McCurdy v. Hatfield

GIBSON, C. J. The sole question presented, on this appeal from a judgment of nonsuit, is whether plaintiff made a prima facie case of malpractice in the treatment of injuries to her arm and shoulder. She relies on the testimony of defendant doctor as to what was proper practice, and she contends that defendant negligently departed from that practice by commencing manipulative treatments at too early a date and by improperly carrying the treatments beyond the point of tolerance.

There are sharp conflicts in the evidence as to the time defendant began the manipulative treatments and as to their extent and character. According to defendant’s testimony, the manner, time and extent of the treatments were strictly in accord with what he testified was proper practice. However, in passing on the propriety of a judgment of nonsuit every favorable inference and presumption fairly arising from the evidence must be considered, and all evidence tending to sustain plaintiff’s case must be accepted as true. The evidence of the defendant in a malpractice case comes within this rule and is to be considered, together with any other evidence, in the light most favorable to plaintiff. (Lashley v. Koerber, 26 Cal.2d 83, 90 [156 P.2d 441].)

Plaintiff was injured on January 4, 1944, and she received immediate treatment from defendant, an osteopathic [494]physician and surgeon, in whose office she was employed as medical secretary. X-ray pictures disclosed a fracture of the humerus which was technically described as an “epicondyle fracture, transverse fracture of the longitudinal epicondyle ’ ’ extending down into the elbow joint. Her arm was placed in a plaster cast with the forearm in a horizontal position. Infra-red light treatments were administered until January 31, when the cast was cut and further X-ray pictures were taken.

Plaintiff testified that on February 3, which was about four weeks after the fracture, defendant massaged her arm and flexed her elbow about in “all directions” for about 10 minutes. At that time she could not voluntarily move her elbow, and the manipulation caused very definite pain. On February 5, he gave the same manipulative treatment, except that it was more vigorous. She complained of the pain and told him she could not stand it, but he continued the manipulation after she made the complaint. Defendant massaged her arm and flexed her elbow every few days thereafter, and each of the subsequent treatments was “more violent and longer.” She cried after every treatment and repeatedly told defendant the manipulation was painful and that “there was a limit to what [she] could stand,” but he told her she was “babyish,” and that “it had to be done to get a good arm.” On March 3 or 4 defendant “did violent manipulation,” pulling the arm violently. Plaintiff screamed with pain, but defendant did not stop the treatment.