Eble v. Peluso

McCOMB, J.

Prom a judgment in favor of defendants predicated upon the granting of their motion for a nonsuit in an action to recover damages for malpractice, plaintiff appeals.

So far as material here these are the essential facts:

[155]

On September 16, 1941, plaintiff while working as a linoleum layer tripped and fell fracturing the ring finger on his left hand. He was taken to a doctor who placed the injured member in a splint where it remained for two or three weeks. Five or six days thereafter the same doctor put a cast on the hand. The splint was retained on the injured finger but the noninjured fingers were left free.

About October 3, 1941, defendant doctor sent plaintiff to another doctor who X-rayed his hand and then referred Mm to Doctor Peluso. Said defendant treated the injured finger without obtaining satisfactory results until January 7, 1942, at which time it was amputated. The other fingers remained stiff and on June 5, 1942, the little finger on the left hand was removed.

Thereafter the present action was instituted and at the time of the trial plaintiff endeavored to qualify Dr. Frank R. Webb as an expert witness on the treatment of fractured fingers in Los Angeles County. Evidence was introduced tending to prove that he had graduated from the College of Physicians of Columbia University, New York City, in 1902, and had been in the practice of medicine continually thereafter; that he had quite a little experience in bone trauma as an interne in New York City, in the government hospital at Washington, D. C., and in general practice; that in 1912, he took a position with the Pacific Great Eastern Railway on a construction line caring for more than two thousand men who were doing blasting and mountain excavation, and that in many of these cases there were injuries of the bone and joints; that in 1921, he was licensed to practice medicine in the State of California; that he was the chief autopsy surgeon for the coroner’s department in Los Angeles County; that he had made many autopsies on persons showing bone disease and defective conditions of the bone in which he endeavored to and did obtain the history and course of treatment of such conditions, and that he familiarized himself with the surgical and medical procedure in such cases.

He was then asked further questions hereinafter set forth to which the trial court sustained objections and held that the doctor had not been qualified as an expert witness, and that in the absence of any testimony showing that defendant Dr. Peluso had not treated plaintiff with the degree of care and skill ordinarily exercised by practitioners in Los Angeles there was no showing of negligence and the defendants’ motion for a nonsuit should be granted.