Huffman v. Lindquist

234 P.2d 34, 37 Cal. 2d 465, 29 A.L.R. 2d 485, 1951 Cal. LEXIS 300

• Court: California Supreme Court
• Decided: June 29, 1951
• Docket: L. A. 21416
• Status: Published

Opinions

SPENCE, J.

Plaintiff brought this action against defendant doctor and defendant hospital for alleged malpractice and negligence in the treatment and care of her deceased son after he had been injured in an automobile collision. At the close of plaintiff’s case, nonsuits were granted to defendant doctor and defendant hospital upon their separate motions therefor. Judgments were entered accordingly and from said judgments, plaintiff appeals.

In challenge of the propriety of the nonsuits, plaintiff claims that she made out a prima facie case of malpractice and negligence on the part of defendants as the proximate cause of her son’s death. But viewing the evidence in the light most favorable to plaintiff and disregarding conflicts, in accordance with the settled rule applicable in testing the validity of nonsuits (Lawless v. Calaway, 24 Cal.2d 81, 85 [147 P.2d 604]; Lashley v. Koerber, 26 Cal.2d 83, 84-85 [156 P.2d 441]; McCurdy v. Hatfield, 30 Cal.2d 492, 493 [183 P.2d 269]), the conclusion appears inescapable that plaintiff’s position cannot be sustained.

Plaintiff’s son, 19 years old, suffered a head injury and fractured skull in an automobile collision near midnight of Saturday, March 16, 1946, and he was taken to defendant hospital for treatment. About an hour later — 1 a.m. Sunday, March 17 — an intern notified plaintiff that her son had been injured. In response to her inquiry if he was the doctor in charge, he said that he was an intern but that Dr. Lindquist took care of emergency cases. Approximately 15 minutes later plaintiff arrived at the hospital, where she remained in her son’s room constantly, with the exception of short intervals and one two-hour period, until his death about 1 a.m. Monday, March 18.

Upon her arrival plaintiff found her son in the emergency room attended by Dr. Brothers, an intern, who, upon inquiry, told her that defendant doctor would be there shortly. At that time the boy was conscious and able to speak to plaintiff. Thereafter, about 2:30 a.m. (Sunday, March 17) he was moved to a private room, at which time he was “kind of dopey” and “drowsy,” not restless, and while he seemed to understand statements made to him, he did not answer.

Defendant doctor made his first visit to plaintiff’s son at 10 o’clock Sunday morning, at which time when examined by the doctor, the boy seemed “more unconscious” but was still not restless. At 12 noon the boy became restless, hot and feverish; the last time he spoke was about 1.15 p.m.; and the last sign of physical recognition was about 3 o’clock that Sunday afternoon. At 3:45 p.m. he became very restless and feverish, was not able to understand plaintiff, and although not “completely unconscious,” he was “very much worse.” At 7:30 o’clock Sunday evening defendant doctor visited the boy, felt his pulse and opened his eyes. Plaintiff left the hospital for a couple of hours — 9 p.m. to 11 p.m.— and upon her return, she observed a serious change in his condition; he was unconscious and in a coma, not moving, and was breathing very hard and labored; had developed a rattle in his throat. At 12:45 o’clock the next morning, Monday, March 18, the boy stopped breathing, though his heart was still beating, as defendant doctor entered the room. The doctor immediately called for a respirator or pulmotor, and Dr. Schetgen, an intern, brought the pulmotor but it failed to function; it was replaced, but the second one also failed to work. Then finally, a third machine was procured and used one or two minutes, when defendant doctor pronounced the boy dead.

The boy’s sister spoke to defendant doctor at 5 p.m. and at about 7:30 p.m. on Sunday, stating that she desired to have a certain brain specialist called on the case; that she felt that her brother’s condition was “very bad” and something should be done that evening. She testified that the doctor said that he would see what could be done along that line the next day.

