Opinion
11-14-1949
VALDEZ v. HANKINS. Civ. 16961.
Gibson, Dunn & Crutcher, Los Angeles, Philip C. Sterry, Los Angeles, for appellant. David C. Marcus, Los Angeles, for respondent.
VALDEZ
v.
HANKINS.
Nov. 14, 1949.
Rehearing Denied Dec. 13, 1949.
Hearing Granted Jan. 12, 1950. *
Gibson, Dunn & Crutcher, Los Angeles, Philip C. Sterry, Los Angeles, for appellant.
David C. Marcus, Los Angeles, for respondent.
DORAN, Justice.
This is an appeal by the defendant Hankins, a physician and surgeon, from a judgment rendered against such defendant in a malpractice action. The action was originally brought against Drs. Percy (now deceased), Hankins, Kimball, Evans and Levi. At the first trial judgments of nonsuit were rendered in favor of Kimball, Evans and Levi, and a judgment on a directed verdict was entered in favor of defendants Percy and Hankins. On appeal, Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142, the judgments of nonsuit were affirmed and the judgment on directed verdict was reversed. At the second trial, the judge, presiding without a jury, found for the plaintiff as against the defendant Hankins.
Plaintiff's first cause of action alleges that the defendant Percy, a specialist in cancer surgery, was employed in reference to an enlarged lymph gland in plaintiff's right axilla; that Dr. Percy advised a removal of such gland for the purpose of examination, and that the same was removed; that thereafter Percy and 'his servants, agents and employees' unlawfully and without plaintiff's consent, did 'operate upon another and different part of the body of plaintiff and removed the right breast', etc. The second cause of action alleges that defendants 'negligently and carelessly and erroneously diagnose(d) the said enlarged lymph gland * * * as Carcinoma' of the right breast, and 'illegally, unlawfully and without the permission and consent of the plaintiff', removed the right breast.
A third cause of action alleges that while plaintiff was unconscious, 'the said defendant did carelessly, negligently and unlawfully and without right remove the right breast of plaintiff', etc. The answer of the appellant, Dr. Hankins, denies the allegations of the complaint except for admitting 'that an operation was performed upon plaintiff for the removal of a gland from the area of the right axilla, and * * * that the nurses, internes and employees of the General Hospital participated in the said operation'.
At the second trial, the previous testimony of Dr. Percy, cancer specialist and plaintiff's physician who had died subsequent to the first trail, was read in evidence where relevant to the issues of the second trial, at which second trial Dr. Hankins, the appellant, was the sole defendant. From this and other testimony it appears that Dr. Hankins was a resident physician at the County General Hospital, admitted to practice two years prior to plaintiff's operation, and assigned to the surgical service of which Dr. Percy was chief. It was appellant's duty to assist Dr. Percy as directed. Except as acting in the capacity of assistant to Dr. Percy, appellant had no connection with plaintiff's case or operations.
Plaintiff's case, as was usual in such matters, was referred to the hospital Malignancy Board composed of eight or nine doctors. The Malignancy Board recommended, as Dr. Percy had previously advised plaintiff, that the enlarged gland in plaintiff's axilla should be removed and examined microscopically to determine if it was malignant. Pursuant to such recommendation, plaintiff entered the hospital and signed the usual written consent authorizing the performance of such operations as might be 'deemed advisable or necessary'.
On March 1, 1934, Dr. Percy, assisted by appellant, excised the gland in question and it was sent to the hospital laboratory for examination. Shortly thereafter and while plaintiff was still under anesthesia, the head nurse announced that the laboratory report was 'Carcinoma', or according to some testimony, 'Carcinoma of the breast'. Plaintiff's right breast was then removed under the direction of Dr. Percy; the latter and Dr. Hankins, assistant, participating in the operation. 'When we got through with the operation', Dr. Percy testified, 'after, practically, the wound was sewed up, the patient was ready to go back to her room, and then a report came in from Miss Rydalch (head nurse) that the technician in the laboratory had come down specially so say that she had made a mistake'. Dr. Percy further stated that the operation for removal of plaintiff's breast was commenced 'right away' after receiving the mistaken carcinoma report for the reason that 'The woman was under an anesthetic, and I was under moral obligation not to keep her under the anesthetic any longer than was possible or necessary'.
Dr. Hankins testified that 'Dr. Percy and myself' performed the breast amputation; that Dr. Percy 'directed me to do the operation and that he did a great deal of assisting; but there were certain times during the operation that he did take the cautery and did certain difficult parts of the operation'. Appellant also stated that 'Dr. Percy discussed that report (carcinoma) with me and also gave that report to Dr. Valdez (plaintiff's husband) who was in the operating amphitheatre'; that 'After he had completed his discussion with Dr. Valdez, Dr. Percy directed me to proceed with the amputation of Mrs. Valdez' breast'. After the operation was complete except for placing a few more stitches in the skin, the head nurse brought in a written report to the effect that 'the diagnosis has been changed by the laboratory', and that 'they now think that this is a Hodgkin's disease, or a possible lymphona'.
The supervising nurse who was present at the operation, testified that after the report of 'carcinoma' was received, Dr. Percy said to Dr. Valdez, plaintiff's husband, 'Well, that is the report of the laboratory. Shall we go ahead?' and that Dr. Valdez 'agreed with Dr. Percy', and 'said to go ahead'. The nurse further testified that when the later report was received changing the diagnosis, the operation 'was almost finished'; that more than 20 minutes intervened between the two reports.
