfills those conditions, relies heavily upon Wolfsmith v. Marsh, 51 Cal.2d 832, 337 P.2d 70, where the defendant doctor injected sodium pentothal into the inner aspect of the plaintiff's knee. Plaintiff, conscious, experienced great pain, but could not complain because of a rubber apparatus over her mouth. The pain continued and was subsequently diagnosed as having resulted from the insertion of the hypodermic needle by defendant into a varicose vein, a proven improper medical practice. The trial court refused an instruction or res ipsa loquitur. The Supreme Court, reversing, ruled the instruction should have been given. It held that determination of whether an accident is more probably the result of negligence can be through opinions expressed by medical experts, and is not limited to matters of common lay knowledge; but, it said, the fact that hypodermic injections do not ordinarily cause trouble unless unskillfully done or there is something wrong with the serum WAS a matter of common knowledge among laymen. The court also held that plaintiff having produced evidence from which the jury could draw the conclusion that negligence was the most likely explanation of the accident it was not proper for the trial court to draw a contrary inference.
Plaintiff reasons from this case that, if it can be said the giving of an injection does not ordinarily cause trouble unless someone has been negligent, so too it can be said that the giving of an enema will not ordinarily cause an abscess (or other infection) if it is given properly. The vice of this reasoning is that it begs the question. It assumes that the giving of the enema caused the abscess; in other words, it assumes the enema was the 'accident.' But the question here Borrowing the language of Professor Wex S. Malone (in Contrasting Images of Torts--The Judicial Personality of Justice Traynor, 13 Stanford Law Review, p. 779, at p. 797): 'The ultimate question * * * is whether the accident [or injury], when considered with its attendant circumstances, suggests the probability that its occurrence is more likely attributable to acts or omissions chargeable to the defendant, than to some extraneous source.' (Emphasis ours.)
In an article entitled 'The California Malpractice Controversy' in 9 Stanford Law Review, page 731, at page 741, it is stated:
'The doctrine of res ipsa loquitur should not apply unless the probability of negligence is greater than any other possible cause of a plaintiff's injury.' (See also Hernandez v. Southern California Gas Co., 213 Cal. 384, 388, 2 P.2d 360; Olson v. Whitthorne & Swan, 203 Cal. 206, 208, 263 P. 518, 58 A.L.R. 129; Zentz v. Coca Cola Bottling Co., 92 Cal.App.2d 130, 133-134, 206 P.2d 653; Prosser, Res Ipsa Loquitur in Calif., 37 Cal.L.Rev. 183, 196-198.)
There is evidence in this case that a properly given enema will not cause an abscess. And, under the rules stated above, if there is substantial and credible evidence from which reasonable men (to-wit, the jury) could determine that the abscess was more probably due to the insertion of the enema tube than any other cause, then a proper instruction on res ipsa loquitur should have been given.
In stating the evidence in the record we must do so, resolving all reasonable inferences in plaintiff's favor. (Wolfsmith v. Marsh, supra, at p. 833, 337 P.2d 70.) There are other rules, however, which also must be observed. All evidence here, pertinent to the inquiry of causation, involves opinions of medical experts who examined or treated plaintiff, or both. A study of the record also shows that in the case of every one of these doctors the opinion testified to was predicated upon a hypothesis assumed either in the question asked or in a history given the doctor by the patient as facts learned by personal observation. (People v. Brown, 49 Cal.2d 577, 585, 320 P.2d 5.) An expert's opinion is no better than the reasons given for it and assumption of facts contrary to the proof destroys the opinion. (Sears, Roebuck & Co. v. Walls, 178 Cal.App.2d 284, 289, 2 Cal.Rptr. 847.) When facts on which a hypothesis is based fall, the answer falls also. (19 Cal.Jur.2d, sec. 300, pp. 27-28.) 'If the premises fail, the conclusion must be disregarded.' (2 Wigmore on Evidence, 3d Ed., sec. 680, p. 799. See also Barnett v. Atchison, etc., Ry. Co., 99 Cal.App. 310, 317, 278 P. 443; Estate of Powers, 81 Cal.App.2d 480, 485-486, 184 P.2d 319.) Could a jury, applying these rules, reasonably have reached a conclusion that the giving of the enema, more probably than any other cause, was the source of the infection? We think a fair analysis of the evidence answers this question in the negative.