The death certificate, introduced in evidence by plaintiff, showed the immediate cause of death to be “pulmonary embolism,” due to “cerebral contusion and hemorrhage” due to ‘ ‘ fracture of skull. ’ ’

The only direct expert testimony was that of defendant doctor, called as a witness by plaintiff under section 2055 of the Code of Civil Procedure. He testified that the emergency service of the hospital called him about 1 or 1:30 a.m. Sunday, March 17; that the reporting intern said that he thought the patient “had a possible skull fracture ... a brain injury . . . was semi-conscious”; that he told the intern to have the patient admitted and to watch him, keep a chart of hourly recordings as to blood pressure, pulse and respiration, and report any change, and give the patient some sedative (phenobarbital or codeine) in the event that he became restless. According to the doctor, when he first saw the boy about 10 o’clock Sunday morning, the boy was “semi-conscious, rather restless ... his blood pressure . . . pulse and temperature were within normal limits ... his eyes were dilated but they reacted to light.” The doctor stated that he did not prescribe any different care except to order a glucose injection, but he recognized then that the boy had a brain injury with “some hemorrhage”- — either epidural (between the bony vault of the brain and the dura, which is the tough membrane surrounding the brain) or subdural (between the dura and the brain) — although he did not know the extent or location until he “saw the coroner’s report”; and he added that he saw the boy four times on Sunday, March 17: about 10 o ’clock in the morning, at noon, a little before 7:30 p.m., and around midnight.

Defendant doctor further testified that he specialized in traumatic surgery; that he had been in practice and on the staff of defendant hospital for 22 years in attending emergeney cases; that he had assisted in brain operations, and when he had a brain injury ease he was accustomed to calling in a specialist if he thought the condition of the patient so warranted; that a brain injury is usually accompanied by dilation of the pupils of the eyes, a condition which, when accompanied by lack of reaction to light, is one of the symptoms of an epidural hemorrhage; that when he examined plaintiff’s son at 10 o’clock Sunday morning, the pupil of the boy’s right eye was slightly dilated, though it still reacted to light, and he found a suggestive Babinsky, indicative of a brain injury.

The autopsy report recited that plaintiff’s son had an “epidural hemorrhage 1.5 cm. thick.” When questioned as to the factors considered in “determining whether or not there is epidural hemorrhage,” the doctor stated: “I take into consideration whether he is getting any increased intracranial pressure, which is the usual sign, as they become gradually more unconscious, go into a deep stupor, their blood pressure usually climbs way high with a slowing of their pulse, . . . the respirations get slower, and [the] pupil then generally becomes dilated completely, right out to the rim, and it is fixed, you cannot make it contract with any amount of light you wish to put in it ... As a general rule, from all I can find out in talking to neurosurgeons, when a pupil will react to light, it is not serious.” Then in reply to the question “All right, Doctor, let us assume that you have a case of epidural hemorrhage, ... is it not true that if the bleeding continues and no operation is made to clean out that clot, open the brain, the patient will surely die,” the doctor said: “Certainly if the hemorrhage continues to make that clot big enough to create enough pressure on your brain, you are going to die, surely.”

In discussing the classical picture of an epidural hemorrhage, the doctor stated that in the majority of cases the patient is (1) unconscious; (2) lucid; (3) gradually unconscious. He described the “lucid interval” as a condition where “a patient receives some head injury, is knocked unconscious, maybe minutes, maybe seconds, he then becomes conscious, the usual thing is he gets up, walks around about his business, whatever it is, then an hour, two hours, ten hours, twelve hours that patient begins to complain of headache, the headache increases and if somebody examines his pulse, he will start to become slower, if it goes long enough, he will become unconscious.” The doctor testified that the conservative (nonsurgical) rather than the radical (operative) treatment was better in the early stages of a head injury case; that pursuant to his instructions, the interns and attendants at the hospital “were giving [the boy] the conservative treatment to try to keep him quiet; they were taking his blood pressure ... his pulse ... his temperature, his respirations to indicate” if his intracranial pressure was increasing; that the boy’s condition on the occasion of his 7:30 o’clock visit Sunday evening was about the same as it had been that morning; and that the chart readings shown for 11:30 o’clock that evening revealed the boy’s condition to have become worse, that “something went wrong” in the boy’s brain, but still the symptoms were “not necessarily” those indicative of an epidural hemorrhage as distinguished from some other type of brain bleeding. With regard to the death certificate’s recital of “pulmonary embolism” as the immediate cause of death, the doctor stated the term meant a “foreign body, a blood clot that has lodged in a blood vessel,” in this case “the lungs”; that, in his opinion, the “embolism, [the] blood clot which caused death in the lungs [could] not come from” an “epidural hemorrhage” but had to have “some other origin”; that whether “bleeding inside the brain” could “have led to an embolism,” he was “not enough of a pathologist to answer that” but that “pulmonary emboli,” the “nightmares of surgeons,” can come from very trivial things, minor injuries, “can originate in any blood vessel in [the] body”; and that he knew of no “way in the world, with the boy with a head injury such as [he] found, that [he] could have prevented the formation of a pulmonary embolism. ’ ’

