Evans v. Sarrail

KAUFMAN, P. J.

Plaintiffs, Yvonne J. Evans and her husband, John, appeal from an adverse judgment in their action for malpractice, entered on an order granting a motion for a directed verdict made after the jury failed to agree on a verdict, pursuant to section 630 of the Code of Civil Procedure. Their complaint alleged negligent diagnosis and treatment by the defendant physician, Dr. J. A. Sarrail, an ophthalmologist, of Mrs. Evans’ eye condition as glaucoma, and proximately ensuing damage, including the mental suffering and fear resulting from the faulty advice to avoid pregnancy.

The rule as to motions under section 630 is the same as that applicable to nonsuits

(Carpenter

v.

Atchison, T. & S. F. Ry. Co.,

109 Cal.App.2d 18, 23 [240 P.2d 5]). Thus, the only question before us is whether there is any evidence from which the jury could have found for the appellants.

The circumstances of Mrs. Evans’ treatment were as follows: In May 1952, when she was 32 years old, Mrs. Evans had suffered severe frontal headaches for several months. Her family physician, Dr. Stuehler, upon finding no reason for the headaches after extensive examinations, suspected glaucoma, and referred her to the respondent, an experienced ophthalmologist. She first saw the respondent on June 7, 1952, at which time, he made extensive eye examinations and took her intraocular pressure, which was 30 millimeters. While a reading of 29 is within normal limits, 30 is considered

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“borderline.” She returned for further tests on June 10; the subsequent pressure readings on that date were 35, 37 and 40, 40. Respondent then diagnosed her condition as chronic simple glaucoma, and prescribed drops to lower the pressure. He saw her about once a month thereafter until August 1957, and repeatedly tested her intraocular pressure and changed the prescription for the drops when she developed allergic reactions. In June 1956, respondent felt that Mrs. Evans’ condition had responded well to the treatment and attempted to see if the intraocular pressure could be controlled without the drops. After three weeks without drops, the pressure returned to the borderline, and the respondent again prescribed the drops. By 1957, due to new developments in the field of ophthalmology, he concluded that Mrs. Evans had intermittent glaucoma.