It was the testimony of Dr. Valdez, plaintiff's husband, that after the carcinoma report was received, Dr. Percy 'told me to go out', that Dr. Valdez remained out of the room from five to ten minutes, and upon returning 'the havoc had already been accomplished' and the operation for removal of the breast was under way. Further, that 'why we went to Dr. Percy was just to excise that lymph node and find out what it was', and that there was no authority for proceeding with the radical operation for removal of the breast.
In answer to a hypothetical question, plaintiff's expert, Dr. Webb, expressed an opinion 'that the operation was premature; that sufficient or accurate diagnosis had not been made'. Dr. Schmoele, called by the defendant, stated that under the circumstances of the case, 'I would feel it necessary to operate * * * because carcinoma of the axillary glands in practically all cases are metastatic from a primary carcinoma of the breast'. A similar opinion was expressed by defendant's witness, Dr. Kroger.
The trial court found as to the first cause of action that the defendant Hankins personally removed plaintiff's right breast, but that it was not true that 'he operated upon a different portion of plaintiff's body from that portion embracing the enlarged gland' without plaintiff's permission or consent. As to the second cause of action it was found that Hankins negligently diagnosed the condition as carcinoma of the breast 'and did then and there fail to discover by the exercise of ordinary care that said breast was not affected with carcinoma, or any other disease'. In respect to the third cause of action the trial court found that Dr. Hankins 'did carelessly, negligently and wrongly remove the right breast of plaintiff', and fixed the plaintiff's damage at $7,500.00.
It is appellant's contention that 'The evidence is wholly insufficient to sustain the finding that the defendant Dr. Hankins was negligent'. Appellant's brief states: 'It conclusively appears that Dr. Percy was in charge of the case and that Dr. Hankins * * * had been assigned * * * to assist during the operation under the direction and control of Dr. Percy and that it was his duty to follow the directions given him by Dr. Percy during the course of the operation'.
In this connection it is further argued that 'Dr. Webb (plaintiff's expert) did not express an opinion as to any negligence upon the part of Dr. Hankins. The hypothetical questions * * * were confined and limited to Dr. Percy', referred to in the question as 'a physician and surgeon * * * holding himself out as a specialist in the treatment of cancer and malignant growths'. The question also asked the expert to 'Assume that the physician found the breasts normal, of equal size', and 'that the surgeon in charge continued with the operation and removed the breast'. (Appellant's italics.) Appellant's brief further avers that in any event, Dr. Webb's opinion that such care and skill had not been exercised was based solely upon the incorrect pathological diagnosis for which * * * Dr. Hankins was in no wise responsible'.
Apropos the above contentions 'It is interesting to note', states appellant's brief, 'that the trial court in its Memorandum for Decision stated that the mistake in diagnosis was not discovered until too late to prevent and avoid the operation (Clk.Tr. p. 33, lines 1 to 14)'. The trial court also stated 'That announcement (carcinoma) immediately resulted in the breast being removed within the next ten or fifteen minutes, or thirty minutes, whatever it took; and as the witness says, the havoc was done before the second report got there, that 'There is a mistake here; this isn't breast; this is axilla''.
The judgment herein, holding the defendant Hankins liable for negligence in the diagnosis of plaintiff's ailment and the negligent and wrongful removal of the breast, must be reversed because of a total lack of evidence as to negligence on the part of Dr. Hankins. The most that the record indicates is that, owing to a mistaken report emanating from the hospital laboratory and relied upon by Dr. Percy who was in charge of plaintiff's case, Dr. Percy, now deceased, assisted by Dr. Hankins who acted entirely under the direction of Dr. Percy, removed plaintiff's breast during the period of time elapsing between the erroneous 'carcinoma' report and the later corrected report showing that such condition did not exist. This is far short of the required substantial evidence necessary to support a judgment against the appellant, Dr. Hankins.
It requires no argument and no citation of authorities to sustain the proposition that appellant cannot be held liable for malpractice in reference to plaintiff's operation unless there is proof of some wrongful or negligent act on appellant's part. That a most lamentable error occurred resulting in serious injury to the plaintiff cannot be denied. Such fact, however, affords no excuse for penalizing the appellant in the absence of evidence of fault.
If, as affirmed in the trial court's Memorandum for Decision, the basis for the judgment is the removal of plaintiff's breast 'with negligent haste after a negligent and mistaken diagnosis that it was afflicted with carcinoma', it must be remembered that the appellant, Dr. Hankins, was not the surgeon in charge of the operation, but a mere assistant. The record discloses no evidence that Dr. Hankins made any decision as to how soon the operation should be performed, and it is a reasonable conclusion that this matter, as indeed all matters connected with the operation, were decided by the surgeon in charge, Dr. Percy. Hence, assuming but not deciding that there was 'negligent haste', such fault cannot be charged to the appellant.
In like manner any 'negligent and mistaken diagnosis', the causa causans of plaintiff's injury, was a matter with which Dr. Hankins had no connection whatsoever. The mistake in question emanated from the pathological laboratory of the hospital, and at a previous trial of the case, Dr. Kimball, the pathologist, then a defendant, was absolved from liability; the judgment was affirmed by this court in Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142. As before indicated, Dr. Percy died before the second trial took place.
In view of the holding that the judgment against appellant is not supported by the evidence, it is unnecessary to discuss appellant's other contentions.
The judgment is reversed.
WHITE, P. J., and DRAPEAU, J., concur. --------------- * Subsequent opinion 217 P.2d 422.