With respect to her malpractice charge against the doctor, plaintiff claims that the evidence, together with reasonable inferences legitimately dedu,eible therefrom, establishes a prima facie case of negligence against the doctor by reason of his failure to diagnose at the outset the presence of epidural hemorrhage as the brain injury suffered by her son and to recognize the need for an operation by a brain specialist to remove the intracranial pressure on her son’s brain. In this regard she maintains that the pulmonary embolism was a terminal condition appearing because of the failure to perform the brain operation. Defendant doctor contends that the physical condition of plaintiff’s son did not reflect the classical picture of an epidural hemorrhage or suggest the adoption of any procedure other than the conservative, nonsurgical treatment recommended and regularly followed by the medical profession in brain injury cases. He further maintains that the evidence beyond contradiction establishes that plaintiff’s son died as the result of a blood clot on the lungs caused by the original fractured skull, bruising and bleeding of the brain, and that there is absent any showing of causal connection between the treatment he followed and the formation of the fatal blood clot.

There are certain general principles to be noted in relation to malpractice cases. The “law has never held a physician or surgeon liable for every untoward result which may occur in medical practice” (Engelking v. Carlson, 13 Cal.2d 216, 220 [88 P.2d 695]; Lashley v. Koerber, supra, 26 Cal.2d 83, 88-89) but it “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 exercise ordinary care in applying such learning and skill to the treatment of his patient” (Lawless v. Calaway, supra, 24 Cal.2d 81, 86). No different or “higher degree of responsibility” is imposed “in making a diagnosis than in prescribing treatment.” (Patterson v. Marcus, 203 Cal. 550, 552 [265 P. 222]; see, also, Ries v. Reinard, 47 Cal.App.2d 116, 119 [117 P.2d 386].) A doctor’s failure to possess or exercise the requisite leárning or skill “in a particular case is generally a question "for experts and can be established only by their testimony” (Trindle v. Wheeler, 23 Cal.2d 330, 333 [143 P.2d 932]; also Church v. Bloch, 80 Cal.App.2d 542, 547 [182 P.2d 241]), which “expert evidence is conclusive” where it appears that the “matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen” (Engelking v. Carlson, supra, 13 Cal.2d 216, 221). Application of these principles in this ease sustains defendant doctor’s position that plaintiff’s charge of malpractice is not supported by the record.

The classical symptoms of an epidural hemorrhage, as the basis for defendant doctor’s diagnosis and as recited by him, did not appear according to the chart readings and observations of plaintiff’s son made at the hospital. With an inconclusive record before him — failing, as it did, to exhibit the accepted pattern confirmatory of an epidural hemorrhage — defendant doctor maintains that there was nothing to indicate that the usual conservative treatment followed in brain injury cases was inappropriate in relief of plaintiff’s son, or that there was need for consultation with a brain surgeon upon the premise that an epidural hemorrhage was in fact present. However, to this latter point, it might be noted that defendant doctor testified that while he did not think it necessary, nevertheless following the request of the family, he did discuss the condition of plaintiff’s son with one of four specialists whom he regularly used in brain injury cases, and that after he “gave . . . the symptoms,” the specialist said “there was nothing to be done that was not being done.” No evidence was produced in contradiction of this testimony.

“Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved.” (Engelking v. Carlson, supra, 13 Cal.2d 216, 221; Lashley v. Koerber, supra, 26 Cal.2d 83, 89.) While in a restricted class of malpractice cases the courts have applied the doctrine of res ipsa loquitur, that has been only where “negligence on the part of a doctor is demonstrated by facts which can be evaluated by resort to common knowledge [and] expert testimony is not required since scientific enlightenment is not essential for the determination of an. obvious fact.” (Lawless v. Calaway, supra, 24 Cal.2d 81, 86.) But this is not such a case, for here what was done lay outside the realm of the layman’s experience. The physical factors to be noted in the diagnosis of the brain injury, as well as the merits of such a diagnosis, were matters of medical learning, peculiarly within the knowledge of experts. An analogous situation was involved in Lawless v. Calaway, supra, where an internal abdominal ailment was erroneously diagnosed and treated as ptomaine poisoning instead of appendicitis, and the patient died of a ruptured appendix. In commenting upon the sufficiency of the evidence to withstand the granting of a nonsuit in favor of the defendant doctor, the court said at page 89: “It was not only necessary for plaintiff to prove a mistake in diagnosis, but also that the mistake was due to failure to exercise ordinary care in making the diagnosis (Patterson v. Marcus, 203 Cal. 550, 552 [265 P. 222]), and mere proof that the treatment was unsuccessful is not sufficient to establish negligence. (Nicholas v. Jacobson, 113 Cal.App. 382, 386 [298 P. 505].) ” So here, the record presents at most a case of mistaken diagnosis, but according to the only expert evidence on the procedure followed, that of defendant doctor, the symptoms exhibited by plaintiff’s son were not such as customarily accompany an epidural hemorrhage. Mere error of judgment, in the absence of a want of reasonable care and skill in the application of his medical learning to the case presented, will not render a doctor responsible for untoward consequences in the treatment of his patient (Hesler v. California Hospital Co., 178 Cal. 764, 766-767 [174 P. 654]; Perkins v. Trueblood, 180 Cal. 437, 441 [181 P. 642]; Jensen v. Findley, 17 Cal.App.2d 536, 543 [62 P.2d 430]), for a doctor is not a “warrantor of cures” (Johnson v. Clarke, 98 Cal.App. 358, 361 [276 P. 1052]) or “required to guarantee results” (Adams v. Boyce, 37 Cal.App.2d 541, 549 [99 P.2d 1044]; also Markart v. Zeimer, 67 Cal.App. 363, 371 [227 P. 683]; Rising v. Veatch, 117 Cal.App. 404, 409 [3 P.2d 1023]; Beni v. Abrons, 130 Cal.App. 206, 211 [19 P.2d 523]; Sansom v. Ross-Loos Medical Group, 57 Cal.App.2d 549, 552-553 [134 P.2d 927]).

So distinguishable is the case of McCurdy v. Hatfield, supra, 30 Cal.2d 492, cited by plaintiff, where a judgment of nonsuit was reversed. There the plaintiff testified concerning the treatment she received from the defendant doctor, and the latter’s own testimony established his negligence in view of his admission that the procedure he allegedly followed in plaintiff’s case “would be bad practice.” (P. 495.) Such medical testimony “as to what was proper practice” was presumably “based on the standard of care used by physicians in the locality”; if the defendant doctor “failed to conform” therewith, “he did not act as a reasonable physician should under the circumstances”; and a “prima facie case of negligence” was established, for the evidence was such that “a jury could have found that defendant was negligent in departing from the standard of care required.” (Pp. 495-496.) But the present record is devoid of any evidence from which it could reasonably be inferred that defendant doctor was guilty of any breach of proper practice in his diagnosis or treatment of the boy’s brain injury according to the symptoms revealed; and under these circumstances the record must be held lacking in any evidence to establish negligence on his part.

Moreover, regardless of any question of the insufficiency of the evidence to establish negligence, there is no evidence to show that any act or omission on the part of defendant doctor was the proximate cause of the boy’s death. The uncontradicted evidence introduced by plaintiff showed that the “immediate cause of death” was the pulmonary embolism, arid there is no evidence to show that such embolism would not have caused the death in spite of the most careful and skillful diagnosis and treatment. In short, the evidence is wholly insufficient on the issue of proximate cause, as there is no evidence to show that anything that might have been done by anyone in the diagnosis or treatment of plaintiff’s son would have prevented the boy’s unfortunate death, at the time and in the manner that it occurred, as the result of the pulmonary embolism following the serious injuries which he received.

