# Clark v. Gibbons > California Supreme Court · April 21, 1967 · 66 Cal. 2d 399 URL: https://www.frixlaw.com/law-library/cases/9853048 ## Case - **Full name:** EUNICE D. CLARK, Plaintiff and Respondent, v. HAROLD M. GIBBONS Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** April 21, 1967 - **Citations:** 66 Cal. 2d 399; 58 Cal. Rptr. 125; 426 P.2d 525; 1967 Cal. LEXIS 312 - **Precedential status:** Published - **Opinion:** Concurrence by Traynor - **Judges:** Peters, Tobbiner, Traynor, McComb - **Cited by:** 43 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/9853048 ## Opinion text TRAYNOR, C. J. I concur in the judgment under the compulsion of Quintal v. Laurel Grove Hospital, 62 Cal.2d 154 [ 41 Cal.Rptr. 577 , 397 P.2d 161 ], but deem it appropriate to set forth why the evidence in this case, as in Quintal , does not justify a res ipsa loquitur instruction. A physician’s duty is to exercise that degree of care and skill ordinarily possessed and exercised by members of his profession under similar circumstances. (Sinz v. Owens (1949) 33 Cal.2d 749, 753 [ 205 P.2d 3 , 8 A.L.R.2d 757 ].) He *422 does not guarantee a cure. The doctrine of res ipsa loquitur cannot properly be invoked to make him an insurer of the recovery of persons he treats. The Latin words cannot obliterate the fact that much of the functioning of the human body remains a mystery to medical science and that risks inherent in a given treatment may occur unexplainably though the treatment is administered skillfully. The occurrence of an injury that is a calculated risk of an approved course of conduct, standing alone, does not permit an inference of negligence. Such an inference must be based on more than speculation. If it is to be drawn from the happening of an accident, there must be common knowledge or expert testimony that when such an accident occurs, it is more probably than not the result of negligence. (Siverson v. Weber (1962) 57 Cal.2d 834, 836 [ 22 Cal.Rptr. 337 , 372 P.2d 97 ]; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817 [ 26 Cal.Rptr. 633 , 376 P.2d 561 ]; Cavero v. Franklin General Benefit Soc. (1950) 36 Cal.2d 301, 309 [ 223 P.2d 471 ].) A showing that such an accident rarely occurs does not justify an inference of negligence without a further showing that when the rare event happens, it is more likely than not caused by negligence. 1 (Siverson v. Weber, supra; Seneris v. Haas (1956) 45 Cal.2d 811, 824-826 [ 291 P.2d 915 , 53 A.L.R.2d 124 ].) Nor does evidence of specific acts of negligence justify an inference of negligence based on res ipsa loquitur, for the inferences the jury may reasonably draw from the happening of the accident alone obviously cannot be determined by evidence of the defendant’s conduct. There is no support in the record for a res ipsa loquitur instruction. Two unfortunate events combined to cause the injury, namely, the premature termination of anesthesia and the premature termination of surgery. The former was in the area of Dr. Selmants’ responsibility, the latter in Dr. Gibbons ’. Although there is evidence that premature termination of anesthesia is unusual, there is no evidence that when it occurs it is more probably than not caused by negligence. On the contrary, there is a satisfactory medical explanation consistent with due care. There is an inherent risk that a patient *423 may have an excessive amount of myelin on his nerves. This condition cannot be detected in advance. It either prevents the deposit of an adequate quantity of the anesthetizing agent on the nerve or accelerates the rate at which it disappears. Physiological and pharmacological evidence indicated that it was such an overabundance of myelin that caused the premature termination of anesthesia in this case. Accordingly, there is no basis for an inference that premature termination of anesthesia is probably the result of negligence. The hiatus in proof cannot logically be filled by invoking the rarity of the result and specific evidence of negligence. The facts that premature termination is rare, that plaintiff felt that she could not breathe and her voice became squeaky after anesthesia, and that defendants did not discuss the anticipated duration of surgery shed no light on the question whether premature termination of anesthesia is ordinarily caused by negligence. 2 The record is likewise devoid of any evidence that premature termination of surgery in cases of this kind is ordinarily the result of negligence. Indeed, there is not even evidence that such termination is rare. Although there is evidence that Dr. Gibbons was negligent in failing to consider the relevant factors before making his decision to terminate the operation, such evidence of specific negligence sheds no light on the inferences that may be drawn from the happening of the accident itself. The absence of any basis for invoking res ipsa loquitur against either defendant individually also forecloses invoking it against them jointly under Ybarra v. Spangard (1945) 25 Cal.2d 486 [ 154 P.2d 687 , 162 A.L.R. 1258 ]. The Ybarra case involved an accident that was clearly the result of someone’s negligence, and the court imposed a burden of explanation upon all the defendants who had assumed control of the unconscious plaintiff. That case cannot reasonably be invoked when the accident itself affords no evidence of negligence. *424 The expansion of res ipsa loquitur undertaken in Quintal places too great a burden on the medical profession and may-result in an undesirable limitation on the use of procedures involving inherent risks of injury even when due care is used. (Siverson v. Weber, supra, 57 Cal.2d 834 .) An anesthesiologist and a surgeon, confronted with one of the inherent risks of an operation not susceptible to advance calculation, may be found liable for any unfortunate consequence. In planning a course of action they may therefore feel compelled to consider not simply the best interests of the patient but the procedure that will be most readily justified to a lay jury. The essence of Quintal is restated in the majority opinion, which first discredits rarity alone as a basis for res ipsa, but then states: "The likelihood of a negligent cause is increased if the low incidence of accidents when due care is used is combined with proof of specific acts of negligence of a type which would have caused the occurrence complained of. When these two facts are proved, the likelihood of a negligent cause may be sufficiently great that the jury may property conclude that the accident was more probably than not the result of someone’s negligence.” That statement might be appropriate for counsel to make in arguing to the jury that it could infer from evidence of defendants’ negligent conduct that such conduct caused the injury. It has no relation, however, to res ipsa loquitur, which involves the inferences that may be drawn from the mere happening of the accident. “To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. Where risks *423 are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which defendant is not responsible.” (Siverson v. Weber, supra, 57 Cal.2d 834, 839.) The majority opinion mentions that Dr. Selmants did not note in his operative report that the surgery was not completed, and that Dr. Gibbons charged plaintiff less than his usual fee and his partner offered to fuse the ankle for a token fee. Whatever remote relevance these facts might have, they add nothing to a determination of the inferences that may reasonably be drawn from the happening of the injury alone. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9853048. Public record. Not legal advice.