Dodds v. Stellar

Respondent sued for damages alleged to have resulted from injuries suffered from appellant’s negligent use of a fluoroscope in examining respondent’s hand. Following a verdict against appellant for $10,000 general damages and $4,942.05 special damages, judgment was entered for the aggregate of the two sums and for costs. On this ap

Proof of General Damage

In the latter part of October, 1941, respondent while at work for the California Shipbuilding Corporation suffered a bruise and laceration between the distal and medial phalanges of his middle, left finger about the size of a dime when a steel beam fell upon it. He reported at once to the first-aid hospital where under the direction of Doctor Waterman, an employee of appellant, he extended the injured member for ten minutes into the radiation of the X-rays applied in conjunction with a fluoroscope while the physician examined the injury. He then soaked it in a solution of epsom salts after which it was dressed with ointment and bandaged. He returned at intervals of two or three days for three weeks for the treatments while he continued at his work. Although he favored the finger it did not cause him any distress. After the sixth treatment the injury healed. About four days later it broke open, making a wound about half an inch in length. Thereafter it habitually healed in approximately a week and broke open again in four days. This continued for almost seven months, during which time respondent did not report this capricious behavior to anyone in the hospital. He returned to the emergency hospital on July 3, 1942, when a callus had formed over the wound, and an X-ray was made of the injured area. He then obtained from the hospital a piece of adhesive tape and wrapped it around the sore spot. It remained for four or five days during which he felt a burning, irritating pain which had first occurred about a month prior to the formation of the callus. On removing the tape the callus came off. He then returned to the hospital where he was referred to appellant. He discontinued work July 15. After an examination by an associate of Doctor Stellar at the latter’s office respondent was examined next on August 14, 1942, by Doctor Poster, a specialist in dermatology. At that time the doctor found “on the anterior surface of the finger”

Doctor Wright, a specialist in pathology, made a microscopic examination of the tissue taken from respondent’s ulcer. This showed such changes as characterize prolonged X-ray radiation. On December 1, 1942, he examined the amputated finger which also revealed changes caused by an X-ray burn and observed that there are no causes for such changes other than radium or X-ray radiation.

The responsibility of appellant for any injury to respondent proved to have resulted from the fluoroscopic examination on October 30, 1941, was admitted by appellant at the trial and was established by the testimony of his assistant, Doctor Waterman.

Respondent’s testimony that his finger was held under the influence of X-rays while being examined through a fluoroscope October 30, 1941; his immediate suffering with intense pain until December, 1942; the excision of the ulcer; the amputation of the finger; the pus-draining operation; the pain in his arm; confinement to the hospital; loss of power in his hand; his worry and anxiety—all warrant the finding that the sole and efficient cause of his injuries was the negligence of the physician who exposed his hand to the radiation, and that his general damage was reasonably the sum of $10,000.

Appellant complains that the diagnoses of Doctors Meland and Shelton were based upon false conditions. He asserts that the callus did not exfoliate and the ulcer appear in May but in August, 1942, as was proved at the trial; that respondent testified that he continued working and did not quit work as he had told Doctor Meland. The jury may have found that Dodds’ memory was confused for he told Doctor Shelton that he “went back to work but the same (the wound) continued to be painful.”

The jury had the benefit of all discrepancies between respondent’s testimony and his prior statements to the physicians. It is not material now that no witness testified to the number of Roentgen units to which the hand was exposed. It suffered a burn as a result of the October exposure, a trophic ulcer formed and respondent suffered. These are the facts which are established by the testimony. That the ulcer might have been caused by respondent’s continuing to labor between November 1,1941, and July 15, 1942, with his hand in a glove was a possibility rejected by the jury and by the trial court in denying a new trial. They chose to find that while the injured hand was exposed to an X-ray tube, with the machine running, the hand was burned; and four experts testified that in view of the history given the wound was caused by either radium or X-ray radiation. This is more than a scintilla of evidence. It is substantial proof.

