# Moore v. Belt > California Supreme Court · December 16, 1949 · 34 Cal. 2d 525 URL: https://www.frixlaw.com/law-library/cases/9539132 ## Case - **Full name:** H. T. MOORE, Appellant, v. ELMER BELT, Respondent - **Court:** California Supreme Court - **Decided:** December 16, 1949 - **Citations:** 34 Cal. 2d 525; 212 P.2d 509; 1949 Cal. LEXIS 184 - **Precedential status:** Published - **Opinion:** Dissent by Carter - **Judges:** Carter, Traynor - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9539132 ## Opinion text CARTER, J. I dissent. I cannot agree with either the result or the reasoning of the majority opirnon. This case was ably and correctly disposed of by the opinion of Justice Vallée in the District Court of Appeal, and with some additions and deletions, I adopt that opinion as follows (90 A.C.A. 248): *533 “Appellant’s assignments of error are: (1) the court erred in giving instructions requested by respondent and in refusing to give instructions requested by appellant, (2) the court erred in sustaining objections to questions asked the expert called by appellant for the purpose of establishing his qualifications, in sustaining objections to hypothetical questions asked the expert, in not permitting him to explain a ‘Yes’ answer, and in sustaining objections to questions asked him on rebuttal which assumed facts developed by the defense. “The evidence germane to the first assignment of error will be related. Appellant went to Dr. Belt’s office on June 7, 1944, for a cystoscopic examination. At the time he was a man 41 years of age. After giving the doctor a history, he was partially disrobed, the doctor palpated his abdomen and examined his testicles. He was then, taken to another room for further examinations and tests preparatory to the cystoscopic examination. He was disrobed and clothed with a surgical gown. His pulse and temperature were taken. A test was made of his hemoglobin. His lungs and teeth were examined. Samples of his urine were taken, tested and found negative. His blood pressure was taken. A syphilis test was made. It was negative. A prostatie massage was performed and a sample taken of the prostatie secretion. “After a wait, appellant was taken to a cystoscopic examination room and assisted onto a table. The table was so constructed that he could be turned from a prone position to an erect standing position without being removed from the table. While on the table appellant could not see and did not know what was being done except what he could feel. A layman, called a technician, 26 years of age, in the absence of Dr. Belt, prepared appellant for instrumentation. The layman picked up a tray from a nurse in the next room. The tray contained an installator, swab, water tube, two syringes, a peroneal towel and a sheet. He washed appellant’s male organ, injected an anesthetic therein and inserted a ]4-ineh stopper to hold the anesthetic in place. Dr. Belt took a cystoscope from a tray in another room and went into the examination room. A cystoscope is an instrument about twice the length of a fountain pen, with a diameter smaller than a fountain pen, made of copper and nickel plated, with the end turned up and a hollow shaft. It was lubricated with a non-oily lubricant. The layman removed the stopper. Dr. Belt introduced *534 the cystoscope into the opening, inserted it through the organ into the bladder and observed the interior of the bladder. The ureter openings into the bladder and the interior of the bladder appeared normal in every respect. Catheters were inserted through the cystoscope into the bladder through both renal pelves and pushed through the ureter to the kidneys. The catheters had been threaded into the cystoscope by someone not named in the evidence. A specimen of urine was collected through the catheters into test tubes and when examined it was found that there was no bacteria or pus present. A dye solution was injected into each uretral catheter and X-rays taken while appellant was in a prone position and also while he was in a standing position and while instruments remained in his body. The catheters were withdrawn and the solution remaining in the ureter was allowed to trail to the bladder as far as the prostate level and X-ray pictures taken of the area. All X-ray pictures were negative. “Dr. Belt testified that: the examination showed appellant’s urinary tract from the kidneys down to the prostate was in a normal condition; it was a textbook picture of normalcy; after the examination he told appellant that his genito-urinary system was negative. He testified that fever which develops an unusual time after a cystoscopic examination is not the normal reaction therefrom. Dr. Belt told appellant that if any reaction occurred at all it would occur within two hours. He also told him that the examination was entirely negative, that the blood count, hemoglobin, heart pulse and respiration were normal. Dr. Belt told him that his prostate, prostatic secretion and urine were normal, that his prostate was normal in size, shape and