PATTERSON, J. pro tem.
This is an appeal from a judgment against defendant, a physician and surgeon, for the sum of $20,000 entered pursuant to a jury's verdict awarding the plaintiff that sum in damages for malpractice.
The defendant performed a total hysterectomy operation upon the plaintiff. After the operation plaintiff developed a leakage of urine. Plaintiff testified that this first occurred while she was in the hospital three days after the operation. It was reported to the doctor 10 days after the operation. She reported from time to time to the doctor and received some treatment without effect. She was examined by another physician, a Dr. Lamb, with the consent of the defendant. Dr. Lamb discovered a fistula or hole in plaintiff's bladder. The plaintiff returned to the defendant who made an examination and also found the fistula. Plaintiff entered the hospital
Three doctors testified on behalf of the plaintiff. Dr. Lamb testified as to his examination of the plaintiff, the finding of the fistula, and that he informed the defendant of his findings. He further testified that a fistula of this kind could have been caused by a cut from a scalpel during an hysterectomy operation, from the use of scissors, from clamps improperly placed, or by infection which had cut off the blood supply from that portion of the bladder. He stated that a fistula had never followed any of the approximately 300 hysterectomies he had performed. The doctor also testified that if the fistula had been caused by cutting the wall of the bladder during the operation, leakage would be expected to appear almost immediately and in any event sooner than 10 days. He expressed no opinion as to how the fistula in the present case was caused.
Dr. E.B. McElligott, who performed the first repair operation and who assisted in the final repair operation, testified he found no disease or anything unusual in the bladder which would cause it to break down but stated he had no opinion as to the cause of the fistula. He testified that a fistula could be caused by a suture in the bladder, by cutting, by clamping, by poor blood supply, by infection, by childbirth, or that it could result from pressure against the bladder by an enlarged uterus. He also testified that in performing an hysterectomy you separate the bladder from the uterus by use of your fingers and a sponge which is considered good procedure; that it is possible that a bruise could result to the bladder during the course of that phase of the operation which in turn could develop a fistula. He stated that a fistula developing from an hysterectomy is not too uncommon.
Dr. Harry Luke Harrison, Jr., testified that he is a specialist in the field of obstetrics and gynecology; that in his entire practice he had observed approximately two dozen fistulas; that only in one-tenth to two-tenths of one per cent of all hysterectomies does a fistula follow. He examined the plaintiff and observed the fistula but expressed no opinion as to its cause.
None of the doctors called by the plaintiff criticized in any manner the operative procedure followed by the defendant. None of them expressed a view that the facts evidenced any failure by the defendant to possess the degree of learning and skill ordinarily possessed by physicians in good standing practicing in the locality. Neither did any of them suggest that the facts indicated any failure to exercise due care in applying that knowledge and skill in the treatment of the plaintiff.
The defendant called three doctors as witnesses. The first was Dr. John Hunt Shephard who testified he had examined the operative records of the hospital concerning the procedure followed by the defendant in performance of the operation and that there was nothing which would have been done differently by any prudent surgeon of general practice and that the defendant had not failed to do anything which should have been done by a reasonably practical and skillful surgeon in the area. He further testified that a possible fistula is a recognized hazard in hysterectomies and that a fistula may develop from the performance of an hysterectomy without negligence on the part of the doctor. A fistula had never followed any of the hysterectomies that he had performed although he stated that they sometimes follow such an operation and one sees many of them in medical centers. In his opinion the incidence would be less than one per cent. Dr. Shephard also stated the causes of vesicle vaginal fistulas following a total abdominal hysterectomy are congenital defects in the bladder, the use of instruments, suturing, infections or tumor formations.