Of the five physicians who expressed opinions here two were called by plaintiff. In plaintiff's brief principal reliance is on the testimony of one of these, Doctor Thomas, who was employed by defendant to examine plaintiff and who was called testify by both plaintiff and by defendant. Plaintiff called him to affirm that, from the history he had obtained from plaintiff, the doctor had written a report expressing an opinion that plaintiff's contention that there had been a break in the mucosa caused by the giving of the enema was a reasonable assumption. Called later by defendant, however, the doctor testified that plaintiff had not informed him that, before entering the hospital, he had been under treatment by Dr. Charles for prostatitis and had been receiving digital rectal massages therefor, with the latest the day before the enema. He had found this out afterwards by talking with Dr. Charles who also informed him that he had had difficulty in performing the massage treatment because plaintiff had a Dr. Thomas described 'anal crypts' located in the rectum. These are pockets with glands in which fecal matter frequently lodges and when systemic conditions are right, inflammation, infection and perirectal abscesses occur, unattended by any trauma. The crypts are located in an area of the rectum higher up than it would be logical to expect an enema tube would reach. They would be reached, however, in the giving of a prostatic massage which was described 'as a calculated risk.' He stated that an abscess takes from 5 to 7 days to develop, and generally longer; that the fact that plaintiff suffered pain when the enema was administered and was in excruciating pain 3 days later was an indication that the infection had had its origin sometime before his entry into the hospital.
The other doctor relied upon by plaintiff was Dr. Wood. He also was not asked to state an opinion based upon the hypothesis which included the presence of the tight sphincter muscle or the prostatic massages. He stated that perirectal abscesses are common and from many causes; that 90 per cent of them are due to a bacteria type of infection and if any abnormal condition existed, giving bacteria a chance to work ('the right bug at the right time and the right person') infection would result. Straining at stool and digital massage of the prostate from the rectum were given as traumatic sources of infection. He also agreed that the anal crypt was a most common location at which an infection would start with a perirectal abscess developing therefrom. He had known of cases of patients having 'minor problems following enemas,' cases where the insertion of the tube had caused minute cracks of the mucous membrane. He had not known of a case where an abscess had developed. He was shown the two types of enema tubes used by defendant hospital and said it didn't look as though that could cause a trauma. The doctor's testimony on this subject concluded with the statement: 'The older type, these hard things, would [be] more apt to cause trauma than a soft tube would and * * * that * * * is one of the reasons that has prompted the development of a soft pliable rectal tube * * *. It is not completely unknown to have trouble from an enema, particularly with the older type of tubes.'
Dr. Bunny had been consulted by plaintiff, but testified for defendant. He said that the fistula which he observed when he examined plaintiff told the story of the source of the infection and that it was outside the anal canal and in the anal crypt. He also testified that cryptitis, i. e., inflammation of the anal crypts is the cause of 95 per cent of all proctological abscesses and he cited one text writer who placed it at 100 per cent. It was very unlikely that the scratching of the mucosa by an enema tube would produce an abscess. He also believed that because of the time lapse and the fact pain was experienced when the enema tube was inserted, the infection had already occurred to plaintiff before the enema was given.
Dr. Nash, who had assisted Dr. Wood in his treatment of plaintiff, testifying foe the defendant, put the chances of a tearing of the mucosa by an enema tube at less than one in ten million 'a ridiculous estimate.' He had never heard of a perirectal abscess caused by a trauma.
Dr. Wiley, called by defendants, had never heard of a case of an enema tube tearing a mucosa. Tearing of the mucosa during the passing of a hard stool, he said, was a more probable traumatic cause, but the most likely cause was a natural infection.
A summary of the medical evidence shows that there were here a number of possibilities as to how this accident or injury occurred: (1) a cryptitis from an unknown origin--the most common of all sources of perirectal abscesses, (2) an infection Certainly, no fact of common knowledge here suggests the probability that the occurrence of this accident was 'more likely attributable to acts or omissions chargeable to the defendant than to some extraneous source.'
