Moore v. Belt

TRAYNOR, J., Dissenting.

I cannot agree that it was not prejudicially erroneous for the trial court to limit the testimony of plaintiff’s only expert witness. In a field of law in which expert testimony is essential, the rulings below deprived plaintiff of a fair opportunity to prove the allegations of his complaint.

It was necessary for plaintiff to establish by competent evidence that (1) the. infection was centered in the genito-urinary tract, (2) there was no infection, latent or chronic, when defendant made the examination, and that (3) the infection was caused by defendant’s failure to exercise due care in the conduct of the examination, particularly in the sterilization of the instruments used.

Plaintiff does not dispute that there was no direct evidence tending to establish that defendant was negligent. It was not essential that he produce such evidence. Upon proof that the infection originated in the area examined and that it was not present before the examination, the jury could reasonably infer that the infection was introduced by the examination and therefore caused by the negligence of the defendant. It is common knowledge that infections do not ordinarily occur during medical treatment unless there is negligence. (Barham v. Widing, 210 Cal. 206, 216 [ 291 P. 173 ].) If the plaintiff establishes by expert testimony that his infection arose during medical treatment and that it would not ordinarily arise in the absence of negligent treatment, the jury may infer negligence on the basis of res ipsa loquitur. (Sinz v. Owens, 33 Cal.2d 749, 753 [ 205 P.2d 3 ]; Bellandi v. Park Sanitarium Assn., 214 Cal. 472, 480 [ 6 P.2d 508 ]; Barham v. Widing, supra.)

Plaintiff could rely upon res ipsa loquitur, however, only if he established by expert testimony the first two elements of his case, the location of the infection and the nature of its origin, which are not matters of common knowledge. (Perkins v. Trueblood, 180 Cal. 437 [ 181 P. 642 ]; Sim v. Weeks, 7 Cal.App.2d 28 [ 45 P.2d 350 ]; Slimak v. Foster, 106 Conn. 366 [ 138 A. 153 ]; Christe v. Callahan, 124 F.2d 825 ; see cases collected in 141 A.L.R. 5 -50.)

*548 Plaintiff introduced the testimony of Dr. Prank Webb. After plaintiff’s counsel had interrogated Dr. Webb about his educational background and professional experience defense counsel raised doubts as to the witness’s qualifications. The trial court permitted Dr. Webb to answer only one hypothetical question based on evidence before the court. He was not permitted to testify about his experience with diseases and infections of the genito-urinary tract, although the offer of proof in chambers indicated that he had considerahle knowledge thereof. Plaintiff’s counsel made it clear that “we are not asking the witness to testify as to the procedure that was used. We are asking him to testify as to the cause and nature of this infection.” The trial court nonetheless refused to permit any further questioning about the location and nature of the infection upon defense counsel’s objection that the witness was not an expert in the performance of cystoscopie examinations and had not seen one performed in Los Angeles in 1944. This ruling precluded the witness from testifying that the infection was not caused by a septic condition in the tract at the time of the examination and that the condition was not a local or systemic one originating before the examination. Plaintiff’s ease depended upon his ability to disprove those possibilities.

During the course of his examination, the witness stated that he assumed the examination had been competently conducted. On cross-examination, defense counsel asked the witness:

“Q. Doctor, from the hypothetical question that was propounded to you you assumed that the cystoscopie examination was made very competently and very thoroughly, did you not ?

“A. Manipulation of the instruments or manual—what I mean to say is that the instruments or the manual manipulation of them was evidently very good.

“Mr. Sterry [defense counsel] : I move that the answer be stricken as not responsive to the question.

“Will you read the question?

“(The reporter reads the last question.)

“A. I assumed that-

‘ ‘ Q. Will you just answer that yes or no, doctor ?

“A. I can answer that yes.

“Mr. Sterry : That is all. ’ ’

On redirect examination, plaintiff’s counsel asked Dr. Webb how he would explain his answer. Upon objection, the court refused to permit an answer to the question on the ground *549 that there was no ambiguity in defense counsel’s question or in the witness’s answer. The record does not sustain that holding. From the offer of proof in chambers, it appears that Dr. Webb meant to testify only that the actual physical conduct of the examination was competent. He did not intend by that statement to express an opinion about the sterilization technique before the examination. Since he was not permitted to make that explanation, the jury was left with the impression that plaintiff’s only expert witness approved defendant’s conduct of the examination in all its phases. The prejudicial effect of the trial court’s ruling is readily apparent. It has been repeatedly held that the refusal of a trial court to permit the witness to explain a yes or no answer is reversible error. (McGuire v. Baird, 9 Cal.2d 353, 355-356 [ 70 P.2d 915 ]; Webber v. Park Auto Transportation Co., 138 Wash. 325 [ 244 P. 718 ]; 58 Am.Jur. 321.)

