Chase v. Haber

BURKE, P. J.

Plaintiff sued for damages for injuries allegedly resulting from unsterile injections causing abscesses. Plaintiff, a medical assistant and receptionist in defendant’s office, was treated by defendant for pneumonia and in the course of treatment received 47 injections in her buttocks.

[570]

About three to four months after the initial injections approximately 30 severely infected abscesses appeared in the areas injected. The origin of such infection was unknown but plaintiff attributed the infection to alleged malpractice of defendant. Trial by the court, jury having been waived, resulted in a judgment for defendant from which plaintiff appeals.

Plaintiff assigns as errors (1) that the decision is against law, and (2) that the evidence was insufficient to justify the judgment.

Plaintiff contends that the doctrine of res ipsa loquitur applies here

(Bauer

v.

Otis,

133 Cal.App.2d 439 [284 P.2d 133]); that the doctrine is applicable in malpractice eases, citing

Ybarra

v.

Spangard,

25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258], from which authority the conditions for application of the doctrine are set forth as, (1) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff, (2) the accident must be caused by an agency or instrumentality in the exclusive control of the defendant and, (3) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence.

Plaintiff urges that the evidence discloses no voluntary action or contribution on her part that could have caused her infected condition (and the court so found) ; that infections do not ordinarily occur during medical treatment unless there is negligence; that the infections occurred in the areas where the injections were given; that the condition was not systemic and bacteria is a living organism not of crystalline structure; and that the control of bacterial organisms entering under plaintiff’s skin was in the exclusive care, knowledge and control of defendant.