Clemens

Appellant, plaintiff in a medical malpractice action, has appealed from an adverse judgment given pursuant to a jury verdict. By reason of People v. Hutchinson, 71 Cal.2d 342 [ 78 Cal.Rptr. 196 , 455 P.2d 132 ], decided while this appeal was pending, we reverse with instructions to the trial court to hold a new hearing on appellant’s motion for a new trial.

Facts

Viewed as it must be in the light most favorable to the verdict and judgment, the record discloses the following.

In June of 1958, a tumor about the size of a marble was excised from appellant’s upper right arm by Dr. Kornblatt at Bay Cities Community Hospital. The tumor recurred higher on the arm. On August 4, 1961, when the tumor had grown to about seven by nine centimeters, it was again excised by Dr. Norcross at Gardena Hospital. Approximately three months later, the tumor reappeared, this time still further up the arm and extending into the armpit area. Dr. Norcross diagnosed the tumor as malignant. It was approximately the size of a baseball and appeared to be a fibrous tumor with strands or tentacles moving outward from the margin.

Dr. Norcross determined that his treatment of choice for the third…