Hearing Granted by Supreme Court Jan. 4, 1937.
Appeal from Superior Court, Los Angeles County; Walter S. Gates, Judge.
Action by Anne Teresa McGuire against Dr. Marion W. Baird. From a judgment of nonsuit, plaintiff appeals.
Henry G. Bodkin, of Los Angeles, for appellant.
W. I. Gilbert, of Los Angeles, for respondent.
BISHOP, Justice pro tem.
In this malpractice action, where a judgment of nonsuit was rendered, we have concluded that an error prejudicial to plaintiff-appellant was committed, when the trial court approved of the position insisted upon by defense counsel and ruled that a long, hypothetical question propounded to a doctor be answered yes or no, without explanation.
The question put to the witness consisted first of a recital of the history of plaintiff’s ailment, and defendant’s diagnosis of it and treatment for it. To appreciate the length of the statement, it should be noted that the framing of the question began before the morning recess, continued over until the noon recess, and was then completed in the afternoon. The witness was told of the plaintiff’s first visit to the defendant about the middle of December, 1932, with a thumb throbbing painfully, but bearing no visible signs of trouble. The doctor, the statement continued, diagnosed the trouble as a felon and prescribed hot epsom salt baths for the thumb. There followed a narration of events up to March 14, 1933: The thumb getting worse, danger signals appearing up the forearm, the treatment becoming more severe, lancings and probings and drains. No X-ray was taken until just before March 14. Of the events from March 14 on, the witness did not need to be told, as it was to him plaintiff came for relief. He declined to take any action without an X-ray. One was procured, revealing that plaintiff was suffering from osteomyelitis, inflammation of the marrow of a bone, and the witness amputated plaintiff’s thumb.
These events beginning with March 14, not forming a part of the hypothetical question, were brought out after the recital of the history of the case before it reached the witness’ hands. Then the second part of the hypothetical question took this form: "Assuming, Doctor, all the facts recited in this hypothetical question to be true, would you say that the doctor who had charge of the patient and who treated the patient as we have hereinbefore stated, from the 9th day of December, 1932, until on or about March 16, 1933, used that degree (of) skill, care and learning ordinarily possessed and exercised by physicians and surgeons practicing * * * in the vicinity of Torrance, Redondo and thereabouts?" After some sparring, during which it developed that the witness had an opinion on the subject involved, this question was asked him: "And, in your opinion, did that physician use that degree of skill, care and learning ordinarily possessed and exercised by physicians and surgeons practicing in this vicinity?" Now we quote from the record:
"Defendant’s Counsel: Will your Honor direct that must be answered yes or no?
"The Court: By yes or no, Doctor. Do you understand the question? You want the reporter to read it again?
A. I believe I understand it.
"The Court: Very well. You may answer the question. Do you want to have the question read again?
A. I would like to have it read again.
"The Court: All right; read the question, Mr. Reporter. (Last question read by the reporter.)
"Q. (by plaintiff’s counsel). In that particular vicinity. You can answer that and then explain. Answer yes or no and then you may explain.
"Defendant’s Counsel: If your Honor please, the question must be answered yes, he did, or no, he did not.
"The Court: Yes, that is what I understand, Mr. Bodkin.
"Defendant’s Counsel: He has no right to explain his answer to a hypothetical question. His whole hypothesis is there and he must answer yes or no.
"The Court: Yes, it is on that hypothesis.
"Plaintiff’s Counsel: And the entire treatment I am referring to.
"The Court: All right; you must answer yes or no.
"A. I would say that he did.
"Q. (by plaintiff’s counsel). You would say that he did use that?
A. Yes, to the best of his ability.
"Q. Now, Doctor, I am not talking about the best of his ability; I am saying, did he use that skill, care and learning ordinarily possessed and exercised by physicians practicing in that particular vicinity?
A. Well, I do not know anything about how the physicians in that vicinity would treat cases. I have not had any experience with them in osteomyelitis.
"Q. I am talking about Torrance. Have you not had experience down there? I understood you did.
A. I have had association through cases, but not any experience with doctors in Torrance with osteomyelitis.
"Q. I am talking about Torrance and Redondo?
A. Well, I don’t know how the other fellows treat it.
"Q. Now, Doctor, assuming the facts stated in this hypothetical question, I will ask you if a physician, using that degree of skill, care and learning ordinarily possessed and exercised by physicians and surgeons practicing in that vicinity, of Torrance and Redondo, would not have taken an X-ray?
"Defendant’s Counsel: Now, I object to that, if your Honor please, because, in the first place, it is not a proper hypothetical question. I can’t take the question apart, sentence by sentence; but, in the first place, the doctor testified he did not know what the general run of physicians do down there.