It has been stated:
'* * * The range of the layman's common knowledge in the field of medicine is undoubtedly very small but the courts, probably in reaction to their belief that there is a general refusal on the part of doctors to testify for plaintiffs, have attributed a remarkable breadth to the knowledge of the layman. Dean Prosser's observation that 'one may suspect that the courts are not reluctant to use res ipsa loquitur as a deliberate instrument of policy to even the balance against the professional conspiracy of silence' seems particularly applicable.' (The California Malpractice Controversy, 9 Stanford L.Rev. 731, 741-742.)
The Supreme Court has held the doctrine of res ipsa loquitur applicable where the accident is known and is of a nature that it can be said as a matter of common knowledge that it would not ordinarily occur but for the defendant's negligence. (Wolfsmith v. Marsh, supra.) But no court has ever held to our knowledge that where the accident is questioned and one of four possibilities would be of a type permitting an inference of negligence, the jury may apply the doctrine in determining it to be the most probable cause, all medical evidence to the contrary notwithstanding.
'* * * [W]hen the matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen, the expert evidence is conclusive.' (Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695, 697.)
We hold that instruction on the doctrine of res ipsa loquitur was therefore properly refused.
Even if this were not true, and a proper instruction on res ipsa loquitur could be said to have been called for, the instructions offered by plaintiff here would have been misleading. Because they start with the, at least implied, assumption that the accident WAS the giving of the enema, and then instruct the jury, that if the accident (thus assumed) was found to possess the three classic conditions an inference of negligence woud follow. And the instruction does so with that ear-reaching sentence: 'From the happening of the accident involved in this case [again note the assumption that the enema was the accident], an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant.' At this point the average juror will For an instruction on res ipsa loquitur, under the facts of this case, even to approach accuracy and fairness, it would have had to include all of the following elements: (1) The judge would first have had to explain in terms clear enough for a jury of laymen to understand, the four 'accidents' which the evidence showed were possible. (2) He would then have had to inform the jury that they must be able to find, and actually find, from the evidence that the giving of the enema was the most probable of all the possible accidents--just how they could find such evidence in this record we cannot say. (3) He would then have to set forth the conditions which must exist before the doctrine of res ipsa loquitur can be applied--as set forth in BAJI 206-F. (4) He would then have to instruct them that if they had first found all of the conditions precedent mentioned in (3) plus that in (2) they could, if they chose, apply the inference of negligence--with all of the safeguarding equivocating qualifications set forth in BAJI 206. One may well wonder at what point along the route of such attempted clarification (?) the jury's frame of mind would be that of the critic and Latin scholar mentioned by Dean Prosser (Selected Topics on the Law of Torts, page 376): 'Loquitur, vere; sed quid in inferno vult dicere?'
In any event, the instructions offered were not applicable under the facts of this case. BAJI instructions, properly used, are a boon to lawyers and trial judges alike. But, as with all books of forms, they are not, and cannot be, tailored to each individual case--as the facts of this case well illustrate. (See Brandelius v. City and County of San Francisco, 47 Cal.2d 729, 738, 739, 306 P.2d 432; also the concurring opinion of Justice Shinn in Werkman v. Howard Zink Corp., 97 Cal.App.2d 418, 431, 218 P.2d 43.) It was not the obligation of the trial judge here to correct these incomplete and erroneous instructions. (Tossman v. Newman, 37 Cal.2d 522, 525, 233 P.2d 1. See Shaw v. Pac. Greyhound Lines, 50 Cal.2d 153, 158, 323 P.2d 391.) And a refusal of the erroneous instruction uncorrected does not constitute error. (Faulk v. Soberanes, 56 A.C. 465, 469, 470, 14 Cal.Rptr. 545, 363 P.2d 593.)
The judgment is affirmed.
SCHOTTKY, J., concurs.
PEEK, Presiding Justice.
I dissent. From my examination of the record, I am convinced that the evidence was amply sufficient to support a finding by the jury that a negligently administered enema was the more probable cause of plaintiff's perirectal abscess, and therefore the res ipsa loquitur instructions proposed by plaintiff should have been submitted to the jury for its consideration.
