Warnock v. Kraft

McCOMB, J.

This is an appeal from a judgment in favor of defendant predicated upon the granting of defendant’s motion for a nonsuit in an action to recover damages for malpractice.

So far as material the essential facts are:

June 22, 1936, plaintiff received personal injuries while riding on a drag attached to a tractor. He was unconscious for several days and among other injuries suffered a dislocation of one of his toes. Defendant, a physician and surgeon practicing in the city of Pasadena, who treated him, failed to have an X-ray taken of plaintiff’s foot, although plaintiff frequently complained of pains in it, with the result that such injury was not discovered until several months after the accident occurred.

At the time of the trial, after Dr. Gordon Havstad was qualified as an expert physician and surgeon familiar with the ordinary and usual practice of physicians and surgeons in the city of Los Angeles, he was asked by plaintiff’s counsel a hypothetical question framed to show that plaintiff had not been treated by defendant with the knowledge and skill ordinarily possessed by physicians and surgeons in the city of Pasadena.

This is the sole question to be determined:

[3]

Is a physician and surgeon who is qualified to testify as to the degree of care and skill possessed by the average practitioner in metropolitan Los Angeles also qualified to give an expert opinion upon a question of medical practice pertaining to the act of a physician and surgeon whose practice is confined to the city of Pasadenat

This question must be answered in the affirmative. The law is established in California that in a malpractice case to qualify a physician as an expert it must be shown that the witness possesses learning and knowledge of the subject under inquiry sufficient to qualify him to speak with authority on the subject, and also a familiarity with the treatment and degree of care and skill of other practitioners in the locality in question sufficient to qualify him to testify whether or not the treatment furnished the plaintiff was consistent with what other physicians in the same community in the exercise of reasonable care would do under similar circumstances.

(Rasmussen