Plaintiff further complains of the trial court’s exclusion of certain testimony of the special nurse on duty in care of plaintiff’s son. This testimony concerned an intern’s statement to her as to the advisability of an operation in relief of the boy’s condition. The testimony was excluded as hearsay. Admittedly, defendant doctor was not present at the time of the making of the statement, nor was there any proof that such statement was ever communicated to him. The intern was in the employ of the hospital. There was no evidence of any authority on the part" of the intern to speak for defendant doctor in the matter (Whitaker v. Title Ins. & Trust Co., 186 Cal. 432, 435-436 [199 P. 528]) or any premise for invocation of the doctrine of respondeat superior. (Harris v. Fall, 177 P. 79, 85; Stewart v. Manasses, 244 Pa. 221 [90 A. 574, 575].) Under these circumstances the court properly excluded the testimony in question. Nor is there any merit to plaintiff’s challenge of the propriety of the trial court’s ruling in sustaining the objection to the qualification of Dr. Prank Webb to testify as an expert with regard to the question of whether defendant doctor had exercised the proper and requisite degree of skill and care. A medical expert is not qualified as á witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. (Sinz v. Owens, 33 Cal.2d 749, 753 [205 P.2d 3, 8 A.L.R2d 757]; Moore v. Belt, 34 Cal.2d 525, 532 [212 P.2d 509].) It is for the trial court to determine, in the exercise of a sound discretion, the competency and qualification of an expert witness to give his opinion in evidence (Mirich v. Balsinger, 53 Cal.App.2d 103, 114 [127 P.2d 639]), and its ruling will not be disturbed upon appeal unless a manifest abuse of that discretion is shown. (2 Wigmore on Evidence [3d ed.], § 561, p. 641; Sowden v. Idaho Quartz M. Co., 55 Cal. 443, 451; Sinz v. Owens, supra, 33 Cal.2d 749, 755-756.) The competency of an expert “is in every ease a relative one, i.e. relative to the topic about which the person is asked to make his statement.” (2 Wigmore on Evidence [3d ed.], § 555, p. 634.)

Dr. Webb’s qualifications were examined at considerable length. It appeared that following his graduation from the College of Physicians and Surgeons, Columbia University, in 1902, he had served on hospital staffs and engaged in general medical practice, “gradually drifting into obstetrical work and gynecology”; that in 1912 he came west in the employ of a Canadian railroad and supervised for three years a hospital which it maintained principally for the care of accident and traumatic injury eases, but also for the treatment of varied pathological diseases; and that in 1915 he located in Los Angeles, where he joined the teaching staff of a local university and for six years gave courses on anatomy in the medical and dental schools. While so acting as a college instructor and in 1917, he became associated with the county coroner’s office, and remained there until his retirement from the medical field in 1946, serving first as an assistant and then for the final six years as Chief Autopsy Surgeon. Dr. Webb testified that in his 29 years with the coroner’s office he performed some 35,000 to 40,000 autopsies, including some 5,000 cases of head injuries; and that in the determination of the cause of death in each instance, it was his custom to obtain a complete history of the ease as to diagnosis and treatment, with many of the consultations concerning brain injuries. On cross-examination, it appeared that Dr. Webb was not a member of the county medical association; that he had never associated himself with any hospital staff during his practice in Los Angeles; and that in the performance of his duties in the coroner’s office, his consultation with other doctors in reference to head injury cases consisted in their advising him, after the treatment was given, what was done but that he took “no initiative in the treatment.” It further appeared that during the past 25 years he had never operated on any living patient; that in the last 10 years he had never actively participated in the treatment of any case involving a head injury or an embolism, and that his only connection in that time with the care of a patient suffering from an epidural hemorrhage was his reference of the case to another doctor. Upon this state of the record, the trial court sustained the objection to Dr. Webb’s qualification to testify as an expert and refused to permit him to answer the hypothetical question proposed by plaintiff’s counsel.

