Bennett v. Los Angeles Tumor Institute

MOORE, P. J.

This is an appeal from a judgment of nonsuit in an action for malpractice against the respondents, Los Angeles Tumor Institute and Dr. Johnson, its radiologist, for damages resulting from X-ray burns allegedly caused by the negligence of defendant doctor in administering X-ray treatments to appellant for papillomae. The nonsuit was granted on two grounds: (1) the evidence failed to show that plaintiff suffered X-ray burns or that respondents were negligent in their treatment; (2) the evidence established without conflict that the action was barred by section 340, subdivision 3 of the Code of Civil Procedure.

The evidence did not require a submission to the jury. Prior to consulting defendant Johnson for relief, plaintiff was suffering from papillomae on the ball of each foot. The affliction had caused her considerable pain and had not responded to other treatments. Dr. Johnson administered X-ray therapy to her on three occasions at weekly intervals commencing February 6, 1947. The relationship of physician and patient terminated about six weeks after the last treatment. At that time, according to appellant, those portions of the soles to which the X-rays had been applied were deep red at the center, pink in the circumference of the circle, and it was all tender. In July the area treated started to granulate. To use the words of the appellant, it “had the appearance of crystallized fruit,’’ and from that time sloughing of the tissue continued and thereafter small blisters

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developed over the injured areas and over the dorsum of each foot. In February, 1948, the appellant was attended by Dr. Pritikin, a chiropodist, who testified that the ball of each foot over a circle one inch and a quarter in diameter was denuded and that there was a colorless exudate from the area such as is seen in burns. The condition did not respond to treatment by Dr. Pritikin and appellant was unable to pursue her ordinary occupation from May until October, 1948. Thereafter she received treatment from á dermatologist and the lesions on the bottom of her feet healed, leaving sear tissue over the sites of the lesions which appellant testified were sore and which apparently did not have the same amount of tissue underneath the surface as the balance of the area of her soles.

Dr. Johnson and appellant both testified that the X-rays were administered by placing a metal tube with an opening at the outer end three fourths inch in diameter against the bottom of the foot at the site of the papilloma. The balance of the foot, according to the doctor, was shielded by a sheath of lead. The unfortunate young woman had no recollection of a leaden shield.