Opinion

In her complaint plaintiff, Jill Chadock, seeks damages for medical malpractice from Lester Cohn, M.D. The gravamen of the action is alleged to be negligence in the care and treatment of a leg and foot injury resulting in permanent disability and disfigurement. The trial commenced before a jury and was terminated by the granting of a motion for nonsuit at the conclusion of plaintiff’s evidence. The motion for nonsuit was made on the ground that there was no showing of “negligent causation.” The failure of proof resulted from the trial court’s ruling that Nicholas Grumbine, plaintiff’s expert witness, was incompetent to testify as to the applicable standard of practice because he was a podiatrist and not a licensed medical doctor (M.D.). Plaintiff appeals from the judgment entered in favor of defendant following the granting of the motion of nonsuit.

Contention

The sole contention on appeal is that it was reversible error to sustain the objection to his testimony on the subject.

Discussion

We find the applicable law to be set forth in Brown v. Colm (1974) 11 Cal.3d 639, 642-643 [ 114 Cal.Rptr. 128 , 522 P.2d 688 ], wherein it is said: “It is settled that a doctor is required to apply that degree of skill, knowledge and care ordinarily exercised by other members of his profession under similar circumstances. (Bardessono v. Michels (1970) 3 Cal.3d 780, 788 [ 91 Cal.Rptr. 760 , 478 P.2d 480 , 45 A.L.R.3d 717 ]; Sinz v. Owens (1949) 33 Cal.2d 749, 753 [ 205 P.2d 3 , 8 A.L.R.2d 757 ].) Proof of this standard is ordinarily provided by another physician, and if a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes to the weight of his testimony rather than to its admissibility. (Seneris v. Haas (1955) 45 Cal.2d 811, 833 [ 291 P.2d 915 , 53 A.L.R.2d 124 ].)” The determination of the expert’s qualifications is ordinarily a matter addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear showing of abuse. (Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 127 [ 112 Cal.Rptr. 236 ].)

Defendant relies upon the proposition that a witness who testifies to the applicable standard as an expert must not only be a medical doctor, but must possess knowledge concerning the standard of practice of an “orthopedic surgeon.” He argues that Dr. Grumbine, a podiatrist, was not qualified as a matter of law to testify in this case. We do not agree.

The propriety of Dr. Grumbine’s testifying as an expert witness was considered at an evidentiary hearing conducted pursuant to Evidence Code section 402. The test to be applied at such a hearing is simply whether the witness possessed the “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720.) The subject is elaborated upon in the leading case of Seneris v. Haas (1955) 45 Cal.2d 811 [ 291 P.2d 915 , 53 A.L.R.2d 124 ], wherein it was said at page 833: “In Agnew v. City of Los Angeles, 97 Cal.App.2d 557, 565 [ 218 P.2d 66 ], where the court reversed a judgment because the trial court had erroneously excluded the testimony of one Dr. Andrews, it was said that ‘the court effectively denied plaintiff a fair opportunity to prove her case.’ It was there held that ‘To qualify a witness as a medical expert it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject, and (2) is familiar with the standards required of physicians under similar circumstances. (Moore v. Belt, 34 Cal.2d 525, 532 [ 212 P.2d 509 ]; Sinz v. Owens, 33 Cal.2d 749, 753 [ 205 P.2d 3 , 8 A.L.R.2d 757 ]; 32 C.J.S. 261, § 537.) Where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than its admissibility. (Cloud v. Market Street Ry. Co., 74 Cal.App.2d 92, 100 [ 168 P.2d 191 ]; 10 Cal.Jur. 963; 2 Wigmore on Evidence, 3d ed., 641; 31 C.J.S. 99-101.) The qualification of an expert is ordinarily a matter addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless a clear abuse is shown. (Sinz v. Owens, 33 Cal.2d 749, 753 [ 205 P.2d 3 , 8 A.L.R.2d 757 ]; Mirich v. Balsinger, 53 Cal.App.2d 103, 114 [ 127 P.2d 639 ].) The determinative test as to whether the trial court properly exercised its discretion is whether the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury. (Valdez v. Percy, 35 Cal.App.2d 485, 492 [ 96 P.2d 142 ]; Hutter v. Hommel, 213 Cal. 677, 681 [ 3 P.2d 554 ]; Pierce v. Paterson, 50 Cal.App.2d 486, 491 [ 123 P.2d 544 ]; Mirich v. Balsinger, 53 Cal.App.2d 103, 115, 118 [ 127 P.2d 639 ]; 32 C.J.S. 261, § 537.)’ ” Neither section 720 nor Seneris requires that the witness be a medical doctor or otherwise possess the same professional degrees or certifications held by the attending surgeon.