Appellant invokes the rule that "a party is bound by the recitals of documentary evidence introduced by him. (Davenport v. Stratton, 24 Cal.2d 232 , 240 [ 149 P.2d 4 ]; 20 Am.Jur. 771, § 915.) He then proceeds to demonstrate that certain statements in the work “X-Rays and Radium in the Treatment of the Skin,” by McKee, introduced in evidence by respondent, are inconsistent with the diagnoses of the witnesses. The elaborate argument to illustrate the hopelessness of respondent’s position by showing the inconsistencies between McKee’s discussion of the symptoms of a third degree X-ray burn and the medical testimony is interesting but not convincing. It was the privilege if not the duty of respondent’s counsel to offer in evidence the entire McKee volume at the time of reading any part of it. Conceding, arguendo, that it contains language contradictory of the expert witnesses, it is a rule governing appeals that where there is a conflict between the witnesses presented by a party or any inconsistency between his living witnesses and his documents, or be

Appellant contends that it is impossible for the trophic ulcer to have been caused by the fluoroscope incident because the period of time between the exposure October 30, 1941, and the appearance of the ulcer in July of 1942 is too great. This contention is based upon McKee’s opinion that the symptoms of a third-degree X-ray burn are as follows: “The patient usually feels a great deal of heat, feels quite hot within the next two or three days, sometimes the first night afterwards, and then redness of the skin is noted and the condition becomes worse. Finally the skin begins to peel off on the surface and the glands are destroyed; that is, they atrophy and the hair disappears and the skin becomes thin and eventually ulcerates.” Nothing contained in the foregoing quotation is inconsistent with the development of respondent’s trophic ulcer or with the language of the experts who testified that the symptoms indicate an X-ray burn. But if there were a contradiction the jury were privileged to ignore McKee and to base their finding upon the testimony of .respondent as to the date of his exposure and his subsequent experience and upon the uniform opinions of the experts that the tissue of the ulcer was the result of an X-ray burn or was consistent with such a burn.

Respondent’s Injury the Sole Proximate Result of the X-Ray Burn

Respondent was first examined by Doctor Foster on August 14, 1942, and by Doctor Meland 17 days later. At the first visit Doctor Meland “discussed the advisability of an amputation of the finger . . . and told Mr. Dodds . . . that if the ulcer remained in the same condition the probable treatment would be amputation . . . that in my opinion . . . these palliative measures . . . would do absolutely no good excepting to relieve pain . . . that best treatment and the most certain way, and practically the only certain way of getting rid of pain . . . was to amputate the finger at once. . . . When I told him that he should submit to an amputation he told me, in substance, that he would rather let the thing go, and take a chance on whether there might be some improvement in the ulcer ... at the time I first saw him I recommended the amputation of the entire finger to be sure that enough was

The jury were evidently influenced by the following facts: (1) The physicians agreed about September 1, 1942, to use drugs that they might destroy the infection and remove the foul tissue. After two weeks of medicaments they advised excision of the ulcer. (2) They performed that operation September 14. They were encouraged then to believe that because of the free bleeding a grafting of new skin over the scar might be accomplished. (3) At no time during September, October or November, 1942, did either Doctor Shelton or Doctor Meland decline to treat respondent unless he would have the finger amputated. (4) At the first suggestion of amputation, September 1, 1942, no serious attempt had been made to treat the wound with drugs, which is the universal custom of dealing with chronic sores. (5) It was not an unreasonable preference to choose to keep the injured organ and in acceding to his wishes for two weeks the physicians gave their approval. (6) In hesitating to permit the incision on January 7, 1943, the jury were influenced by the facts that respondent had suffered one excision September 14, one amputation December 1, and one incision December 17, 1942. It was not unreasonable for respondent to entertain fears on January 7,1943, that perhaps the removal of the pocket of pus by scraping his wound might not be the wise course to follow after the use of drugs and submitting to three operations. (7) His fears on January 7 were justified by the stubborn course of the wound following the incision on March 26, 1943. (8) At the time he was advised to submit to a second incision (January 7, 1943) he had no temperature.

While it is true that Doctor Shelton testified that he believed that by having amputation October 7, 1942, the period of respondent’s hospitalization would have been materially abbreviated, yet in weighing the question of respondent’s refusal to have the operation the jury had the exclusive right to

If the circumstances were such as to warrant the jury in finding that respondent exercised reasonable diligence in caring for his injury and used reasonable means to prevent its aggravation and to effect a complete cure, he was not obligated to undergo the amputation promptly when advised by his physician to do so solely because it might, by accomplishing a speedy healing of his wound, minimize the loss to be suffered by him whose negligence had caused the injury at first. (Boa v. San Francisco-Oakland Terminal Railways, 182 Cal. 93 , 101 [ 187 P. 2 ].) Where the benefits to be gained by the refusal of a person who has been injured through the negligence of another to undergo a serious operation are doubtful, such refusal may be found not unreasonable even though such operation be advised by a competent physician. A plaintiff cannot be compelled to submit to an operation which would necessarily require the loss of a hand or a finger. This is especially true where the benefit to be derived from the operation is problematical and where therapeutic drugs have not already been tried. (See Karherg v. Southern Pacific Co., 10 Cal.App.2d 234 , 252 [ 52 P.2d 285 ] ; Burns Case, 298 Mass. 78 [ 9 N.E.2d 719 , 720].)

