Valdez v. Percy

SHENK, J.

The defendant has appealed from a judgment for the plaintiff in an action for damages for alleged malpractice in amputating the plaintiff’s right breast.

The action was commenced in December, 1934, against the county of Los Angeles, James F. Percy, Chief Surgeon of the County Hospital, Franklin D. Hankins, one of the resident physicians of the hospital, and various employees of the hospital. The complaint was drawn to tender issues on the theory of assault and battery, that is, that the amputation was without the plaintiff’s consent, and on the theory of negligence. The plaintiff dismissed the action as against some of the defendants. A former trial resulted in the granting of motions for nonsuit and directed verdicts, which were sustained on appeal as to all defendants except Doctors Percy and Hankins.

(Valdez

v. Percy, 35 Cal.App.2d 485 [96 P.2d 142].) As to them the judgment was reversed. Doctor Percy died before the second trial which took place about 15 years after the alleged malpractice, with Doctor Hankins as the sole defendant. This trial was before the court without a jury.

The defendant contends that the evidence is insufficient to support the findings and judgment. The record discloses the following:

Doctor Percy was a specialist in cancer surgery and treatment. The defendant Hankins had received his license to practice surgery and medicine in 1932, and as a resident physician of the hospital was assigned to assist Doctor Percy.

On January 30, 1934, the plaintiff with her husband, Dr. Valdez, consulted Dr. Percy for an examination of an enlarged lymph gland in the right axilla (armpit). She was about 38 years of age, 5 feet 5 inches in height, weighed 170 pounds, and was in good health. She was examined in the clinic by Doctors Percy and Hankins. The clinical examination revealed the enlarged lymph gland about the size of a large olive and several smaller lymph nodes in the axilla, but did not reveal any lumps or lymph nodes in the breasts which were large and pendulous. A report of the clinical examina

[340]

tion was sent to the Malignancy Board of the hospital for recommendation. On suspicion of carcinoma (cancer) of the breast the board suggested a biopsy (surgical removal and microscopical examination of a rapid, frozen section of the enlarged lymph node in the axilla), on the theory that the gland might be aberrant (wandering) breast tissue and for removal of the breast if necessary.