The definitive criteria in guidance of the trial court’s determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, to rest primarily on “occupational experience,’’ as stated at page 753: “The proof of that standard (the reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wig-more has classified as ‘ occupational experience — the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood. ’ (2 Wigmore on Evidence [3d ed.] § 556, p. 635.) He must have had basic educational and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the .treatment given is to be measured.” By his own testimony Dr. Webb established the questionable sufficiency of his medical background and knowledge to permit his testifying on the requisite skill and care here concerned because of (1) his lack of active practice in California within the last 25 years, and (2) his lack of occupational experience in the treatment of living patients suffering comparable brain injuries and complications resulting in pulmonary embolisms. Plaintiff cites the case of Valentin v. La Societe Francaise, 76 Cal.App.2d 1 [172 P.2d 359], where this same Dr. Webb was held qualified to testify in a malpractice ease involving death from a tetanus infection. But that was an action against a hospital for alleged negligence of its nurses in postoperative care of a patient coincident with their failure to recognize an obvious and growing case of tetanus, so that appropriate treatment could be administered without delay. In establishing Dr. Webb’s competency to testify with respect to the requisite standard of care which the hospital was bound to exercise, his qualifications were based primarily upon his familiarity with the records of the Los Angeles County Hospital in tetanus cases ■ and his extensive knowledge on the subject of proper antitetanic treatment as gleaned from current experience in that particular field. But each ease must be judged on its own facts, and it cannot be said here that the trial court abused its discretion in holding Dr. Webb unqualified on the subject under discussion. (See Moore v. Belt, supra, 34 Cal.2d 525, 531-532.)

Finally, in disposition of plaintiff’s charge of malpractice against defendant doctor, there remain two other points for consideration: (1) Plaintiff claims that the doctor was negligent in failing to give complete and proper instructions to the interns and nurses as to what symptoms should be observed and reported to him. However, there is no evidence to substantiate this charge of the doctor’s alleged inadequate supervision. The doctor testified that he was having hourly reports and observations made of the prime factors to watch in the progressing pathology of the patient, and that he relied on such recordings and notes in making his diagnosis and prescribing treatment. There was no showing that defendant doctor’s reliance on these charts was inconsistent with standard medical practice in the diagnostic and treatment field. (2) Plaintiff also contends that defendant doctor was negligent in failing to know how to operate a pulmotor in providing artificial respiration. But such machine was the property of the hospital, and the intern, as the hospital’s employee, was the person who was supposed to know how it worked. Defendant doctor admitted that he did not know how the machine functioned, but there is nothing in- the record to establish that a practicing doctor should have such knowledge as a matter of standard practice and in the exercise of the required standard of care.

As the record has been above reviewed with regard to the alleged malpractice claim against defendant doctor, it is manifest that plaintiff has failed to prove that the doctor was negligent or unskilful in his diagnosis and adoption of the conservative, nonsurgical treatment of the brain injury sustained by plaintiff’s son, or that want of skill or care on his part caused the boy’s death. Bather, the evidence establishes that the pulmonary embolism was the cause of death, and that its development was independent of anything that defendant doctor did or did not do in his treatment of plaintiff’s son. In the face of such absence of a causal connection between the death of plaintiff’s son and defendant doctor’s acts, the conclusion is inescapable that a nonsuit was properly granted as to him.

?here now remains for consideration plaintiff’s charge of negligence against the hospital. In this connection plaintiff argues that the hospital was negligent in these particulars: (1) assuring her that defendant doctor would immediately attend her son while it was known that he would not see him until some eight or nine hours later; (2) carelessness of the interns and nurses in keeping records of the boy’s condition so as to reflect accurately the progressively deteriorating pathology; and (3) failure to keep the pulmotors in proper functioning order. Without unduly extending the discussion of these claims, suffice it to say that an examination of the record does not disclose any causal connection between the alleged negligent conduct and the boy’s death from the pulmonary embolism. (Reynolds v. Struble, 128 Cal.App. 716, 725 [18 P.2d 690]; see, also, Michael v. Roberts, 91 N.H. 499 [23 A.2d 361, 362].) In regard to this phase of the ease, it must be conceded that the hospital’s failure to have its pulmotors in working order might constitute actionable negligence under some circumstances, but there is no evidence that such failure was the proximate cause of the boy’s death —that the boy would have lived if the first two pulmotors had worked — and the doctrine of res ipsa loquitur is entirely inapplicable. (65 C.J.S. § 220(8), p. 1011; Keller v. Cushman, 104 Cal.App. 186, 189 [285 P. 399]; Dunlavy v. Nead, 36 Cal.App.2d 478, 481 [97 P.2d 1003].) Hence, there was no error in granting the nonsuit in favor of defendant hospital.

The judgments are, and each of them is, affirmed.

Gibson, C. J., Shenk, J., and Edmonds, J., concurred.

Traynor, J., concurred in the judgment.