Furthermore, I am convinced that from the very outset the approach taken by the majority is precisely what was condemned in Ybarra v. Spangard, 25 Cal.2d 486, 489, 154 P.2d 687, 689, 162 A.L.R. 1258: the '* * * tendency, in some decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention to its basic underlying purpose.'
I am also convinced that the majority, in reaching its conclusion, has erred in its analysis of the evidence. This error is well illustrated by the comment that 'All evidence here, pertinent to the inquiry of causation, involves opinions of medical experts who examined or treated plaintiff, or both.' It is then stated, 'Of course, if one doctor had expressed an unequivocal opinion that of all of these causes the last, i. e., the giving of the enema was the most likely cause and if that opinion were given with a knowledge of all the facts (whether such knowledge was gained by actual examination Since no contention is made, nor could be made under the facts, that plaintiff in any way contributed to the accident, we are therefore only concerned with two of the three requisites of the rule: (1) that the accident must be of a kind which does not ordinarily occur in the absence of someone's negligence; and (2) that it was caused by an agency or instrumentality wholly within the exclusive control of the defendant.
Turning first to the question of causation, it is undoubtedly true that the abstract question as to whether bacteria lodged in a break in the mucosa wall could cause a perirectal abscess was a matter for expert testimony and not one of common knowledge among laymen. Possibly the question as to whether an anema tube could break the mucosa wall was also one for experts. But whether or not these two questions were solely the subject of expert testimony, nevertheless the record shows that although all of the experts expressed doubt that plaintiff's injury could so occur, none said that it could not, and all said that it could.
One witness, Dr. Wiley, testified that medical journals had reported cases wherein infections similar to that in this case had resulted from a break in the mucosa caused by one of the new-type enema tubes. He further testified that some cases go unreported. Additionally, there was testimony that many such injuries had been reported from the use of the old-type tubes. Concerning the tube which was used, the majority opinion states that it was a soft, pliable, well-lubricated plastic or rubber tube, but the only basis for such a statement was testimony that that was the usual procedure of the hospital. The record, however, contains nothing specific concerning the type of tube that was used, how the enema was administered, or by whom. The only evidence in this regard was by the director of nurses who thought that the enema was probably administered by one of the three vocational nurses then on duty, but the one named had no recollection whatsoever of the incident.
Even assuming that the first question above noted may well have been one for experts alone, certainly the second question as to whether this injury was or was not caused by the enema tube was not a matter solely within medical knowledge. Neither the medical testimony nor the hospital records which were introduced contain any infornation indicating the condition of the mucosa wall either before, during, or after the administration of the enema. In fact, none of the experts, except Dr. Bunny, had examined the mucosa wall and his examination was made some six months after the enema had been given and plaintiff had recovered from the abscess. The doctor's testimony was that the abscess was probably due to the presence of cryptitis in the plaintiff's anal canal before the enema was administered. The fact that the abscess developed shortly after the enema was given was dismissed by him as a mere 'coincidence.' Again, it is interesting to note that although Dr. Bunny attributed 95 per cent of all perirectal abscesses to cryptitis, no other witness would single out that ailment as the most common cause. In addition, there was expert testimony that a prostate massage could have caused the abscess. But again, such testimony was hedged with the assumption that because plaintiff was admitted to surgery and because only healthy Opposed to the evidence above referred to was plaintiff's uncontradicted testimony that neither at nor prior to the time he entered the hospital had he experienced any anal pain; that he had been receiving prostate massages intermittently for several years prior to the administering of the enema without resulting pain or loss of bowel control; and that his first experience with rectal pain was when the nurse first attempted to insert the enema tube. His testimony of his experience at that time was that during each of the four attempts made by the nurse to insert the tube, he complained to her of a 'cutting or scratching,' and that after she had finally inserted the tube on the fourth attempt, he experienced a 'tearing' sensation. Her reply to his complaint was that it was all in his imagination. Shortly after leaving the hospital he developed a high fever and had severe rectal pains, both of which were found to be due to a perirectal abscess. As previously noted, his was the only testimony concerning the actual insertion of the tube.