consistency, that his bladder was normal, that both his prostate and bladder were negative as to any pathological condition, that his kidneys and ureters were normal, that he was a textbook picture of perfection. “About 24 hours later—4 o’clock the next day—appellant began feeling odd. He began having chills about 8 o’clock that night. He had chills and fever all night and all the next day, June 9. On June 10, he received some medicines from Dr. Belt’s office which he understood were sulfa drugs. He started to take the sulfa drugs the afternoon of June 10. He continued to have chills and fever on June 10 and 11. On June 11, Dr. Gutli, an assistant of Dr. Belt, went to appellant’s home, examined him and told him to continue taking the medicine. Appellant continued to have alternate chills and fever. His temperature became progressively higher, run *535 ning to 105 degrees about 10 p. m. on June 11. He was then taken to a hospital on the advice of Dr. Belt’s assistant. The chills and fever continued. The sulfa drugs were discontinued on June 13 at 2:30 p. m. but the fever and chills persisted until June 14. He remained in the hospital until the afternoon of June 16. “While in the hospital appellant was attended by Dr. Ebert, another assistant of Dr. Belt. Appellant, while in the hospital, asked Dr. Ebert what was causing his severe chills and high fever. Dr. Ebert replied,‘That’s hard to say. Everyone knows you have an acute infection of the urinary passages, but I can’t understand how it got there. But that is why you are being given the sulfa drugs and pyridium. These medicines are for infections of that kind.” Dr. Ebert, although still in the employ of Dr. Belt, was not called as a witness. “On June 27, when appellant was able to leave his home for the first time, he went to Dr. Belt’s office. He was given a prostatic massage by Dr. Guth and samples of his urine were taken for tests. After the tests were completed, he asked Dr. Guth the results. Dr. Guth told him that the tests showed that he still had a 25 per cent infection. Appellant was given prostatic massages by Dr. Guth until July 28, 1944. On each occasion Dr. Guth told him that he had an infection present in the urinary tract but that the amount was gradually decreasing so that at the time of his last visit the test showed only 10 per cent. Dr. Belt was away from Los Angeles from June 9 to June 23. Sometime thereafter and while Dr. Guth was giving appellant a prostatic massage, Dr. Belt appeared and appellant said, ‘Dr. Belt, Dr. Guth just told me that I still have 10% infection present. I didn’t have any infection when I came in here in June and I don’t see why I should have any now. ’ Dr. Belt replied that 10 per cent was within normal limits. Appellant then asked Dr. Belt what had caused the infection in the urinary tract and the severe chills and high fever. Dr. Belt replied, ‘To tell the truth, I don’t know.’ Dr. Belt did not deny having made this answer to appellant’s query. Dr. Guth was in Wisconsin at the time of the trial. His deposition was not taken. “The expert called by appellant testified that the 24 hours between the time of the examination and the time appellant began to have chills and fever probably was an incubation period for bacteria introduced into the urinary tract in the preparation for, or in the making of the examination, that *536 the introduction was evidently due to some defective condition of the instruments or carrying in from the opening of the meatus (the canal in the male organ), whose edges were not thoroughly cleansed, and that the treatment given in the hospital was for an infection of the urinary tract. “As we read the record, there is no evidence that either the stopper or the cystoscope or the catheters used in the examination were sterilized before insertion into appellant's body. Neither the lay technician nor Dr. Belt sterilized any one of them or saw any one of them sterilized. No one testified that he sterilized any one of them. On the other hand, there is no direct evidence that they were not sterilized. “Appellant’s contention is stated in his brief. He says, ‘ (a) His genito-urinary system was in a healthy and normal condition on June 7, 1944, when he reported to respondent for a urological examination, every part of that system being free of infection of every kind and description. This was established by the records and testimony of respondent which showed that immediately prior to the cystoscopie examination and on the same date appellant was given various tests, including tests of his urine, prostatic secretion, blood etc., all of which were negative and showed no infection present and, further, that the urological examination disclosed appellant’s genito-urinary system to be in a healthy and normal condition. (b) About 24 hours after the cystoscopie examination had been completed by respondent, symptoms appeared showing that an infection had developed which the evidence established was within the confines of appellant’s genito-urinary system. Appellant