SCOTT v. RAYHRER

irement of expert testimony when the negligence is sufficiently apparent to be understood by a layman without the use of expert medical testimony. The court distinguished Gilbert, stating: "Without question, the circumstances in Gilbert, supra, involved complex medical procedures beyond the comprehension of a layman. In that case, the mere presence of the broken piece of drain in the plaintiff's body was not enough to establish a prima facie case of negligence for several reasons. First, the drain did not show up on X-rays, and it could not have been seen by an external examination. Second, due to the nature and severity of the plaintiffs illness, the defendant had no reason to believe that plaintiff's suffering was caused by something other than his disease. Third, in presenting his case, the defendant put on undisputed expert testimony that not only was there no standard practice or procedure whereby a doctor, after removal, could determine whether the full length of the drain had been removed, but also that the defendant had engaged in no substandard medical practice in the course of his treatment of the plaintiff." ( Powell, at pp. 1122-1123.)

The Washington Supreme Court in Miller v. Jacoby (2001) 145 Wn.2d 65 [ 33 P.3d 68], took a different approach. In that case, the trial court entered summary judgment in favor of two physicians who were sued for malpractice for leaving a Penrose drain in a patient after kidney surgery because the plaintiff had presented no expert medical opinion to refute that submitted by the physicians. As in this case, one surgeon placed the drains and a different surgeon removed them. A court of appeal majority affirmed, concluding that "`without expert testimony, a layperson could not determine whether the physicians failed to act in a reasonably prudent manner.'" ( Id., 33 P.3d at p. 71.) The supreme court affirmed summary judgment as to the physician who placed the drain, stating: "Without knowing the professional standard of care for a health care provider placing a Penrose drain during surgery, a layperson would not be able to determine that Miller's injury would not have occurred absent negligence. . . . For these reasons, the doctrine of res ipsa loquitur is not available to impose liability [on the physician inserting the drain]." ( Id. at pp. 72-73.) With respect to the physician who removed the drain, the court reached a different conclusion, holding that a trier of fact should be permitted to use the doctrine of res ipsa loquitur to determine whether negligence occurred. ( Id. at p. 73.)

As noted above, no California court has determined whether a retained Penrose drain should be regarded as a "foreign object" so that common knowledge and observation among laymen is sufficient to indicate "`that the consequences of the professional treatment were not such as ordinarily would have followed if due care had been exercised'" ( Bardessono v. Michels (1970) 3 Cal.3d 780, 789 [ 91 Cal.Rptr. 760, 478 P.2d 480]), or whether the medical procedure involved is so complex that expert testimony is required to establish the requisites of the doctrine ( id. at pp. 789-790). It has been established, however, that "in determining whether the occurrence of injury is of such a nature that it probably was the result of the negligence of someone under the res ipsa loquitur doctrine, the trier of fact may rely on both medical testimony and common knowledge." ( Id. at p. 793, fn. 11.)

This court considered the doctrine of res ipsa loquitur in Blackwell v. Hurst, supra, 46 Cal.App.4th 939. There a jury found in favor of a dentist in a malpractice action arising from the death of a patient who aspirated a broken crown that the defendant dropped on her tongue. The trial court refused to give a res ipsa loquitur instruction. We reversed, holding that such an instruction should have been given, and that expert testimony was required. "The divergence in testimony on this issue illustrates that steps that a dentist might have taken to prevent aspiration of a dropped object are not matters of common knowledge." ( Id. at p. 944.)

Our decision in Blackwell is supported by Tomei v. Henning (1967) 67 Cal.2d 319 [ 62 Cal.Rptr. 9, 431 P.2d 633]. In that case, our Supreme Court reversed a judgment for a defendant doctor based on the trial court's failure to give a requested res ipsa loquitur instruction. While performing a hysterectomy, the doctor had accidently sutured the plaintiff's ureter in two places. Corrective surgery failed and it was necessary to remove the plaintiff's right kidney. The court held that a res ipsa loquitur instruction should have been given, and that expert testimony was required to determine negligence. "Since the res ipsa loquitur instruction permits the jury to infer negligence from the happening of the accident alone, there must be a basis either in common experience or expert testimony that when such an accident occurs, it is more probably than not the result of negligence. [Citations.] Since the question whether, in the light of past experience, the accident in this case was probably the result of negligence is not a matter of common knowledge among laymen, expert testimony is necessary to determine whether a probability of negligence appears from the happening of the accident." ( Id. at p. 322.)

