McBride v. Saylin

SHENK, J. In this case a petition for hearing after decision of the District Court of Appeal, Second Appellate District, Division One, was granted for the reason that there appeared to be some merit in the contention of the defendants that the District Court of Appeal, in concluding that the evidence showed a prima facie cause of actionable malpractice, applied a test not sanctioned by the decided cases, and further because of the pendency before this court at that time of a petition for hearing in the case of Forbis v. Holzman, (Cal. App.) 45 Pac. (2d) 215, which has now been finally determined. (Forbis v. Holzman, 5 Cal. (2d) 407 [55 Pac. (2d) 201].) Upon a further consideration of the merits of the contention and the evidence appearing in the record in this case, we have arrived at the conclusion that the plaintiff introduced evidence which, under the applicable test, required a submission of the case to the jury. It is apparent that by the opinion of the District Court of Appeal it was not intended to change or alter the test required by law in such cases, which is: Was the treatment given by the defendant consistent with that reasonable degree of learning and skill usually possessed and rendered by others of his profession in the same locality under similar circumstances, having regard to the state of scientific learning at the time? By the use of the term ‘‘customary means” either in the testimony or the opinion of the District Court of Appeal, it is not to be supposed that the District Court of Appeal [136]intended to announce a rule that compliance with the test required the use of such customary means only, if a means were employed or were available which would conform to the test stated or to a higher standard. As thus understood the opinion of the District Court of Appeal does not contravene • the rule as announced in such cases as Patterson v. Marcus, 203 Cal. 550 [265 Pac. 222] , Hesler v. California Hospital Co., 178 Cal. 764, 766 [174 Pac. 654], and Houghton v. Dickson, 29 Cal. App. 321, 325 [155 Pac. 128], relied upon by the defendants. We therefore adopt as the opinion of this court, the following portions of the opinion of said District Court of Appeal, prepared by Mr. Justice Edmonds (pro tem.):

“Plaintiff sued the defendant physicians for alleged malpractice in the treatment of an injury. The trial court granted a motion for a nonsuit and entered judgment accordingly.

“The injury suffered by the plaintiff was sustained on August 23d when the head of a nail struck him in the eye. He went for treatment to a medical office owned by the defendant Saylin and operated under the fictitious name of Venice Industrial Emergency Hospital. There he saw Dr. Bulpitt, who was working for Dr. Saylin under a written contract ‘as resident physician and surgeon of the Venice Industrial Emergency Hospital . . . and as assistant in the general practice of medicine and surgery’, on a percentage basis with a minimum salary guaranteed.