testified to the appearance of such symptoms approximately 24 hours after the examination. It was shown that 24 hours was the normal incubation period for a new infection of this type. And the fact that such infection which did not exist immediately before the examination, did exist approximately 24 hours after the examination, was established by the uncontradicted admissions of respondent and his assistants, by the nature of the treatment given, and also by expert testimony offered through Dr. Webb, (c) This infection had been caused by infectious matter which had been carried into appellant’s urinary tract during the urological examination. Proof of (a) and (b) give rise to this inference which is further and directly established by the expert testimony of Dr. Webb, (d) There was no issue raised regarding the professional skill or learning of the respondent, (e) The question involved was whether respondent or his employees or *537 assistants were negligent in failing to effect and maintain proper sterilization for such examination. This negligence was established as a question of fact by proof of (a), (b), and (c), under the principles of Barham v. Widing, 210 Cal. 206 [ 291 P. 173 ], and also by the inference of such negligence arising under the doctrine of res ipsa loquitur as announced in Ybarra v. Spangard, 25 Cal.2d 486 [ 154 P.2d 687 , 162 A.L.R 1258]. ‘ ‘ The evidence which has been related puts the case squarely within the doctrine of Barham v. Widing, 210 Cal. 206 [ 291 P. 173 ]. In that case the defendant, a licensed dentist, extracted the left lower molar tooth of the plaintiff. In order to operate a local anesthetic was administered by means of a hypodermic injection of novocaine. The needle was twice inserted in the gum of plaintiff at a point over the ramus or ascending prong of the left lower jawbone near the diseased tooth. After five or six days an infection of the gum and jaw developed. A physician testified that the locality of the primary infection was the point where the hypodermic needle had been inserted in the gum, that it ‘was the center of the abscess; it was deep, very deep, so that it must have been necessary that the infection was introduced ... on a needle, or perhaps an unsterile solution, because the pus was found very, very deep, ’ and that from his examination of the socket from which the tooth had been removed the socket was not the seat of the infection. The plaintiff had judgment. On appeal the defendant contended that ‘the judgment is not supported by the evidence since there is a total absence of medical expert testimony to the effect that the operation and treatment of the patient in the extracting of the-tooth did not conform to the standard accepted method of the profession in that vicinity.’ “In affirming the judgment the court stated, page 213: ‘The appellant asserts that the evidence is not sufficient to establish negligence on his part because there is no direct testimony that the needle or solution which was used in administering the anesthetic was unsterile; that a dentist, like a physician, is required to have and use only the degree of learning and skill which is ordinarily possessed by the dentists of good professional reputation in that locality. This is the rule with respect to physicians. (Hesler v. California Hospital Co., 178 Cal. 764 [ 174 P. 654 ].) Undoubtedly the same rule applies to dentists. The jury was clearly instructed to this effect. It is equally true that cases which depend upon *538 knowledge of the scientific effect of medicine, or the result of surgery, must ordinarily be established by expert testimony of physicians and surgeons. (Perkins v. Trueblood, 180 Cal. 437 [ 181 P. 642 ].) This rule, however, applies only to such facts as are peculiarly within the knowledge of such professional experts and not to facts which may be ascertained by the ordinary use of the senses of a nonexpert . . . [p. 214.] The judgment in this case must be supported, if at all, upon the theory of appellant’s negligence in failing to sterilize his hypodermic needle and the mouth and gum of the patient before performing the operation of extracting the tooth. It is true that both the dentist and his nurse testified that the usual process of sterilization was followed. It is equally true that there is no direct evidence that he failed to sterilize either the needle or the surface of the flesh where it was inserted. Barham does state that he did not remember that the dentist sterilized his mouth or gum. "'Under the circumstances of this case there is a remote possibility that the infection developed from some cause other than the defendant’s failure to sterilize the needle or the gum into which it was inserted, but the evidence is sufficient upon which to warrant the jury in finding that it was caused by his negligence in failing to follow these reasonable precautions in spite of his testimony to the contrary. The jurors were entitled to accept the solution to which these circumstances led them, in preference, even, to the positive