Dr. Thomas L. Blanchard testified that he had examined the operative routine and there was nothing in the record which differed from the manner in which such an operation would be performed by a reasonably prudent and skillful surgeon. He further testified that a fistula in the bladder might
Dr. Pace, the defendant, after describing his treatment and operative procedure, stated that so far as he could ascertain he did not cause any injury to the plaintiff's bladder by the use of scalpel, scissors, clamps or in suturing. He stated that removal of the uterus disclosed the presence of two cysts, a fibroid and chronic cervicitis. The uterus was found to be enlarged. The causes of fistula following hysterectomy were stated to be: lacerations of the bladder with a knife, scissors or needle; undue pressure or extension on the bladder during the operation; infections, present or previous; poor blood supply and causes inexplainable to the surgeon. He stated that a fistula was a calculated risk in this type of operation and further stated he did not know its cause in the present case. His testimony also disclosed that the upper portion of the uterus is about one inch from the wall of the bladder and the lower portion is next to the wall of the bladder.
The defendant complains first that the court erred in giving instructions on the doctrine of res ipsa loquitur. The court gave an instruction which explained the essentials of the doctrine of res ipsa loquitur and further instructed that from the happening of the injury involved in this case there arose an inference that there was some negligent conduct on the part of the defendant.
The facts here are similar to those in Farber v. Olkon, 40 Cal.2d 503 [254 P.2d 520], and Engelking v. Carlson, 13 Cal.2d 216 [88 P.2d 695]. In the Farber case, decided since this case was submitted, the Supreme Court had occasion to state again the rule regarding the doctrine of res ipsa loquitur in malpractice cases. In that case the plaintiff suffered a fracture of both femur bones in the course of shock treatment in a mental institution. From the expert testimony it appeared that this result was one of the hazards of such a treatment although the overall incidence of fractures in such cases was only from one-half to three and one-half per cent. In holding that res ipsa loquitur did not apply the court said, "That doctrine applies in medical malpractice cases only where a layman is able to say as a matter of common knowledge and observation, or from the evidence can draw an inference, that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised." In Engelking v. Carlson, supra, the defendant in the performance of a knee operation severed
The plaintiff contends that the doctrine of res ipsa loquitur is applicable in this case in view of the testimony of Dr. Lamb and Dr. Shephard that in the many hysterectomies performed by them no fistulas had resulted, and also in the testimony of Dr. Harrison and Dr. Shephard that the incidence of the fistulas in such cases is small.
Plaintiff next contends that the instructions are within the spirit of the holding of Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258]. In that case a patient in a hospital undergoing an appendectomy received injuries to his shoulder due to trauma. The court there pointed out that the patient received "a distinct injury to a healthy part of the body not the subject of treatment nor within the area covered by the operation." The court stated that the injury was obviously the result of someone's negligence. In the present case, however, the area affected was within the operating field and was a recognized hazard of such an operation.
For the reasons above stated the judgment is reversed.
Dooling, J., concurred.
The evidence of defendant's negligence is irrefutable and the jury's verdict rests on that evidence, uninfluenced, I believe, by any hypercritical theories of judicial platitudes. Hence this court cannot say that the instruction on the res ipsa loquitur doctrine was prejudicial.
But I am not satisfied that it was error. All the medical testimony showed that a fistula in the bladder caused by an hysterectomy operation was a very, very rare occurrence. One expert testified that in only one-tenth to two-tenths of one per cent did it happen. One testified that the incidence
Furthermore I believe that the res ipsa instruction was properly given. Both Ybarra v. Spangard, 25 Cal.2d 486, 489 [154 P.2d 687, 162 A.L.R. 1258] and Farber v. Olkon, 40 Cal.2d 503, 510 [254 P.2d 520], adhere to the rule that the instruction is properly given where, from the facts in evidence, the jury could draw the inference that the injuries "were not such as ordinarily would have followed if due care had been exercised...." Where the undisputed testimony shows that a fistula would not be expected in more than one-tenth of one per cent of such operations and, in the practice of one of the witnesses, had not occurred in more than 300 of such operations, the jury might well have concluded that the injury here was one that would not have ordinarily followed if due care had been exercised.
A petition for a rehearing was denied July 2, 1953, and respondent's petition for a hearing by the Supreme Court was denied July 28, 1953.