Opinion
McCOMB, J. Plaintiff appeals from a judgment in favor of defendant in a medical malpractice action.
Facts: Plaintiff, a 67-year old woman in generally good health, consulted a doctor because of a pain in her left leg. X-rays revealed a tumor on her left femur, and the radiologist diagnosed probable osteogenic sarcoma. A biopsy was scheduled. During the surgery, performed by defendant February 7, 1963, a portion of the bone was removed. Subsequent tests' revealed that the tumor was not malignant, but that fact was not known at the time of the surgery.
There is a conflict in the evidence as to how much of the bone defendaht removed. He testified that he removed “approximately one-fourth of the circumference of the bone and in length approximately two inches.” According to plaintiff’s testimony, defendant told her after the operation that a third of the bone had been removed. Plaintiff’s medical expert gave an opinion that, based on his examination of X-rays and pathology reports, 50 percent to 57 percent of the circumference of the bone was removed, and he testified that the removal of more than 3Ska percent without providing internal or external support was not the exercise of proper care by a surgeon performing a bone tumor removal from the femur.
[323]No internal fixation device was implanted in the bone to strengthen the weakened femur. Defendant testified that he decided against the use of such a device, because if malignancy existed, implanting such a device would tend to spread the malignant cells. He further testified that he decided against the use of a cast because of the danger of certain complications (mainly pneumonia, pulmonary embolism from blood clots, kidney stones, general muscular atrophy, and general loss of calcium throughout the entire skeletal structure, since the cast would have extended from the patient’s breast to, and encasing, the feet). Defendant’s experts testified that the use of some type of fixation device or a cast or a type of bed rest was required when 33Vá percent or more of the bone was removed. Defendant himself testified that a cast was definitely required where 3 3 VS percent of the bone was removed, whether there was malignancy or not.
While still in the hospital, plaintiff was furnished with crutches, and before leaving was instructed by defendant to use them at all times and to “be careful and not [rzc] put only a little weight on the leg.” Plaintiff was aware that the bone had been weakened by the operation and that she would have to be careful. Defendant testified, in part, that he had “told her that she was to use crutches at all times, with minimal weight bearing, bearing the weight of her extremity only, just the weight of touching it down on the floor; that she was to be very careful and avoid any injury, any violent motions; that this bone could fracture if she sustained an injury.” There is no evidence, however, that defendant warned plaintiff that there was danger in lifting her leg in order to place her feet on the floor when she had been in a reclining position.
Plaintiff was discharged from the hospital February 13. The following day, she was lying on a sofa watching television. In attempting to rise, she lifted her left leg “just a little,” and it fractured at the site of the operation. She was returned to the hospital; and, it having been determined by this time that the tumor was benign, defendant performed another operation, in which he placed an intramedullary nail into the bone. In June 1964, the nail was removed. Plaintiff’s only complaint of permanent disability is that when she walks quite a bit, she gets tired and feels an ache in her leg.
Plaintiff requested that the trial court instruct the jury on the doctrine of res ipsa loquitur, but the trial court refused to do so. Thereafter, the jury returned a verdict in favor of defendant.
Question: Was plaintiff entitled to a res ipsa loquitur instruction on the basis of common knowledge among laymen that plaintiff’s injuries would ordinarily not have occurred in the absence of someone?s negligence?
Yes. In determining whether plaintiff was entitled to the benefit [324]of the res ipsa loquitur doctrine, the evidence must be viewed in the light most favorable to her (Farber v. Olkon, 40 Cal.2d 503, 505 [254 P.2d 520].) So viewing the evidence, we find that a res ipsa instruction should have been given.
In Clark v. Gibbons, 66 Cal.2d 399, 408 [6] [58 Cal.Rptr. 125, 426 P.2d 525], this court said: “As a general rule, res ipsa loquitur applies where the occurrence of the injury is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible. In determining whether such probabilities exist with regard to a particular occurrence, the courts have relied both on common knowledge and on expert testimony.” (Tomei v. Henning, 67 Cal.2d 319, 322 [1] [62 Cal.Rptr. 9, 431 P.2d 633].)
Thus, in order to be entitled to a res ipsa loquitur instruction, a plaintiff must present some substantial evidence which, if believed by the jury, would entitle it to draw an inference of negligence from the happening of the accident itself.
The initial surgery to remove the possibly cancerous tissues and the medical determination leading to defendant’s failure to use a brace or a cast on plaintiff constitute matters which lie beyond the pale of common knowledge of laymen. Although cancer has become a relatively common condition, laymen have no basis for understanding the treatment or symptoms of that disease. Not even the medical profession fully comprehends the cause or proper treatment of cancer. (Silvers v. Wesson, 122 Cal.App.2d 902, 904-905 [266 P.2d 169]; see Cancer Advisory Council (1965) Cancer, Cancer Quackery and the Cancer Law.)1 As to the initial operation and defendant’s failure to prescribe a brace or a cast, res ipsa would apply only if there were expert testimony which would support such an instruction; but the record completely lacks substantial evidence to support a res ipsa instruction on the basis of expert testimony.
As to defendant’s failure to instruct plaintiff that she faced a danger of breaking the leg from lifting it, however, there is considerable common knowledge among laymen upon which a res ipsa instruction might be based. It is just common sense that after removing a substantial portion of a patient’s leg bone, a doctor should warn his patient that there is considerable risk to the patient in lifting the leg horizontally until after the healing process has been completed. Neither such a warning nor the break[325]ing of the leg is so uncommon or so complicated that expert testimony would be required in order to render a res ipsa loquitur instruction appropriate. (See Bardessono v. Michels, 3 Cal.3d 780, 790-791 [91 Cal.Rptr. 760, 478 P.2d 480]; Wolfsmith v. Marsh, 51 Cal.2d 832, 835-836 [337 P.2d 70, 82 A.L.R.2d 1257].)
Unlike the situation in Siverson v. Weber, 57 Cal.2d 834 [22 Cal.Rptr. 837, 372 P.2d 97], where the injury was proved to be an inherent risk of the operation, no showing was made here that a leg fracture is an inherent risk of an operation such as was performed on plaintiff if proper precautions are taken. (See Gerhardt v. Fresno Medical Group, 217 Cal.App.2d 353, 357 [31 Cal.Rptr. 633].)
At the trial there was, as hereinabove indicated, a conflict in the testimony as to precisely what defendant’s instructions were. Defendant testified that he told plaintiff “to be very careful and avoid any injury, any violent motions.” Plaintiff testified that he told her to be careful and to put only a little weight on the leg. Defendant’s own testimony clearly shows that he recognized there was a risk of fracture if proper measures were not taken to support or immobilize the leg or instruct plaintiff with respect to the care required. In answering a question as to why he had not placed plaintiff’s leg in a cast, defendant stated, “Because, in my opinion, the amount of bone left remaining had sufficient strength to permit her a reasonable amount of activity, with precaution.” (Italics added.) With respect to defendant’s duty to give adequate instructions to plaintiff in the care she would have to use to avoid injury to her femur, the rationale of Meier v. Ross General Hospital, 69 Cal.2d 420 [71 Cal.Rptr. 903, 445 P.2d 519], is applicable.
Because there was a conflict in the testimony, and sufficient evidence was presented to support an inference of negligence from a failure to give proper precautionary instructions, plaintiff was entitled to have the jury consider the case under the res ipsa loquitur doctrine.
The judgment is reversed.
Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
Thus, legislative findings adopted in 1959 as part of legislation relating to cancer include a statement, “The importance of continuing scientific research to determine the cause or cure of cancer is recognized. ...” (Health & Saf. Code, § 1700.)