This is an appeal by Rudine B. LeMons from a judgment exonerating respondents, Dr. Paul Ward and the Regents of the University of California, of any liability for medical malpractice. This court must decide whether the trial court committed prejudicial error in
In September 1971, appellant was referred to Dr. Ward regarding an inflamed nasal cyst. Dr. Ward was a professor of surgery at the University of California at Los Angeles and chief of head and neck surgery at the university's hospital. In examining appellant, Dr. Ward discovered a second lump below her left ear. He diagnosed the lump as a "mixed" or benign tumor in appellant's parotid gland.
Dr. Ward advised appellant that the parotid tumor was more serious than the nasal cyst and should be removed. Appellant was reluctant to have the parotid surgery (i.e., a parotidectomy), since she had been aware of the lump for at least 10 years and it had never bothered her. Nevertheless, Dr. Ward considered the lump potentially malignant and capable of spreading quickly, thereby endangering the nearby facial nerve. After discussing the nature and risks of an operation, Dr. Ward urged that surgery be undertaken within six months.
In November 1971, appellant visited a second surgeon, who confirmed Dr. Ward's opinion that the lump below her ear should be removed. On the basis of the advice of these two doctors, appellant decided to undergo surgery.
On November 16th, an operating team headed by Dr. Ward performed the parotidectomy. In cutting the tissue toward the parotid gland, Dr. Ward unintentionally severed appellant's facial nerve before identifying it. After discovering the severed nerve, Dr. Ward removed the cyst (which proved to be benign), sutured the nerve ends back together, and completed the operation.
Following the operation, the left side of appellant's face was completely paralyzed. Dr. Ward apologized and told appellant that the reconnected nerve might not begin to function for some time. He suggested physical therapy after her discharge from the hospital, but indicated that there was no proof that the therapy would be of any benefit.
Between December 6, 1971, and February 14, 1972, appellant undertook physical therapy and saw Dr. Ward four times. She regained little
At the end of February, appellant began treatment with Dr. Alberto Marinacci, a neurologist and professor of neurology at the University of Southern California. Dr. Marinacci sought to help regenerate the damaged nerve by electrical stimulation. Appellant was also given injections of vitamin B-12.
The trial involved a predictable battle of experts. Appellant produced a forensic pathologist, a neurologist, two surgeons and an opthamologist who testified that an unintentional severing of the facial nerve before identifying it falls below the community standard of medical practice in performing parotidectomies. Respondents produced two specialists in head and neck surgery who, along with Dr. Ward, testified that an accidental cutting of the facial nerve is within the community standard. Dr. Ward testified that any surgeon who performs enough parotidectomies is bound to cut a nerve by mistake, and this time "my number came up."
In arguing to the jury, defense counsel emphasized that appellant's recovery was small because of her own conduct after surgery. In his initial statement to the jury, counsel stated that "[t]here should have been more improvement [in appellant's condition], however, Mrs. LeMons chose to leave the care of the doctors who were able to take care of her and ... to go elsewhere." In closing argument, he asserted that after leaving Dr. Ward, appellant sought incompetent medical assistance. It was argued that appellant could have avoided her present condition by staying with Dr. Ward, who had plans "to attempt to restore to the fullest the ability of the facial nerve to work."
As requested by respondents, the trial judge instructed the jury on a patient's contributory negligence in failing to follow proper medical
The doctrine of contributory negligence was still in effect at the time the present case was tried.
In the present case, appellant contends that former BAJI No. 6.28 should not have been given since the record contains no evidence of any negligence on her part before the cutting of her facial nerve.
