Campos v. Weeks

JEFFERSON, J.

Plaintiff instituted a malpractice action against defendant doctor after she suffered an anaphylactic reaction to a hypodermic injection given to her by defendant. A jury trial resulted in a verdict in favor of defendant. From the judgment subsequently entered plaintiff appeals.

The trial court refused to give instructions requested by plaintiff on the doctrine of res ipsa loquitur. The single issue raised here is whether this was error.

The facts—as presented in a settled narrative statement under rule 7(a), California Rules of Court—are as follows:

Defendant testified (after being called to the stand by plaintiff pursuant to Code Civ. Proc., § 2055) that he is a practicing physician and surgeon. On January 3, 1961, plaintiff (a 65-year-old woman) came to his office and consulted with him in regard to a puncture-type cut on her left index finger. Defendant discussed with plaintiff the possibility of giving her tetanus antitoxin. Plaintiff stated she was afraid of taking a tetanus shot because her father nearly died after taking one. In response to defendant’s query as to whether plaintiff had any allergies to other medications, defendant replied that she had had penicillin without any reaction. Defendant advised an injection of penicillin as a preventative for tetanus and local infection of the finger. Plaintiff assented and defendant administered 300,000 units of penicillin into

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the deltoid region of her left arm, a proper dosage for a 65-year-old woman under the circumstances. Defendant was aware at the time of the possibility of an anaphylactic reaction, which is a known risk of an injection of penicillin. In addition to penicillin, defendant had tetanus antitoxin, tetanus toxoid and various other medications in his office available for use. He knew that a person could be given an eye or skin test but such tests are unreliable and not ordinarily used in connection with injections of penicillin. It is standard practice not to give such tests, and he gave no tests to plaintiff. The injection given to plaintiff was given in a routine manner.

About five minutes after the injection, while she was still in the reception room, plaintiff began to complain of distress, feeling pin pricks in her hands and head. She looked pale and gradually became in acute distress. Defendant observed that her condition had the characteristics of an anaphylactic reaction to penicillin and in his opinion she was suffering such a reaction. As soon as he observed this condition he administered emergency treatment consisting of adrenalin, and other medications and called an ambulance to take plaintiff to the hospital. He then arranged with an internist at the hospital, who specialized in such problems, to take over plaintiff’s care and treatment.