Appellant cites Stahura v. Industrial Commission, 103 Colo. 451 [ 86 P.2d 1080 ], and Overton v. City and County of Denver, 106 Colo. 114 [ 102 P.2d 474 ], both by the Supreme Court of Colorado on reviewing and affirming findings of the Industrial Commission. The effect of the holding in each case was a determination by the commission that the refusal to submit to the advised operation under the circumstances was negligence and that the applicant should be denied compensation for the time lost by his refusal to allow the operation. In Western Shade Cloth Co. v. Industrial Commission, 308 Ill. 554 [ 140 N.E. 45 , 46], the Illinois court held that from the “character of the evidence” the advice of the doctors should have been followed, and that if the applicant had accepted their advice and taken the treatments the injury would not have been as serious as it turned out to be.

In Southern California Edison Co. v. Industrial Acc. Com., 75 Cal.App. 709 [ 243 P. 455 ], the company had offered to pro

Basing his contention upon the hypothesis that respondent’s refusal to submit to an amputation of his finger on September 1, 1942, resulted in the extension of his pain and suffering, his confinement to the hospital and absence from his work as well as in the enlargement of the hospital and medical charges, appellant contends that all losses suffered after November 1, 1942, should have been disallowed and that the judgment should be reversed by reason thereof. By reason of the evidence as above outlined and of the absence of any direct proof that respondent’s expressed desire to defer the amputation was the cause of his losses after November 1, 1942, it cannot be said that the jury failed to exercise a reasonable discretion in impliedly finding that he justifiably deferred the amputation of his finger on September 1, 1942, and the incision on January 7, 1943.

No Excessive Damages

It cannot be said as a matter of law that the damages awarded were excessive in view of the pain and losses suffered and of the currently deflated value of the dollar. (Butler v. Allen, 73 Cal.App.2d 866 , 870 [ 167 P.2d 488 ].) The power of the appellate court over excessive damages is invoked only when the facts are such that the excess appears as a matter of law or is such as to suggest, at first blush, passion, prejudice or corruption. (Wiezorek v. Ferris, 176 Cal. 353 , 358 [ 167 P. 234 ].) When a trial court has refused to set aside a verdict on the ground that it is excessive it is the established rule that the verdict must stand unless it greatly exceeds a reasonable sum that might be fixed by enlightened men of sober judgment as reasonable compensation for the injuries suffered by the plaintiff in his situation at the time of and after the injury. If a verdict approved by the trial court does not shock the sense of justice and immediately induce a belief that the award was prompted by prejudice, passion or corruption, then the appellate court should not disturb the judgment.

No Prejudice in Giving or Refusing Instructions

Many instructions given by the court are criticized as prejudicial without supplying references to the transcript. In fact the page on which a criticized instruction is found is specified in one instance only and that instruction is as follows:

‘ ‘ The issue to be determined in this case is whether or not the plaintiff sustained an X-ray burn on or about October 30, 1941, at the First Aid hospital on the premises of the California Shipbuilding Corporation. The burden is upon the plaintiff to prove by a preponderance of the evidence that he sustained an X-ray burn at the place and at or about the time stated. If you find that he did not sustain such a burn at or about said time and place, then the plaintiff is not entitled to recover. If you find that the plaintiff did sustain an X-ray burn at that time and place, you will find what damages plaintiff has suffered as a proximate result thereof and return a verdict in his favor for the amount of such damage. As indicated in this instruction, you should determine the question of liability before you undertake to fix any amount that would compensate for the damage if any as found to be suffered. Whenever in these instructions, I state that the burden or the burden of proof rests upon a certain party to prove a certain allegation by him, the meaning of such an instruction is that unless the truth of that allegation is proved by a preponderance of the evidence, you shall find the same to be not true.”