"The Court: Sustained.
"Plaintiff’s Counsel: May we take a recess at this time, if your Honor please?
"The Court: Yes, take a recess. Ladies and gentlemen, bear in mind the admonition heretofore given.
"(Whereupon a recess was taken and proceedings were resumed in chambers as follows, out of the hearing and presence of the jury.)
"The Court: Let the record show we are in the court’s chambers, the court and counsel and the doctor present, together with the reporter, in the absence of the jury.
"(Examination continued out of the hearing and presence of the jury as follows:)
"Q. (by plaintiff’s counsel). Doctor, you were just asked a hypothetical question by me, in which I asked you to assume certain facts to be true, and I asked you, if, in your opinion, the ordinary, careful physician--I don’t remember the exact words--but the ordinary, careful physician, with the ordinary skill and learning, would have used that treatment and done as that physician did. Your answer was ‘yes.’ Now, did you mean by that to say that the treatment, that all of the treatment was correct, or that the treatment as a whole was such that the ordinary physician would have given?
"Defendant’s Counsel: I object to that, if your Honor please, as cross-examination of his own witness.
"The Court: That is what it amounts to.
"Defendant’s Counsel: This doctor was given the entire treatment of this patient from the beginning to the time the defendant doctor closed his connection with the case. He was then asked the question, assuming all the facts in the hypothesis to be true, whether or not the physician and surgeon under consideration exercised that degree of skill, care and learning that an ordinary physician practicing in that community would have used under the same or similar circumstances, and he said, ‘Yes.’ Now, that is the only hypothesis that can be put to any expert in a case of this kind; we have to have all the facts; they have been stated to him. You can’t begin at the middle of the treatment and say, did he do so and so, or should he have done so and so.
"The Court: I think that is true.
"Plaintiff’s Counsel: I think that is true, but when I am taken by surprise by the statement of the physician I think I have a right to do it, and I stated I was taken by surprise.
"Defendant’s Counsel: As I stated, I have the most profound respect for the doctor, from his face and appearance; and I don’t know what surprise you had, because I asked the doctor, after he listened to the statement of the treatment on the stand, if he criticized that statement, and he said no.
"Q. (by plaintiff’s counsel). Is that true, Doctor?
A. Part of the treatment, yes.
"Q. Did you tell Mr. Gilbert, after listening to all this testimony, that you found nothing to criticize?
A. May I speak?
"The Court: Yes, but it is not a matter of criticism.
A. I was informed that I had to answer yes or no
"The Court: That is right.
"The Witness: --whether this treatment was correct or whether it was wrong. I didn’t know that that meant all of the treatment; I didn’t know that that was the whole treatment, all the way through the case.
"Q. (by defendant’s counsel). But the question is, I asked you about the whole treatment and you told me the treatment, taken as a whole, would be correct, didn’t you? A. Well, Mr. Gilbert, I understood you to mean
"Q. I am talking about the treatment as a whole; there might be parts of it you disagree with; all you answer is the statement as a whole, whether or not from the time he started until he got through it met with that degree of ordinary care, skill and learning as ordinarily possessed and exercised by physicians and surgeons in that vicinity.
"Plaintiff’s Counsel: Did you tell Mr. Gilbert, as a whole, it was proper?
A. If I did, I didn’t understand it meant all the treatment.
"Q. (by the Court). Well, did you tell Mr. Gilbert that?
A. If he says I did, I did.
"Defendant’s Counsel: Well, Doctor, let me clear your mind. I stood on that treatment, and I said, ‘Doctor, you have heard this whole statement, now, was there anything criticizable about it’ I said ‘That means taken from one end to the other,’ and you said, ‘No, not that I can see.’ That was standing right there at the railing. I had a right to talk to you the same as Mr. Bodkin.
"Plaintiff’s Counsel: Well, I didn’t think that you would talk to my witness.
"Defendant’s Counsel: I didn’t know you owned him.
"Plaintiff’s Counsel: I have him under subpoena.
"The Court: That is correct, what Mr. Gilbert has said?
"The Witness: That is correct.
"Q. (by plaintiff’s counsel). Doctor, do you desire to correct that statement you made on the stand in which you stated the entire treatment was correct?
"Defendant’s Counsel: That is not the proper question and not proper examination.
"The Court: No. If you object to it
"Defendant’s Counsel: Objected to on that ground. The only hypothesis that can be presented to this or any other expert witness in the case is to give him the whole picture.
"The Court: Yes, that is correct.