statements of the defendant and his nurse to the contrary. After the verdict of a jury has been fairly rendered, all the circumstances of the case, together with every reasonable inference which may be drawn therefrom, will be marshalled in support of the judgment. Because of the very subtleness of the origin and development of disease, less certainty is required in proof thereof. As the court says in the ease of Dimock v. Miller, 202 Cal. 668, 671 [ 262 P. 311, 312 ]qq: “ ‘ “If . . . it is necessary to demonstrate conclusively and beyond the possibility of a doubt that the negligence resulted in the injury, it would never be possible to recover in a case of negligence in the practice of a profession which is not an exact science.” “ ‘It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion . . . *539 “ ‘In this ease no question is raised regarding the professional skill of the dentist. It is conceded that he was reasonably learned and skilful in his profession. But it is asserted that he was negligent in failing to sterilize the hypodermic needle and the gum into which he inserted the instrument. There is no conflict regarding the fact that infection of the jaw caused the injuries to Barham. It is conclusive that this infection developed within a few days after the operation on the ramus of the jaw at just the point where the needle was inserted, and not in the socket from which the tooth had been removed . . . “ ‘ [p. 216.] It was not necessary for any dentist or physician to state that the conduct of the defendant was negligent or in conflict with the usual established practice of the profession in that vicinity to administer a local anesthetic for the purpose of extracting a tooth without sterilizing the needle, or the flesh into which it is inserted. The court will take judicial knowledge of the necessity to use ordinary care to procure sterilization under such circumstances. This case was tried upon the theory that everyone concerned recognized this duty. We are, therefore, of the opinion that the evidence will support the judgment in this regard.’ (See, also, McBride v. Saylin, 6 Cal.2d 134 [ 56 P.2d 941 ]; Inderbitzen v. Lane Hospital, 124 Cal.App. 462 [ 12 P.2d 744 , 13 P.2d 905 ]; Thomsen v. Burgeson, 26 Cal.App.2d 235 [ 79 P.2d 136 ]; Anderson v. Stump, 42 Cal.App.2d 761 [ 109 P.2d 1027 ]; Mastro v. Kennedy, 57 Cal.App.2d 499, 504 [ 134 P.2d 865 ]; Dean v. Dyer, 64 Cal.App.2d 646 [ 149 P.2d 288 ]; Clemens v. Smith, 170 Ore. 400 [ 134 P.2d 424 ]; Drakes v. Tulloch, 220 Mass. 256 [ 108 N.E. 916 ]; Hafemann v. Seymer, 195 Wis. 625 [ 219 N.W. 375 ]; Swanson v. Hood, 99 Wash. 506 [ 170 P. 135, 137 ].) “In the Barham ease a physician testified as an expert not that the conduct of the dentist was negligent or in conflict with the degree of care and skill ordinarily exercised by dentists in that vicinity, but simply to establish that the infection in the plaintiff’s jaw was caused by an unsterile hypodermic needle or by an unsterile solution. In the case at bar appellant’s expert testified merely for the purpose of establishing that the infection in appellant’s urinary tract was caused by an unsterile instrument or that the parts of appellant’s body into and through which the instruments were inserted had not been completely sterilized. The purpose of the expert testimony was precisely the same in each case. *540 “There is no difference between the facts of the Barham case and the facts of the case at bar. In the Barham case a needle was inserted into the gum and a solution injected. Five or six days later an infection appeared. The point of infection was the place where the needle was inserted. It was held that, without expert testimony, the jury could infer negligence. Here, instruments were inserted into the male organ and the urinary tract and a solution injected. Twenty-four hours later an infection appeared. The point of infection was the urinary tract. The jury, without expert testimony, could infer negligence. The evidence in the present case makes for a stronger inference of negligence than that in the Barham case. In that case there was no evidence that the gum was not infected at the time the needle was inserted and the solution injected. Here the evidence—with the exception of the opinions of two defense experts which were contrary to the testimony of Dr. Belt that appellant’s genito-urinary system was negative—is without conflict that the urinary tract was in a healthy and normal condition and free from infection at the time the instruments were inserted and the solution injected. In the Barham case the infection did not appear until five or six days after the operation. Here the infection appeared about 24 hours after the examination. “With the evidence stated before the jury, the court at the request of respondent gave the following instructions: (1) ‘Negligence upon the part of a physician is never to he presumed, and in the absence of expert testimony to the contrary, it is to be presumed that a physician possesses and has exercised the requisite degree of skill and care in examining a patient.’ (2) ‘In determining the question of whether the defendant was guilty of negligence as alleged in the complaint you cannot and must not set up a standard of your own but must be governed in that regard solely by the testimony of expert witnesses who have appeared and testified in this case. ’ Under these instructions the jury was not permitted to determine for themselves that failure to properly sterilize the instruments inserted into the appellant’s body or failure to properly sterilize the parts of the body through which the instruments were inserted, or both, was negligence. Failure on the part of a physician in either of these respects is negligence as a matter of common knowledge. There is no law, as applied to the facts of this case, which requires that the jury in determining these questions be governed solely by the tsetimony of expert witnesses. The practical effect of these *541 instructions was to direct the jury to return a verdict for the respondent . . . “The court refused to give the following instructions requested by appellant: (1) ‘In determining whether defendant’s learning, skill and conduct fulfilled the duties imposed on him by law, as they have been stated to you, you are not permitted to set up arbitrarily a standard of your own. The standard, I remind you, was set up by the learning, skill and care ordinarily possessed and practiced by others of the same profession in good standing, in the same locality at the same time. It follows, therefore, that except as hereinafter explained the only way you may properly learn that standard, is through evidence presented in this trial by physicians and surgeons called as expert witnesses. “ ‘However, there is this exception to the rule just stated: when it is a matter of common knowledge that danger is involved in certain conditions or in a failure to maintain certain conditions or to take certain precautionary measures, as, for instance, failure to perform the commonly known duties of cleanliness or sterilization, expert testimony is not required to establish such a fact, but it may be judicially noticed as a part of that fund of common knowledge shared by us* with our fellow citizens generally. ‘ ‘ ‘ This exception may be otherwise stated as follows: When it is common knowledge that an event or a circumstance that has happened to or developed in a patient is of the kind that ordinarily does not occur in the absence of negligence on the part of the physician attending him, the question whether or not the condition was caused by negligence may be decided from the general circumstances as shown by the evidence and in the light of common experience and reason.’ . . . “ (2) ‘If you believe from the preponderance of the evidence that defendant, Elmer Belt, or any of his agents or employees, negligently used or employed either unsterilized instruments or solutions in the examination of the plaintiff or in the injecting into him of such solutions and that as the proximate result thereof infection was introduced into plaintiff thereby injuring him, plaintiff is entitled to recover from defendant, Elmer Belt, his damages herein in such sum as in your judgment, considering all of the evidence, will justly compensate him for any damage you believe him to have sustained as the proximate result thereof.’ In Pierce v. Taterson, 50 Cal.App.2d 486, 489 [ 123 P.2d 544 ], the court quoted with approval *542 from Sim v. Weeks, 7 Cal.App.2d 28 [ 45 P.2d 350 ], as follows: “It is well settled that a physician and surgeon cannot be held to guarantee the results of his professional services. ‘However, it is equally well settled that in undertaking a treatment of a patient the practitioner impliedly contracts and represents not only that he possesses the reasonable degree of skill and learning possessed by others of his profession in the locality, but that he will use reasonable and ordinary care and skill in the application of such knowledge to accomplish the purpose for which he is employed; and that if injury is caused by want of such skill or care on his part he is liable for the consequences which follow. (Houghton v. Dickson, 29 Cal.App. 321 [ 155 P. 128 ]; Nelson v. Painless Parker, 104 Cal.App. 770 [ 286 P. 1078 ]; Perkins v. Trueblood, 180 Cal. 437 [ 181 P. 642 ]; Hesler v. California Hospital Co., 178 Cal. 764 [ 174 P. 654 ]; Ley v. Bishopp, 88 Cal.App. 313 [ 263 P. 369 ]; Patterson v. Marcus, 203 Cal. 550 [ 265 P. 222 ].)” ’ (Italics added.) Appellant does not contend that respondent did not have the requisite knowledge and skill. His contention is that respondent was negligent in no proper sterilization. Where the evidence conflicts, each party is entitled to have the law given to the jury which is applicable to his theory of the case and the testimony of his witnesses. (Kelley v. City etc. of San Francisco, 58 Cal.App.2d 872, 876 [ 137 P.2d 719 ]; Buckley v. Shell Chemical Co., Ltd., 32 Cal.App.2d 209, 216 [ 89 P.2d 453 ]; Dowdall v. Gilmore Oil Co., Ltd., 18 CaLApp.2d 