Of the foregoing appellant says that “the stipulation that if respondent sustained an X-ray burn on or about October 30, 1941, the individual causing the burn was unskillful or negligent and was a servant of defendant Stellar . . . merely relieved plaintiff of the burden of proving . . . that the individual responsible therefor was a servant of the defendant Stellar. The trial judge erroneously assumed that the stipulation relieved the plaintiff of his burden to prove that he sustained an X-ray burn of the kind and nature alleged. . . .” Also, he says the instruction ignored the proposition that plaintiff was under the burden of proving by a preponderance of evidence that his pain, trophic ulcer and the loss of his

Appellant asserts that the quoted instruction overlooks his defense of contributory negligence arising from respondent’s neglecting to quit work and have his hand treated. But the court instructed the jury that in deciding whether there was negligence in a given case “the conduct must be considered in the light of all the surrounding circumstances as shown by the evidence”; that “the proximate cause of an injury is the cause which . . . produces the injury . . .”; that there may be two efficient causes; “whether proximate cause has been proved by a preponderance of the evidence, you should consider all the evidence . . . ; any general damage or any item of special damage which the preponderance of evidence shows was a proximate result of any negligence on the part of the plaintiff cannot be included in any verdict you might render in favor of the plaintiff.” The merits of one instruction cannot be fairly appraised by lifting it for analysis from the court’s entire charge.

Deferring to another instruction appellant complains that the court unduly minimized the vice of failure of recollection of a witness. The instruction upon the measure of credibility and discrepancies in a witness’ testimony does not vitally differ from the customary instruction upon that subject. While “failure of recollection is a common experience and innocent misrecollection is not uncommon” might be regarded as a gratuitous observation, it is nevertheless a truism and is harmless. No authority is known that denounces such a comment as prejudicial.

While the customary form of telling the jury that they are “the exclusive judges of all questions of fact” was not used, still no prejudice can result from a slight variation in the language of the admonition. The court below told the

Assignment is made of the instruction to view with distrust weaker evidence offered by a party if the jury should find it was within the power of a party to produce stronger evidence, which appellant says was given at the request of respondent. No reference is made to any part of the record to show that respondent suggested it. Since it is not shown to have been requested by respondent it must be presumed to have been suggested by appellant, (Cleveland v. Petrusich, 117 Gal.App. 71, 82 [ 3 P.2d 384 ]; 24 Cal.Jur. § 118, p. 871, note 10; 2 Cal.Jur. § 509, p. 870, note 5) and therefore cannot constitute cause for reversal. In any event, the criticized instruction did not authorize the jury to reject anything. Taken as a whole it directed the jury to consider all the evidence before determining whether respondent received a third degree burn and whether the trophic ulcer was caused by the burn or by a trauma while respondent worked at the shipyards.

Appellant contends with fervor that the same instruction permitted the jury to reject the testimony of Doctor Me-land that an amputation on August 31, 1942, was imperative as the only available cure, and the opinion of Doctor Shelton that respondent’s refusal of an amputation on October 9,1942, was contributory negligence. Nothing is noted either in the court’s language or in the testimony to justify such an attack. Not only does the testimony of both physicians substantially

Appellant’s extended defense of the testimony of the two physicians as being “entitled to full credit” is grave support for the jury’s implied finding that the ulcer was caused by an X-ray burn.

Assignment is made of the following instruction as prejudicial:

“If under the instructions you should find that the plaintiff is entitled to a verdict, in arriving at the amount of the award you shall determine each of the items of claimed detriment which I am about to mention, provided, that you find it to' have been suffered by him as a proximate result of the sustaining by plaintiff of an X-ray burn at the first-aid hospital on the premises of California Shipbuilding Corporation on or about October 30, 1941. . . .”

It is urged that the jurors were not cautioned in this or succeeding instructions that they could not include the entire cost of the services of physicians, and the entire value of time lost, in the total sum which would compensate for disfigurement, pain, discomfort and anxiety past and present. Such caution was unnecessary. The court’s charge defined the two kinds of damages and specified the items constituting each.

Appellant requested the court to read 16 instructions of his own invention and 26 from Baji (California Jury In

Without further discussion of appellant’s specious criticisms of the instructions and of the rejection of those offered it is sufficient to say that upon an examination of the entire ■ cause including the evidence this conrt is persuaded that no instruction given or refused resulted in a miscarriage of justice and that therefore the judgment cannot be reversed. (Const., art. VI, §41/2.)

Judgment affirmed.

McComb, J., and Wilson, J., concurred.

A petition for a rehearing was denied January 21, 1947.