At the evidentiary hearing in the instant case Dr. Grumbine testified in detail with respect to the subject at hand and disclosed an inordinate background of education, knowledge, training and experience in the care and treatment of foot injuries. He testified, inter alia, as follows:

In deciding the issue, statements by the court below indicate that its ruling was based solely upon the fact that Dr. Grumbine was a podiatrist rather than a physician and surgeon. The trial court stated that in malpractice judgment cases, “The persons that testify to that are his peers; physicians and surgeons. That is the legal, substantive law in this area.” The court went on to say, “Your man doesn’t meet that standard, no matter how qualified he might be. That would be one reason to say that he couldn’t testify here.” While the court did go on to impugn the credibility of Dr. Grumbine as to his other qualifications, our reading of the entire ruling leads to the conclusion that the objection was sustained on the ground upon which it was originally made, namely that Dr. Grumbine was not a medical doctor. The ruling leads us to believe that the court was unaware of the applicable law discussed herein. To decide the issue as a matter of law was therefore an abuse of discretion. The witness’ qualifications were such as to permit the trier of fact to conclude he was familiar with the standards required of physicians with Dr. Cohn’s qualifications.

Our decision herein does not do undue violence to medical defendants’ need for protection in malpractice cases. The existence of such need was discussed in Brown v. Colm, supra, at page 646, wherein it is said: “On the other hand, if the threshold test of general testimonial qualification is found to be met and the witness is permitted to testify on direct examination, he is subject to as penetrating a cross-examination as the ingenuity and intellect of opposing counsel can devise. This inquiry may challenge not only the knowledge of the witness on the specific subject at issue, but also the reasons for his opinion and his evaluation of any written material upon which he relied in preparation for his testimony. (Evid. Code, § 721.) Further, a defendant is free to argue that the witness’ testimony is not entitled to acceptance or credibility because he lacks personal acquaintance with the subject at the time the alleged negligent act occurred, and defendant may produce his own witnesses in rebuttal. These measures are more than adequate to protect a defendant’s interests.” However, we must agree with plaintiff that: “[t]he unmistakable general trend in recent years . . . toward liberalizing the rules relating to the testimonial qualifications of medical experts” emphasized in Brown v. Colm, supra, at page 645, together with the rationale of our high court in its unanimous opinion in that case literally compels the conclusion that the trial court’s ruling in the instant case was error. (Cf. Seneris v. Haas, supra, 45 Cal.2d 811, 833 .)

This error was clearly prejudicial. The sole basis for granting the nonsuit herein was the lack of evidence in the record to establish an applicable standard of care. The evidentiary ruling discussed above deprived plaintiff of attempting to meet her burden of proof in this respect.

The judgment is reversed.

Klein, P. J., and Potter, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied November 8, 1979. Mosk, J., and Richardson, J., were of the opinion that the petition should be granted.

Specifically a triple arthrodesis and a mid-tarsal osteotomy had been performed by Dr. Cohn in 1971. The record does not indicate that defendant was in fact a board certified orthopedic specialist or for that matter a so-called “orthopedist” or “orthopedic surgeon.” He was not dignified as such in the pleadings nor are we aware wherein the details of his qualifications or practice were developed in the record. Surgical treatment of the foot by a podiatrist is authorized by Business and Professions Code section 2525.13 which provides: “The certificate to practice podiatric medicine authorizes the holder to practice podiatric medicine. As used in this chapter: “Podiatric medicine means the diagnosis, medical, surgical, mechanical, manipulative, and electrical treatment of the human foot, including the nonsurgical treatment of the muscles and tendons of the leg governing the functions of the foot. No podiatrist shall do any amputation or administer an anesthetic other than local.” As a corollary it is argued that Dr. Grumbine’s testimony did not reveal he was familiar with the standard of practice as it existed in 1968-1971. However the doctor’s testimony and the offer of proof was susceptible to the conclusion that Dr. Grumbine could not only testify as to the applicable standard of practice in the community but that another M.D. would be called to testify that the standard of practice was the same in 1968-1971 as it was in 1977. By so holding, we do not infer that this testimony establishes the existence of either negligence or proximate cause but only that it was error to refuse to admit the testimony in evidence. Its probative value remains to be determined by the trier of fact.