It has long been the rule that in situations such as presented in the instant case 'The weight to be given to expert medical testimony is within the sound discretion of the fact finding tribunal. The law makes no distinction in that regard between the testimony of expert and non-expert witnesses.' (Maryland Cas. Co. v. Industrial Acc. Comm., 64 Cal.App.2d 162, 166, 148 P.2d 95, 97.) If the law makes no distinction in this regard, then certainly it would appear that the majority has also fallen into error by excluding from consideration the testimony of the plaintiff as well as the contradictory testimony of the medical experts to which I have previously referred.
Necessarily, therefore, in view of the conflict in the evidence, the question as to whether the insertion of the particularenema tube probably caused the break in the mucosa wall and the resulting abscess was neither for the trial court nor for this court to resolved, but more properly should have been submitted to the jury, as set forth in plaintiff's instructions.
The second question is one of negligence. as posed by the first part of Plaintiff's Proposed Instruction No. 37. In the recent case of Wolfsmith v. Marsh, 51 Cal.2d 832, 835, 337 P.2d 70, 72, in reversing the judgment of the trial court solely for the reason that it refused to give the plaintiff's instruction on res ipsa loquitur, the court held: 'In determining whether an accident was of such a nature that it probably was the result of negligence by someone, the courts have rlied upon both (a) common knowledge and (b) the testimony of expert witnesses, as well as the circumstances relating to the accident in each particular case. [Citing cases.]' As the majority opinion notes, in the Wolfsmith case the issue of causation was conceded and the foregoing quotation was directed to the question of whether the admitted injection of a varicose vein with a hypodermic needle was negligent practice. However, the court further held that 'It is a matter of common knowledge among laymen that injections * * * do not ordinarily cause trouble unless unskillfully done * * *.' Applying that rule to the present case, certainly it may be said with equal propriety that an enema is not ordinarily painful, nor does it cause trouble, unless unskillfully or negligently done. In fact, the precise testimony of the experts was that numerous enemas are given daily, not only in hospitals Of course, the mere fact that an unfavorable result is unusual would not give rise to the inference of negligence. Nevertheless, it is one of 'the circumstances relating to the accident' and hence, a circumstance for the jury to consider. (Wolfsmith v. Marsh, supra.) As noted, the only direct testimony contained in the record concerning the actual giving of the enema and bearing on the issue of negligence was by plaintiff himself. Unfortunately for him, by reason of the position which he was required to assume during the insertion of the tube, he obviously could neither see nor describe the manner in which the nurse performed her duties and hence, from an evidentiary standpoint, he was in the same situation as one who is injured while under anesthesia.
In view of the stated rules and the record as summarized, I cannot agree with the majority that the evidence was neither conflicting nor subject to different inferences. Therefore, as held in Seneris v. Haas, 45 Cal.2d 811, 826, 291 P.2d 915, 53 A.L.R.2d 124, '* * * it is for the jury, under proper instructions, to determine whether each of the conditions necessary to bring into play the rule of res ipsa loquitur is present.' (See also Borenkraut v. Whitten, 56 A.C. 557, 15 Cal.Rptr. 635, 364 P.2d 467.) The instructions proposed by plaintiff herein were precisely in accordance with the rule as stated and specifically told the jury that the inference could only arise '[i]f and only in the event' it should find all three res ipsa loquitur conditions to exist.
If my summary of the evidence is at all correct, then there was evidence from which reasonable men might conclude that negligence was a more probable explanation of the accident. Hence, it was error for the court to take this issue from the jury and hold in effect that the res ipsa loquitur inference was dispelled as a matter of law. In Leonard v. Watsonville Community Hosp., 47 Cal.2d 509, 514-515, 305 P.2d 36, 39, the court, in reversing a judgment of nonsult as to the defendant hospital, held that 'The same test is applicable in determining when the res ipsa loquitur inference is dispelled as a matter of law as in deciding when any other inference is conclusively rebutted. * * * It is settled that where the evidence raises an inference that a fact exists, and either party produces evidence of the nonexistence of the fact that is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved, the nonexistence of the fact is established as a matter of law.' The obvious corollary of this rule is that the inference of res ipsa loquitur is not dispelled unless it '* * * is entirely clear that there is no basis of experience from which a reasonable man may conclude that negligence is a more probable explanation than any other * * *.' (Prosser, Res Ipsa Loquitur in California [1949], 37 Cal.Law Rev. 183, 195.) Furthermore, it has been noted that the application of the res ipsa loquitur rule in malpractice cases is a development of comparatively recent years designed to counteract some of the practical problems which so often confront a plaintiff in attempting to establish a case. (Salgo v. Leland Stanford, etc., Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170.)