The trial court refused to permit the plaintiff’s witness to answer more than a single hypothetical question and expressed doubt as to his competence to testify at all. The approval of that ruling by the majority opinion throws an overwhelming burden of proof on the plaintiff in malpractice cases. The majority opinion states that the exclusion of Dr. Webb’s testimony was not erroneous for the reason that “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.” This statement and the cases cited in its support are inapplicable to the present case. It may be conceded that a medical expert called to testify that a defendant did not exercise that degree of care and skill ordinarily exercised by members of the profession under similar circumstances must be familiar with the standard of care prevalent among the members of the profession. A medical practitioner who testifies as to the standard of care ordinarily exercised by a specialist in a given case must either be a specialist himself or must show familiarity with the methods of such specialists. (McGuire v. Baird, 9 Cal.2d 353, 356 [ 70 P.2d 915 ]; Sinz v. Owens, 33 Cal.2d 749, 753 [ 205 P.2d 3 ].) Dr. Webb, however, did not “testify to the degree of care against which the treatment given is to be measured.” (Sinz v. Owens, 33 Cal.2d 749, 753 [ 205 P.2d 3 ].) He was called to testify solely as to the location and nature of the infection, matters within the *550 province of any competent medical practitioner. His degree of familiarity with cystoscopy technique and the conduct of cystoscopic examinations is irrelevant, for he was not called to testify about the technique or the standard of conduct of the examination. “The law does not require the best possible kind of a witness, but only persons of such qualifications as the community daily and reasonably relies upon in seeking medical advice . . . the ordinary medical practitioner should be received on all matters as to which a regular medical training necessarily involves some general knowledge.” (2 Wigmore, Evidence, § 569, p. 665.) When the subject of inquiry is not the required standard of care but the nature of an ailment or its location, “a physician of practice and experience is an expert and ... it is not necessary that a witness of this class should have made the particular disease involved in any inquiry a specialty in order to make his testimony admissible as an expert.” (Drucker v. Philadelphia Dairy Products Co., Inc., 35 Del. 437, 441 [ 166 A. 796 ]; Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 398 [ 34 N.E.2d 367 ] ; Johnson v. Winston, 68 Neb. 425, 430 [ 94 N.W. 607 ]; Young v. Stevens, 132 N.J.L. 124, 126 [ 39 A.2d 115 ]; Hathaway’s Administrator v. National Life Insurance Co., 48 Vt. 335, 351 ; Swanson v. Hood, 99 Wash. 506, 515, 516 [ 170 P. 135 ].)

The testimony that plaintiff's witness was allowed to present demonstrates that he is a competent practicing physician familiar with general medical practice, that he has kept abreast of the latest developments by research and study, and that he has had experience with diseases and infections of the genito-urinary tract. Treatment of infections and knowledge of their nature, cause, and effect, are the stock in trade of the practicing physician. The growth of specialization does not disqualify a general practitioner from signalizing the existence of an infection in a patient’s body merely because he is not a specialist on that part of the body where the infection exists. The trial court, therefore, committed error in holding that Dr. Webb was not qualified to testify as to the location of plaintiff’s infection and to its probable time of origin.

The majority opinion holds that even if it were error to exclude Dr. Webb’s testimony, it would not be prejudicial since Dr. Webb testified in reply to the one question he was permitted to answer over defendant’s objection that he believed the infection was carried into the urinary tract by the *551 examination. Defendant contends that the witness’s answers to the other questions would have been merely reiterative of the reply to the first. The record does not support that contention.

It is true that Dr. Webb stated at the close of a lengthy answer to an even lengthier question that he believed the infection was carried into the urinary tract by the examination. This testimony was essential to plaintiff’s case. It was also essential that plaintiff negative the possible causes of the infection suggested by defendant and his expert witnesses. The testimony excluded by the trial court would have constituted evidence by a qualified expert that the infection could not have been caused by the conditions relied upon by defendant. Plaintiff was entitled to have that evidence considered by the jury in opposition to the testimony of defendant’s expert witnesses, and it was prejudicial error to deprive him of such evidence. Moreover, even as to the one question that Dr. Webb was permitted to answer, the prejudicial effect of the ruling is clearly apparent. The manner in which the trial court informed the jury that Dr. Webb was qualified to answer only one question indicated a low degree of belief in the witness’s qualification, 1 and obviously had its effect upon the jury’s consideration of the weight to be given that testimony. There is no doubt that considerations of lack of expertness are properly presented to the jury to govern the weight to be given the testimony. (McGhee v. Raritan Copper Works, 133 N.J.L. 376, 377 [ 44 A.2d 388 ]; Salmon v. Rathjen, 152 Cal. 290, 299 [ 92 P. 733 ].) These considerations were properly raised by opposing counsel on cross-examination, but the trial court added strength to the argument of defense counsel by the manner of its ruling. It would be an extremely independent jury that, notwithstanding the cumulative effect of these several erroneous rulings, Would choose to believe plaintiff’s witness. Plaintiff was entitled to have his ease stand or fall on its own merits, and insofar as the rulings of the trial court prevented its consideration thereon, the error was prejudicial.

Finally, it is contended that the extent of examination of an expert witness is within the discretion of the trial court and that its ruling will not be disturbed on appeal. The trial court, however, is not a final judge of the qualifications of *552 an expert witness. Its ruling upon those qualifications is reviewable to determine whether there has been an abuse of discretion. The exclusion of a qualified expert because of an erroneous view of his qualifications is, as a matter of law, an abuse of discretion requiring reversal. (Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 399 [ 34 N.E.2d 367 ]; Johnson v. Winston, 68 Neb. 425, 430 [ 94 N.W. 607 ]; 7 Wigmore, Evidence, § 2090, p. 454.)

Plaintiff produced a competent medical witness to testify to matters within the knowledge of all competent medical practitioners. This much he was properly required to do. In erroneously excluding that witness’s relevant testimony the trial court abused its discretion and effectively denied plaintiff a fair opportunity to prove his case. (Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 399 [ 34 N.E.2d 367 ].) I would therefore reverse the judgment.

Gibson, C. J., and Carter, J., concurred.

The opinion was modified to read as above and appellant’s petition for a rehearing was denied January 12, 1950. Carter, J., and Traynor, J., voted for a rehearing.

“I am allowing him to answer that one question only that I think he is qualified to answer, and you will give it that belief to which you believe that it is entitled. ’ ’