1, 5 [ 62 P.2d 1051 ]; Renton, Holmes & Co. v. Monnier, 77 Cal. 449, 455 [ 19 P. 820 ].) This injunction is not met when the instructions remove that theory from consideration of the jury. (Morrow v. Mendleson, 15 Cal.App.2d 15, 21 [ 58 P.2d 1302 ].) It is the duty of the court to give instructions expounding the law on every reasonable theory of the case finding support in the evidence. (Megee v. Fasulis, 65 Cal.App.2d 94, 101 [ 150 P.2d 281 ].) “The evidence, without the testimony of experts, was sufficient to warrant the jury in finding that the infection was caused by the negligence of respondent. It was, therefore, prejudicial error to give the two instructions requested by respondent and to refuse to give the two instructions requested by appellant. ’ ’ The instructions that were given as above quoted unequivocally removed the doctrine of res ipsa loquitur from the case. No other interpretation thereof is possible. The instruction which was given on that subject and upon which the majority *543 rely as curing the questioned instruction, is not accurate and could not have removed the positive impression given to the jury by the erroneous instruction. As phrased in the majority opinion, it read: “. . . 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 uncontradicted evidence that the injury occurred without any failure of duty on his part.” The instruction given, in fact, reads: “If, and only in the event, you should find that plaintiff, H. T. Moore, sustained injury as the result of the introduction by defendant, Elmer Belt, or any of-his agents or employees, of a new infection you arc instructed as follows: An inference arises that the proximate cause of such injury was some negligence or malpractice on the part of the defendant, Elmer Belt, or his agents or employees. That inference is a form of evidence, and if there is none other tending to overthrow it, or if the inference preponderates over contrary evidence, it warrants a verdict in favor of plaintiff. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendant to rebut the inference by showing that the injury in question occurred without being proximately caused by any failure of duty on his part, or on the part of any of his agents or employees. “You are instructed that where an inference is permitted by law, that such inference is only a species of evidence, and where such inference is rebutted by clear, positive and uneontradieted evidence, then such inference is dispelled and disappears from the case.” Manifestly, the instruction was in square conflict with the instruction on expert testimony and its effect would be erased from the minds of the jury. It would indicate to the jury that expert evidence was required under all circumstances. In criticizing the instruction on res ipsa loquitur offered by plaintiff (but refused) the majority states that it omitted the requirement of proximate cause. While such issue is not mentioned in the instruction, it had no place there, for it dealt solely with the evidence required to establish negligence. It was not a formula instruction. It reads: “In determining whether defendant’s learning, skill and conduct fulfilled the duties imposed on him by law, as they have been stated to *544 you, you are not permitted to set up arbitrarily a standard of your own. The standard, I remind you, was set up by the learning, skill and care ordinarily possessed and practiced by others of the same profession in good standing in the same locality at the same time. It follows, therefore, that except as hereinafter explained the only way you may properly learn that standard, is through evidence presented in this trial by physicians and surgeons called as expert witnesses. “However, there is this exception to the rule just stated: when it is a matter of common knowledge that danger is involved in certain conditions or to take certain precautionary measures, as, for instance, failure to perform the commonly known duties of cleanliness or sterilization, expert testimony is not required to establish such a fact, but it may be judicially noticed as a part of that fund of common knowledge shared by us with our fellow citizens generally. "This exception may be otherwise stated as follows: When it is common knowledge that an event or a circumstance that has happened to or developed in a patient is of the kind-that ordinarily does not occur in the absence of negligence on the part of the physician attending him, the question whether or not the condition was caused by negligence may be decided from the general circumstances as shown by the evidence and in the light of common experience and reason.” The subject of proximate cause was properly and adequately covered in other instructions. The majority opinion, in an endeavor to escape the holdings in Barham v. Widing, 210 Cal. 206 [ 291 P. 173 ], and other eases cited in connection therewith, has this to say: “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. Therefore the plaintiff has not necessarily brought the injury home to the