HANSON, J., Concurring and Dissenting. While I concur in the majority opinion insofar as it affirms the directed verdicts in favor of Dr. Greenberg and Mr. King, I dissent from the reversal of the judgment as to respondent Northridge Hospital Foundation. I would also affirm that judgment.
Contentions
The trial court as part of BAJI No. 6.35 (Medical Malpractice—Conditional Res Ipsa Loquitur) instructed the jury on the three elements upon which the doctrine of res ipsa loquitur is conditioned, namely, (1) that the plaintiff’s injury was of a kind which ordinarily does not occur in the absence of negligence; (2) that it was caused while the plaintiff was exclusively under the care or control of defendant; and (3) that it was not due to any voluntary action or contribution by the plaintiff which was the responsible cause of his injury.
[133]On appeal, plaintiff asserts that the failure of the trial court to instruct the jury, as a matter of law, that elements (2) and (3) above had been established constituted reversible error, particularly with reference to condition (2), because of the answers by respondent Hospital to interrogatories propounded by the plaintiff, which were read to the juiy, that the nurses were “under the direction or supervision” of Dr. Greenberg in light of the directed verdict in favor of Dr. Greenberg.
Discussion
The general rule is that error is not reversible unless it is prejudicial and by reason of such error a different result would have been probable,4 which resulted in a miscarriage of justice.5
The court’s instruction, if given, that elements (2) and (3) above had been established as a matter of law would have had to have been based on the same evidence the trier of fact (the jury) heard and the same principles of law of which they (the jurors) were instructed. “It must be assumed that the jury understood the instructions and correctly applied them to the evidence.” (Zuckerman v. Underwriters at Lloyds, 42 Cal.2d 460, 478-479 [267 P.2d 777].)
One answer by the defendant hospital to plaintiff’s interrogatories which was read to the jury is singled out. It cannot be viewed in a vacuum but must be viewed in light of the totality of the evidence, direct and indirect. The plaintiff propounded the questions; the defendant hospital answered the questions. They were placed into evidence. The [134]jury was entitled to have the evidence reread.6 The respondent has no basis in fact that the one answer to the interrogatories, singled out, influenced the jury’s verdict.7 The direct testimony of the Nurse Juanita Uy clearly showed that the nurses are employed by the hospital and that it was a matter of discretion with the nurses where injections were to be given and not the doctors.8 The interplay of the evidence and the [135]applicable principles of law were undoubtedly covered in final argument by the competent trial lawyers, as was indicated during oral argument on appeal. The trial court gave this matter careful consideration on three separate occasions when this issue was first raised during the trial, following the jury’s request for the rereading of the interrogatories9 and again during the motion for a new trial.
Since we must assume that the jury understood the instructions and correctly applied them to the evidence, and that elements (2) and (3) were established by the evidence, was there substantial evidence upon which the jury could base a finding that condition (1) was not established? Yes.
The testimony of Dr. William L. Hewitt, with 20 years experience as an internist, a subspecialty of infectious diseases and the head of that division at UCLA Medical School, called by the defense as an expert, constituted substantial evidence upon which the jury could have based a finding that condition (1) above was not established. Dr. Hewitt on direct examination testified that, based on a review of pertinent hospital records, doctors’ reports and X-rays, the plaintiff did not acquire any infection as a result of injections. He based his opinion primarily on two reasons which he explained to the jury.10
[136]The record reflects that the plaintiff has had her full day in court under our adversary system of justice. She had a jury trial in a courtroom fairly presided over by an experienced judge who adequately instructed in the law of the case. She was represented by competent counsel.
[137]After reviewing the entire record on appeal, I cannot say that the error, if any, was prejudicial and that the result would probably be different on retrial or that there was a miscarriage of justice.
For the reasons stated, I would also affirm the jury verdict in favor of defendant Northridge Hospital Foundation.
Code of Civil Procedure, section 475 provides in toto: “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court', does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Italics added.)
California Constitution, article VI, section 13 provides: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. ” (Italics added.)
“THE COURT: Ladies and gentlemen, first of all, I note, Mr. Scott, you are the foreman; is that correct, sir?
“MR. SCOTT: Yes, sir.
“THE COURT: I have your question here. ‘Are the interrogatories available to review?’
“First of all, let me ask, Mr. Scott, are you talking about all of the interrogatories that were read into evidence or just some of them?
“MR. SCOTT: The interrogatories that were read into evidence is what he wanted to review. One member was interested in learning about the injections, for instance, which were discussed.
“THE COURT: I see.
“Well, I can have the reporter go to that portion of the transcript or the proceedings in her notes and have it read back to you, but the reason I am inquiring is that there may have been different areas covered by the interrogatories, so you want to hear all of them, is that it?
“MR. SCOTT: I believe there was an interest in all of those.”
“THE COURT: Mr. Moacanin, do you believe the jury decided this case on the basis that this plaintiff was—They found the plaintiff was not exclusively under the care of the nurse when the injection was given? Do you believe that is truly why the jury came to the conclusion it came to?
“MR. MOACANIN: Well, to answer your question directly, I do not know. We cannot know and, as a matter of fact, interestingly that happened after, the jury was discharged. They wouldn’t talk to neither me nor Mr. Dyer, which is the first time that happened to me, and it was a great surprise to us lawyers, that they wouldn’t comment and explain how they arrived at the verdict, but I would say that certainly—
“THE COURT: They would not talk to you?
“MR. MOACANIN: They would not talk to neither me nor Mr. Dyer and they just filed out and said, ‘We don’t want to talk,’....”