'The conclusion that negligence is the most likely explanation of an accident or injury is not for the trial court to draw or refuse to draw so long as plaintiff has produced sufficient evidence to permit the jury to draw the inference of negligence, though the court itself would not draw that inference. The court must leave the question to the jury where reasonable men may differ as to the balance of probabilities.' (Wolfsmith v. Marsh, supra, 51 Cal.2d at pp. 835-836, 337 P.2d at p. 72.) In the instant case, however, the majority, in derogation of the stated rule, is not only weighing the evidence and assessing the probabilities but In conclusion, I am firmly convinced that under the facts and circumstances of the instant case there was ample evidence to permit reasonable men to draw the inference of negligence. There was no testimony that the enema tube could not scratch the mucosa wall, that an abscess could not develop from such a scratch, or that the abscess could not damage the sphincter; but there was medical testimony that this could happen and that cases of this type have been reported in medical journals. There was also the testimony of plaintiff himself that he had complained of cutting, scratching, and tearing sensations during the attempts to insert the tube. Furthermore, it is a matter of common knowledge, buttressed by medical testimony, that enemas are not usually painful unless improperly or negligently administered. Plaintiff could not see the manner in which the enema was administered. The hospital had no record of who gave the enema or of any of the circumstances surrounding the event. No doctor examined plaintiff's anal mucosa until six months after the enema had been administered. Plaintiff had received digital massage treatment to his prostate intermittently for several years prior to the enema and had experienced neither pain nor loss of bowel control as a result of such massage.
Certainly, from this evidence the jury would have been warranted in inferring that '* * * it was more probable than not that the accident was caused by some negligence on the part of the defendants * * *' (Borenkraut v. Whitten, supra, 56 A.C. at p. 567, 15 Cal.Rptr. at p. 640, 364 P.2d at p. 472), and hence, the refusal of the trial court to allow the jury to consider the res ipsa loquitur rule under instructions proposed by plaintiff constituted prejudicial error.
I would reverse the judgment.
'PLAINTIFF'S PROPOSED INSTRUCTION NO. 37
'Instruction No. ___
'One of the questions for you to decide in this case is whether the injury involved occurred under the following circumstances:
'First, that it is the kind of injury which ordinarily does not occur in the absence of someone's negligence;
'Second, that it was caused by an agency or instrumentality in the exclusive control of the defendant; and
'Third, that the injury was not due to any voluntary action or contribution on the part of the plaintiff.
'If, and only in the event that you should find all these conditions to exist, you are instructed as follows:
'PLAINTIFF'S PROPOSED INSTRUCTION NO. 38
'Instruction No. ___
'From the happening of the accident involved in this case, an inference arises that a proximate cause of the occurrence was some negligent conduct on the part of the defendant. That inference is a form of evidence and unless there is contrary evidence sufficient to meet or balance it, the jury should find in accordance with the inference.
'When there is any evidence to the contrary, you must weigh all of the evidence bearing upon the issue of defendant's negligence. If the evidence tending to prove that the accident was caused by a failure of the defendant to exercise the care required of him has greater weight than the evidence to the contrary, you will find in favor of the plaintiff on that issue.
'In order to meet or balance the inference of negligence, the defendant must present evidence to show either (1) a satisfactory explanation of the accident, that is, a definite cause for the accident, in which there is no negligence on the part of the defendant, or (2) such care on the defendant's part as leads to the conclusion that the accident did not happen because of want of care by him, but was due to some other cause, although the exact cause may be unknown. If such evidence has at least as much convincing force as the inference and other evidence, if any, supporting the inference, then you will find against the plaintiff on that issue.'