The court explained the effect of such an instruction. "It would have focused consideration on the inferences that could be drawn from the happening of the accident itself as distinct from the inferences that could be drawn from the evidence of the specific procedures available to a surgeon to avoid suturing a ureter or to discover such suturing in time to correct it before closing the wound. . . . Had the instruction been given . . . the jury might reasonably have concluded that regardless of how the accident happened or how it could have been avoided, its happening alone supported an inference of negligence." ( Tomei v. Henning, supra, 67 Cal.2d at pp. 323-324.)

These cases persuade us that the trial court did not err in requiring the jury to rely on expert testimony in finding negligence. We do not agree with Scott that a retained Penrose drain should be treated like a retained sponge or clamp for purposes of res ipsa loquitur. The presence of the drain in plaintiffs body is superficially similar to a retained drain or sponge. However, the drain was not inadvertently left during surgery, it was inserted after surgery and was meant to be retained temporarily. The retention and removal of the drain involve complex medical procedures beyond the comprehension of a layman. Due to the nature and severity of Scott's symptoms, Dr. Iwasiuk had no reason to believe that Scott's continuing distress was caused by something other than his disease. In addition, plaintiff presented no evidence of a standard practice or procedure involving the determination of whether the full length of the drain had been removed. As in Blackwell, we conclude that the presence of a foreign object in Scott's body requires a res ipsa loquitur instruction, but that negligence must be established by expert testimony. The trial court did not err in this regard.

The Trial Court Did Not Err in Its Instruction to the Jury on the Standard of Care

The plaintiff in a medical malpractice action must show by competent expert evidence that the defendant's medical treatment fell below the community standard of care. ( Landeros v. Flood (1976) 17 Cal.3d 399, 408-410 [ 131 Cal.Rptr. 69, 551 P.2d 389].)

Scott requested the court give CACI No. 413 which states: "You may consider customs or practices in the community in deciding whether defendant acted reasonably. Customs and practices do not necessarily determine what a reasonable person would have done in defendant's situation. They are only factors for you to consider. [¶] Following a custom or practice does not excuse conduct that is unreasonable. You should consider whether the custom or practice itself is reasonable." The court did not give this instruction when it explained the standard of care to the jury.

Instead, the court instructed the jury with CACI No. 502, the standard jury instruction as to the standard of care for medical specialists, as follows: "A general surgeon is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful general surgeons would use in similar circumstances. This level of skill, knowledge and care is sometimes referred to as the `standard of care.' You must determine the level of skill, knowledge and care that other reasonably careful general surgeons would use in similar circumstances based only on the testimony of the expert witnesses, including Dr. Iwasiuk and Dr. Rayhrer, who have testified in this case."

The court then instructed the jury with CACI No. 505 which states: "A general surgeon is not necessarily negligent just because his or her efforts are unsuccessful or he or she makes an error that was reasonable under the circumstances. A general surgeon is negligent only if he or she was not as skillful, knowledgeable, or careful as other reasonable general surgeons would have been in similar circumstances."

Scott argues that the failure of the court to give CACI No. 413 was prejudicial error because, in the absence of the instruction, the jury was left with the impression that conforming to a customary practice insulated defendants from liability arising from that practice. This argument is contrary to the well-established principle that the law "` "demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he [or she] exercise ordinary care in applying such learning and skill to the treatment of [the] patient." [Citation.]' [Citation.]" ( Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 998, italics omitted.) CACI No. 413 applies only where the standard of care is within common knowledge. ( Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 519 [ 305 P.2d 36].) The instruction is not appropriate where, as here, the standard of care must be established by expert testimony. (See Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 276-277 [ 7 Cal.Rptr.2d 101] [where expert testimony is needed to show negligence, that testimony establishes the standard of care].)

The judgment is affirmed. Respondents shall recover costs on appeal.

Gilbert, P. J., and Coffee, J., concurred.

Appellants' petition for review by the Supreme Court was denied September 15, 2010, S184999.