Opinion

Barton v. Owen

  • 71 Cal. App. 3d 484
  • 139 Cal. Rptr. 494
  • 71 Cal. App. 2d 484
  • 1977 Cal. App. LEXIS 1631
Court
California Court of Appeal
Filed
Jul 1, 1977
Status
Published
Author
Jefferson
On the bench
Kingsley, Jefferson
Cited by
30 cases

proposed voir dire question and jury admonition properly denied, where inquiry and admonition would inject references to medical malpractice insurance crisis

How later courts described this case

  • proposed voir dire question and jury admonition properly denied, where inquiry and admonition would inject references to medical malpractice insurance crisis

Written by the judges who cited it.

The opinion

JEFFERSON (Bernard), J.

I concur in the result reached by the majority. I agree that the judgment in favor of defendant Wasserman should be affirmed on the ground that the record does not establish any negligence on the part of defendant Wasserman. I agree also that the judgment in favor of defendant Owen should be reversed because of the trial court’s giving of BAJI instruction No. 6.28, relating to a patient’s duty to follow his doctor’s instructions and making a negligent failure of the patient to do so a defense to liability on the part of a doctor for malpractice. Since there was no evidence of any negligent failure of the plaintiff to follow instructions which constituted a proximate cause of plaintiff’s injury, it was prejudicial error for the trial court to give BAJI instruction No. 6.28.

Since the two matters referred to justify the majority’s affirmance of the judgment in favor of defendant Wasserman and reversal of the judgment in favor of defendant Owen, respectively, I do not reach the other contentions of appellant discussed by the majority. Because the case must be retried with resnect to defendant Owen, and we do not know what evidence will be presented on a retrial, I deem the majority’s discussion of other points of alleged error raised by appellant to be unnecessary, unwarranted and unwise dicta.

Appellant’s petition for a hearing by the Supreme Court was denied August 25, 1977.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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