defendant. Before the compelling inference based on common knowledge, which is at the root of the res ipsa loquitur doctrine, would be justified it became necessary for the plaintiff to eliminate himself as a proximate cause of the injury.” The evidence was not “remote” that the defendant did not cause the injury in the cited cases. In *545 the Barham case the defendant and his nurse testified positively that the needle was sterilized. The same is true of Bellandi v. Park Sanitarium Assn., 214 Cal. 472 [ 6 P.2d 508]; Meyer v. McNutt Hospital, 173 Cal. 156 [ 159 P. 436 ]; Dean v. Dyer, 64 Cal.App.2d 646 [ 149 P.2d 288 ]; and Mastro v. Kennedy, 57 Cal.App.2d 499 [ 134 P.2d 865 ]. If it is meant by the quoted statement that all the evidence must “necessarily” show that defendant caused the injury, and that similarly it must all show that some independent physical condition of plaintiff was not the cause, then we have some strange law on res ipsa loquitur. The fallacy of the reasoning is pointed out in Mastro v. Kennedy, supra. There plaintiff suffered an infection in the jaw after the dentist had removed a tooth, and in the process administered a painkiller by hypodermic needle. The court there said; “We may also accept as established facts, that immediately after the extraction there was no infection on the roots of the tooth nor in the sockets; that a serious infection set in which caused plaintiff much suffering and expense over a period of two years. “The case of Barham v. Widing, 210 Cal. 206 [ 291 P. 173 ], has features quite similar to those of the instant case. There, a dentist was accused of malpractice because he failed to sterilize the hypodermic needle used in injecting an anesthetic, and to sterilize the gums before extracting a tooth . . . [quoting from Barham v. Widing, supra]: ‘As the court says in the case of Dimock v. Miller, 202 Cal. 668, 671 [ 262 P. 311, 312 ]: “ ‘ “If . . . it is necessary to demonstrate conclusively and beyond the possibility of a doubt that the negligence resulted in the injury, it would never be possible to recover in a case of negligence in the practice of a profession which is not an exact science.” “ ‘It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion. It is sufficient if there is substantial evidence upon which to reasonably support the judgment . . .’ “Defendants seek to distinguish the instant case from the Barham case, because there, the infection started from the exact spot of the injection, while in this case it was in the *546 general locality but not necessarily in the exact spot of the injections. This distinction is too tenuous to be sound. Here, the infection was in the region where the needle pierced the unsterilized gums, and the reasonable inference might follow, if drawn by the jury, that a germ on the unsterile gums was carried into the tissue on the needle and caused the infection. The result of an unsterile condition is a matter of common knowledge under the cases already cited. “. . . 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 . . . [cases cited]. “In Roberts v. Parker, 121 Cal.App. 264 [ 8 P.2d 908 ], a dentist was sued for malpractice where osteomyelitis of the jawbone set in after an operation where no X-ray had been taken to determine the condition of the field of operation. Experts testified that under the standards of good practice prevailing in the community an X-ray should have been taken before the tooth was extracted. There was evidence introduced on behalf of the defendant tending to prove that the disease had its source other than in the extraction of a tooth. It was argued that there was nothing to show that the failure to use due care on the part of the dentist was the proximate cause of the osteomyelitis. In disposing of this argument the court said: “'Therefore, if in spite of the testimony tending to show a different origin of the disease there be testimony to sustain the opposite conclusion which has been reached by the jury, its verdict must be sustained. In other words after the verdict of the jury has been fairly rendered, all the circumstances of the case, together with any reasonable inference which may be drawn therefrom, will be marshaled in support of the judgment. (Barham v. Widing, supra.) Measured by the foregoing rules the circumstances of the present case are legally sufficient to sustain the jury’s verdict. (Dimock v. Miller, supra; Barham v. Widing, supra; Ley v. Bishopp, supra.) ’ ” There is clearly no basis for a distinction between the case at bar and Barham v. Widing, supra, so far as the applicability of the doctrine of res ipsa loquitur is concerned, and the attempted distinction in the majority opinion will not stand the test of intelligent unbiased scrutiny. If this doc *547 trine is applicable to this case, then there can be no question but that the jury was erroneously instructed, and that such error was prejudicial to plaintiff. I would, therefore, reverse the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9539132. Public record. Not legal advice.