Barton

This is an appeal from the judgment for defendants in a medical malpractice case. The judgment is reversed in part and is affirmed in part.

This case involves allegedly negligent actions and omissions by the two defendant doctors in the course of their treatment of the plaintiff, between Februaiy 11 and March 19, 1972, for acute frontal sinusitis.

*490 Plaintiff alleges that, as a proximate result of these negligent actions and omissions, he suffered a brain abscess for which he had to undergo surgery for an en bloc removal of the entire anterior portion of the right frontal lobe of his brain (prefrontal lobotomy).

The alleged-to-be negligent actions and omissions of the defendants consisted for the most part of: the failure to perform a culture and sensitivity test prior to February 29, 1972; the failure to take sinus X-rays prior to February 29, 1972; the giving and prescribing of inappropriate antibiotics to the plaintiff which in turn also masked the plaintiff’s symptoms; the failure to furnish any antibiotics at all between about February 16, 1972, and February 20, 1972, and again between March 10, 1972, and fyiarch 13, 1972; and the failure to make timely usage…

I concur in the result reached by the majority. I agree that the judgment in favor of defendant Wasserman should be affirmed on the ground that the record does not establish any negligence on the part of defendant Wasserman. I agree also that the judgment in favor of defendant Owen should be reversed because of the trial court’s giving of BAJI instruction No. 6.28, relating to a patient’s duty to follow his doctor’s instructions and making a negligent failure of the patient to do so a defense to liability on the part of a doctor for malpractice. Since there was no evidence of any negligent failure of the plaintiff to follow instructions which constituted a proximate cause of plaintiff’s injury, it was prejudicial error for the trial court to give BAJI instruction No. 6.28.

Since the two matters referred to justify the majority’s affirmance of the judgment in favor of defendant Wasserman and reversal of the judgment in favor of defendant Owen, respectively, I do not reach the other contentions of appellant discussed by the majority. Because the case must be retried with resnect to defendant Owen, and we do not know what evidence will be presented on a retrial, I deem the…

KINGSLEY, Acting P.J.

This is an appeal from the judgment for defendants in a medical malpractice case. The judgment is reversed in part and is affirmed in part.

This case involves allegedly negligent actions and omissions by the two defendant doctors in the course of their treatment of the plaintiff, between February 11 and March 19, 1972, for acute frontal sinusitis.

Plaintiff alleges that, as a proximate result of these negligent actions and omissions, he suffered a brain abscess for which he had to undergo surgery for an en bloc removal of the entire anterior portion of the right frontal lobe of his brain (prefrontal lobotomy).

The alleged-to-be negligent actions and omissions of the defendants consisted for the most part of: the failure to perform a culture and sensitivity test prior to February 29, 1972; the failure to take sinus X-rays prior to February 29, 1972; the giving and prescribing of inappropriate antibiotics to the plaintiff which in turn also masked the plaintiff's symptoms; the failure to furnish any antibiotics at all between about February 16, 1972, and February 20, 1972, and again between March 10, 1972, and March 13, 1972; and the failure to…