The next question presented is whether or not this error was prejudicial. (See Cal. Const., art. VI, § 13.) Prejudice appears "[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction...." (Robinson v. Cable (1961) 55 Cal.2d 425, 428 [11 Cal.Rptr. 377,
In addition, defense counsel's argument to the jury increased the harmful potential of the improper instruction. Counsel strongly suggested that appellant was responsible for her lack of significant recovery because she sought "incompetent medical counsel" after abandoning Dr. Ward's treatment program, which would have restored the nerve's functioning
Even if only one of the nine jurors who supported the verdict voted on this basis, the effect was prejudicial. Here, as in Robinson v. Cable, supra, 55 Cal.2d at p. 428, "[t]he fact that only the bare number of jurors required to reach a verdict agreed upon the verdict for defendants lends further support to the probability that the erroneous instruction was the factor which tipped the scales in defendants' favor." (Accord Blau v. City of Los Angeles (1973) 32 Cal.App.3d 77, 88 [107 Cal.Rptr. 727].)
While the instruction correctly stated the law to be applied in this case, it could not cure the error created by the giving of BAJI No. 6.28. For example, the jury may have viewed the two instructions as consistent by construing them to require a verdict for appellant if Dr. Ward's negligence caused the injury, unless appellant's failure to follow medical directions also contributed to her injured condition. If the jury took this
On the other hand, if the jury regarded the two instructions as inconsistent, it cannot be assumed that the jury ignored the improper instruction and based its verdict solely on the correct one. (E.g., Krouse v. Graham, supra, 19 Cal.3d at p. 73.) "`The jury are bound (and so instructed) to accept the court's instructions as correct statements of the law.... They are likely to be confused and misled by the conflicting statements, and it is not easy to determine which charge controlled their determination.' [Citation.]" (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d at p. 673.)
More significantly, where two instructions are inconsistent, the more specific charge controls the general charge.
The cases cited by respondents in urging that the erroneous instruction was not prejudicial are inapposite. The cited cases involve challenges to isolated instructions which were not erroneous but merely incomplete, and whose omissions were corrected in the instructions as a whole. (Hurtado v. San Diego Electric Ry. Co. (1928) 204 Cal. 446, 451 [268 P. 620]; James v. Frazee (1930) 209 Cal. 456 [288 P. 784]; see Jentick v. Pacific Gas and Elec. Co. (1941) 18 Cal.2d 117, 121 [114 P.2d 343]; see also People ex rel. Dept. Pub. Wks. v. Jones (1963) 218 Cal.App.2d 747, 751-752 [32 Cal.Rptr. 344].) In the present case, BAJI No. 6.28 was not merely incomplete. It was entirely improper to give, and may have misled the jury. Since this error was prejudicial, the judgment is reversed.
Agreeing with Justice Kaus who found no prejudicial error occurred at trial, I dissent.
All BAJI instructions referred to are from the fifth edition (1969) unless otherwise noted.
"When one does not use reasonable diligence to care for his injuries, and they are aggravated as a result of such failure, the liability, if any, of another whose act or omission was a proximate cause of the original injury, must be limited to the amount of damage that would have been suffered if the injured person himself had exercised the diligence required of him.
"[From the mere fact that a competent physician advised an injured person to submit to a course of treatment or operation we are not justified in inferring that the injured person was negligent or unreasonable in declining such treatment or operation. Other factors as they confronted the injured person must be considered in determining whether, although he refused to follow the physician's advice, he nevertheless exercised reasonable diligence in caring for himself and his injuries.]"
"It is the duty of a patient to follow all reasonable and proper advice and instructions given him by his doctor regarding the patient's care, activities and treatment.
"A doctor is not liable for any injury resulting solely from the negligent failure of the patient to follow such advice and instructions.
"However, if the negligence of the doctor is a [proximate] [legal] cause of injury to the patient, the contributory negligence of the patient, if any, in not following such advice and instructions, does not bar recovery by him against the doctor but the total amount to which he would otherwise be entitled shall be reduced in proportion to the negligence attributable to the patient." (BAJI No. 6.28 (6th ed. 1977) p. 200.)
"Thus, the plaintiff is entitled to a verdict in this case if you find, in accordance with my instructions: 1. That defendant was negligent, and 2. That such negligence was a proximate cause of injury to the plaintiff."