Bruck v. Adams

SALSMAN, J.

This is an appeal from an order granting the plaintiff’s motion for a new trial following judgment on a jury verdict in favor of the defendants in an action for medical malpractice.

Appellant Pliney Adams is a physician, specializing in anesthesiology. In treating respondent, he injected a local anesthetic by needle into respondent’s back, lateral to the midline and adjacent to the lumbar 1-2 interspace. Paralysis resulted. There was conflicting expert testimony on the issues of negligence and proximate cause.

At the conclusion of the trial, the court told the jury that respondent had the burden of proving his case by a preponderance of the evidence and correctly defined that phrase as meaning “. . . such evidence as, when weighed with that opposed to it, has more convincing force, and from which it results that the greater probability of truth lies therein. . .”

[587]

(See BAJI 21.) Later, however, the court instructed the jury on the same subject in the language of appellants’ instruction No. 18. That instruction reads in part: “If you believe that it cannot be determined with

reasonable certainty

whether the conditions of which plaintiff complains were or were not caused by any act or omission or commission of defendant doctor, or by anything over which he had no control, then in that event your verdict must be in favor of the defendant doctor, as you are not allowed to conjecture or speculate as to the cause of the injury. ’ ’ (Italics ours.)

The court granted respondent’s motion for a new trial on the ground that appellants’ instruction No. 18 was erroneous and prejudicial. We affirm the trial court’s order.

No principle of law is more thoroughly settled and firmly applied than the one which commits the granting of a new trial to the sound discretion of the trial judge.

(Shaw

v.

Pacific Greyhound Lines,

50 Cal.2d 153, 159 [323 P.2d 391] ;