“Q Now, as of August 24th of 1969, were you employed as a registered nurse by the Northridge Hospital Foundation?
“A Yes, I am.
“Q And at that time what department in the hospital were you assigned to?
“A In the maternity section.
“Q And as of August 24th of 1969, were you familiar—First of all, did the hospital have a policy or routine that was followed for the preparation of medications to be administered intramuscularly to a patient by injection?
“A Yes, we had.
“Q What was that procedure?
“A Well, we have this medication card. We check the medication and then if it is like for injection, we take a sterile syringe and needle and the medication. We open the ampules, then we open the sterile syringe and we draw the medication.
“We go to the patient with this medication all prepared in a tray, with alcohol sponges, and then we go to the patient, read the name to the patient, who the patient is, and then make sure the medication is for this patient, and then we give it intermuscularly either left or right upper outer quadrant of the buttock.
“Q In other words, assuming that—usually do the orders of the doctor indicate where [135]the injection is to be given or is this a matter of discretion with the nurses?
“A It is a matter of discretion for the nurse.”
“THE COURT: ‘Under whose direction or supervision said injection was administered.’
“Now, I don’t think that question in and of itself precludes the jury or would suggest to the jury that the patient was under the control of someone else at the time the injection was given.
“I think it would be my feeling in viewing the evidence and the reasonable inferences to be drawn therefrom, that at the time the nurse gave the injection the patient was under her exclusive control. I don’t think there really should be any question in the jury’s mind that that was so.
“In other words, based upon personal experience, I am sure we have all had the same experience, we have a shot, whoever is giving it says, ‘Lower your pants,’ or, ‘Roll up your sleeve,’ and you then take your directions from them, and they have control of you.
“Now, as far as whether the doctor ordered the injection I think is one step beyond that. I frankly don’t think that the jury should be advised further at this point unless they seek some advise [j/c], ■
“I think I would be committing error either for or against one of the parties in commenting upon the control element in the case unless they specifically request what effect if any does the dismissal or the directed verdict of Dr. Greenberg have upon the control exercised over the patient.
“Now, if they came up with that question, then, of course, I would be called upon to give them by observations.”
“Q Doctor, based upon your review of the X-rays and the medical records, have you arrived at an opinion with regard to whether or not the plaintiff in this action contracted [136]an infectious disease as a result of an injection or several injections into the right buttock?
“A Yes.
“Q What is your opinion, Doctor?
“A I do not believe she acquired any infection as a result of injections.
“Q What are the reasons that you base this opinion upon?
“A Well, first of all, I think there is a pretty good alternative explanation, which I can go into if you wish me to.
“Q Certainly.
“A Second, I think that the location of the infection demonstrated by x-rays would be extremely difficult to acquire by means of any injection.
“THE WITNESS: As you look at this x-ray from the side of the body, what you see here is the front of the patient, the front of the individual, and then—and here is the bone that you feel right down in the front, and right back of that is the bladder, and then coming in down here is the vagina, and swinging up over the bladder is the uterus. Back of that is the rectum, and back of that is the sacrum.
“The drainage—the normal venous drainage and the lymphatic drainage—that is the drainage of the body fluids from the area of the bladder and the vagina and uterus and the rectum go back to a formation of veins and drainage that lies right behind the rectum, between the rectum and the sacrum and the spine, and for that reason infections which occur in the bladder and in the vagina and uterus and in the rectum may be associated with osteomyelitis; particularly of the spine, and that is why, say, in pyelonephritis or acute kidney infections osteomyelitis of the spine is more common than any other kind of osteomyelitis because this drainage of material which may be infected in it and the bacteria tends to go back into this portion of the body.
“Now, I think that that is really the story and the explanation for this area which is probably osteomyelitis in this patient; namely, that because there is a certain amount of infection normally present in the uterus at the time of delivery, and at the time of an episiotomy, that at the time of delivery some of these organisms drain back to this area of the spine and establish an infection there which was with an organism commonly resident in the uterus; this is sensitive to ampicillin and despite the fact that usually this type of disease does not respond to brief periods of therapy, that this treatment was sufficient in this patient for her to control her disease.
“It is possible that if she had been treated more vigorously with antibiotics she might have responded more rapidly than she had and not have had pain as long, but nevertheless her defenses and brief period of treatment which she had were sufficient to control the infection of bone.
Í6
“THE WITNESS: The point that I make with regard to the area of the inflamatory process being difficult to reach by a needle, is indicated by this area. (Indicating)
“Now, if you realize that this is the midline, of the back, then if you—with your own hand, just feel where that main projection of the sacrum comes out in your back, obviously this is a distance of only about two or two and a half inches from the midline—well, it is going to be very difficult for an injection, which is giving the needle out in the outer portion of the buttock—that is, in this portion of the buttock, or even in this portion of the buttock, it is going to be very difficult to get a needle into this area because the usual length of the needle is, say, an inch and a half or two inches, and it is just—
[137]“This is just not that close to where a needle can get if it is stuck into the tissues out here, so that this is not an area which is really approximate or close to the area where an injection would ordinarily be given.
“Furthermore, this bone is right underneath the skin, and anybody who is going to give—a nurse or professional person who is going to give an injection is highly unlikely, I would think, to attempt to put a needle right into a place where a bone is right underneath the skin.
“So that is the basis for my saying that I think that this area in which the inflamatory process has occurred is really quite distant from where one would ordinarily make an injection.”