"Defendant’s Counsel: He says, viewed from the whole picture, the doctor did, in his judgment, the right thing.
"Plaintiff’s Counsel: I know, but, Doctor, you stated here that you misunderstood the question to the extent that you believed you were called upon to say, if you said ‘No,’ that you were saying that the entire treatment was wrong, is that right? Is that what you understood when you were asked that question, if you said ‘No’?
A. Yes, if I said no I thought that meant none of his treatment was correct.
"Q. And do you desire to change that answer? "Defendant’s Counsel: I object to that.
"The Court: We are getting back to the proposition of separating the question and dividing it into parts.
"Defendant’s Counsel: Doctor, you heard this whole picture, did you?
A. Yes, sir.
"Q. And you have got to assume, so far as my question is concerned, that it is all true, from the time she came in on December 12th until she went out on March 14th. Now, taking this treatment as a whole, just considering it all together, as shown by the hypothesis, I said, that the man exercised ordinary care; I asked you if you understood that question, and you said, ‘Yes,’ is that right, and that is the question you answered, isn’t it?
A. Yes, sir.
"Q. And you certainly intended to give that answer on the stand, didn’t you?
A. To the best of his ability he exercised it.
"The Court: Well, in your opinion and judgment?
"Plaintiff’s Counsel: Not this particular physician, but as to the ordinary physician practicing in that vicinity, did he exercise that degree of care and skill exercised and used by physicians practicing there?
"Defendant’s Counsel: Taken as a whole.
"Q. (by plaintiff’s counsel). Taking this treatment together; you can’t isolate one part of it?
A. I should say that physicians practicing in my community, after a period of time elapsed and the thumb was not improved, showed no improvement, that the ordinary physician in my community would perhaps have called in consultation or had an X-ray taken.
"Defendant’s Counsel: That does not answer the question.
"The Court: No.
"Q. (by plaintiff’s counsel). In other words, you mean by that last answer that the ordinary, careful physician, careful and capable physician, practicing in that community would have done something in addition to what was done by this physician?
"Defendant’s Counsel: I object to that as cross-examination of his own witness.
"The Court: Sustained. You understand, Doctor, taking the whole picture, the things set forth in the hypothetical question, assuming all those facts to be true as given, then can answer upon that theory.
"Defendant’s Counsel: But he has answered.
"Plaintiff’s Counsel: No, he said it was not.
"The Court: He said it was.
"Defendant’s Counsel: No, he said it was.
"Plaintiff’s Counsel: Was that the last answer?
"The Court: He said he would have taken some X-rays.
"Defendant’s Counsel: He has got to take the treatment as a whole or not at all.
"Plaintiff’s Counsel: Part of it may have been right or wrong.
"The Court: Taking it all, as a whole, the entire treatment.
"Plaintiff’s Counsel: All I want to know is this: Just taking the treatment--in other words, as I understand the question, it is this: If everything in the treatment was not correct
"Defendant’s Counsel: I object to that. That is not the question. The question is, whether the whole picture represents what a man of ordinary care and skill practicing in the same community would do.
"The Court: That is right.
"Defendant’s Counsel: And the doctor says it does.
"The Court: Sustained. You may reframe the question.
"Q. (by plaintiff’s counsel). Now, Doctor, you have heard the hypothetical question I asked you out there in the court room; you remember the question I asked you-- A. Yes.
"Q. --respecting the history of the case?
"Q. Now, assuming all those things to be true, in your opinion, would the ordinary, careful physician, with ordinary capability and training and learning, have done the things--that is, would he have done as that physician did do in that case?
"Defendant’s Counsel: I object to that, if your Honor please, as not the proper question.
"The Court: Sustained.
"Plaintiff’s Counsel: Just one moment, if your Honor please; I want to use the language of the cases.
"The Court: Whether a person would have done it differently is not the test.
"Defendant’s Counsel: No, the question is, was what he did consistent with the exercise of ordinary care-- "The Court: By reputable physicians in that community.
"Defendant’s Counsel: --by reputable physicians in that community, yes, and the witness has already said it was.
"Plaintiff’s Counsel: And he has attempted to say that he misunderstood the question.
"Q. I will ask you this, Doctor: Assuming the facts recited in this hypothetical question, the one which I read to you in the court room, to be true, would you say that the doctor who had charge of the patient, who treated the patient, as we have hereinbefore stated, from the early part of December, 1932, until the time he was discharged, on or about March 13, 1932, used that degree of skill, care and learning ordinarily possessed and exercised by physicians and surgeons practicing in Torrance or Redondo or that vicinity?
"Defendant’s Counsel: I object to that question as having been asked and answered.
"The Court: That is identically the same question.
"Plaintiff’s Counsel: I understand it, and it is quite apparent here that he was mistaken.
"The Court: Overruled. You may answer, Doctor. You want the reporter to read that again?
"The Witness: The question just now asked me?
"The Court: Yes.
"A. I would have to answer that yes, that he did use the proper care. Now, if you won’t let me tell
"Plaintiff’s Counsel: That is all there is to it.
"The Witness: Well, I can’t say no.
"The Court: Well, that is all there is to it."
As we reread the record there remains with us but one conclusion: Plaintiff’s sole medical witness answered the hypothetical question in the belief that he had to answer it with an unqualified "yes" or "no"; that he understood that the first was an approval of all that his fellow doctor had done, an approval he could not honestly give, but the second was a condemnation of his whole conduct, a position he was even more reluctant to take. He solved the dilemma in which the court’s ruling and his understanding placed him by answering in the affirmative.
Respondent gives us no authority in support of the proposition that the question had to be answered categorically. Indeed, he states in his brief that: "The witness was not precluded from explaining his answer (if an explanation was necessary) after answering the question ‘yes’ or ‘no."’ The record shows, of course, rulings consistently to the contrary. We not only agree with the declaration in Webber v. Auto Park Transp. Co. (1926) 138 Wash. 325, 244 P. 718, 719, 47 A.L.R. 590, that "a witness is ordinarily permitted to explain his answers where the question calls for an answer either ‘Yes’ or ‘No,"’ but are of the opinion that under the circumstances of the case at bar especial reason existed for permitting him to do so.
Respondent argues that no prejudice flows from any error there may have been in the rulings respecting the doctor’s testimony because he had effectively disqualified himself by the series of statements, quoted above, concluded with, "Well, I don’t know how the other fellows treat it." Whatever effect his statements may have made on the weight to be given his testimony, they did not destroy him as an expert witness. That is to say, we hold that one who, himself a qualified physician and surgeon with experience in diagnosing and treating a particular ailment, has lived for 13 years in a community, knowing and practicing with the other physicians and surgeons in the community, may be qualified to give testimony as an expert respecting that degree of skill, care, and learning ordinarily possessed by physicians and surgeons practicing in the community, with regard to that ailment, although he may not have known of the ailment having been treated before in the community. If a doctor, otherwise qualified, cannot measure another doctor’s diagnosis and treatment of a particular case by the standard of the community, because he does not know of an actual case having established that standard, it follows necessarily that no standard of skill or care would be available upon the first appearance of an ailment in a community, nor would there be any standard in a new community. Does a doctor, who has passed the rigid tests required before he may practice in our state, hold himself out to exercise no degree of skill in diagnosing or treating a case of gout because neither he nor any of his fellow doctors in the locality has ever had an actual case before? The limitation upon the liability of doctors, that they shall be held only to that degree of care and skill which is the standard in the community, is not to be extended to relieve them of the duty of exercising any care and skill in a new situation. They have been trained for new situations, and by their training and general experience have some standard to which they can be held.
We find no support in the authorities for respondent’s theory, unless Rasmussen v. Shickle (1935) 4 Cal.App.(2d) 426, 41 P.2d 184, be so interpreted. In Hutter v. Hommel (1931) 213 Cal. 677, 3 P.2d 554, 556, the court answered the objection that a witness trained as a homeopathic physician and surgeon was not shown to be qualified to testify as to the degree of care and skill required of the defendant, of the allopathic school, by pointing out that he had stated that he was "familiar with the general treatment under allopathic and any other school of surgical cases" and had had personal experience with the surgical problem under consideration. The precise objection made to us was not discussed, but what we believe to be the correct test was applied.
Nor is this a situation where we can say that the error is not shown to be prejudicial because it does not affirmatively appear that, if the doctor had been permitted to expand his answer, it would have been helpful to plaintiff. It is quite apparent to us that plaintiff’s counsel expected the witness to testify and that probably he would have testified that, had the defendant exercised that degree of care and skill usual in the community, he would have discovered long before March 14, that it was not a felon causing plaintiff her distress, but some other condition, and that he would have turned to the X-ray to see if it would not reveal the real trouble. It is apparent that the witness had an opinion that common care dictated that an X-ray should have been taken. Had he been permitted to so testify, a foundation for further questions respecting the results of taking the X-ray would have been laid. The present lack of answers to those further questions may not be pointed to as proof that the error was harmless.
For the reasons given, the judgment of nonsuit is reversed.
We concur: HOUSER, P. J.; DORAN, J.