Opinion
Rehearing Denied April 5, 1966.
For Opinion on Hearing, see 58 Cal.Rptr. 125, 426 P.2d 525. Hanna & Brophy, by Donald Brophy, Sacramento, for appellant Selmants.
Peart, Baraty & Hassard, San Francisco, Wilke, Fleury & Sapunor, Sacramento, Richard G. Logan, Oakland, John Sapunor, Sacramento, and Robert Huber, San Francisco, for appellants Gibbons and Horn. Jack H. Werchieck, San Francisco, for respondent.
PIERCE, Presiding Justice.
In this medical malpractice action the jury returned a plaintiff's verdict of $27,500 against the defendant anesthesiologist, Dr. Selmants, the defendant orthopedic surgeon, Dr. Gibbons, and his partner, Dr. Horn. (The verdict was in favor of defendant hospital.) The appeals of the doctors from the judgment followed the trial court's denial of a motion for a new trial. Defendants' assignments of error are (1) the giving by the trial court of the "conditional" res ipsa loquitur instructions (BAJI 214-X, 214-W, 206 (rev.)); (2) lack of substantial evidence absent res ipsa loquitur for the case to go to the jury.
There was no evidence in the record having any relation to the question of the applicability of the res ipsa loquitur except the expert testimony of the doctors. We have concluded, after reading all of that testimony, that neither the evidence itself nor any inference a lay jury could draw therefrom permitted a finding that the injury which occurred here (a painful arthritic ankle) was the result of the negligence of any of the defendants. Explanation of this conclusions will necessitate hereinafter a detailed discussion of the facts. Preliminarily, however, a skeletal statement will suffice to set up the principles of law involved.
On Sunday, October 30, 1960, at approximately 2 p.m., plaintiff, Eunice Clark, 41 years old, obese (height 5 feet 3 inches, weight 189 pounds) but otherwise in good health, slipped and fell on a waxed floor in her home and suffered a fractured right ankle. She was taken to the Sutter General Hospital, seen and examined by her family physician, Dr. Clarence Smith; X-rays were taken; and plaintiff learned from Dr. Smith that it was a case for an orthopedic surgeon. She asked for defendant Dr. Harold Gibbons who had previously treated her husband. Dr. Gibbons happened to be in the hospital. He examined Plaintiff was taken into surgery. Dr. Selmants who had served as anesthesiologist with Dr. Gibbons before on this type of case started to apply the anesthesia. He used the identical agent of anesthesia, in the same amount and followed the identical procedures which he and the other anesthesiologists practicing in the community customarily use for this surgery. (Detailed discussion of this will follow.) Standard tests were repeated which proved that the desired depth and level of anesthesia had in fact been achieved.
When "surgical anesthesia" had been accomplished, the "prepping" of the patient for surgery was done by Dr. Gibbons. He was assisted by Dr. Smith. The surgery accomplished included the closed reduction of the dislocation of the tibia, followed by incision for open reduction of the rest of the fractures. All of the work of open reduction was finished except the completion of the reduction of the posterior fragment of the tibia. At this point surgical anesthesia, designed to last throughout the entire period of surgery, commenced to wear off. Dr. Selmants suggested the medical reason for this rare occurrence--an unpredictable idiosyncrasy of the patient. (See footnotes 2 and 3 infra.) We will discuss below how the anesthesia could have been extended or renewed, how the surgeon had to make a medical judgment, weighing the advantages of authorizing this against the risks involved. Dr. Gibbons elected to and did discontinue surgery, plaintiff's incision was sutured and her leg was put in a cast. There is no medical evidence that this was an improper judgment. A series of events thereafter, as to none of which malpractice is even contended to be a factor, prevented a second open reduction of the ankle. Plaintiff has a painful angle, suffers from osteoarthritis. Part of the time she wears a brace and uses a cane.
Starting with Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436 (see 14 Stan.L.Rev. 251, 254) the doctrine of res ipsa loquitur in California medical malpractice law has evolved through a progression of cases, including Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258; Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124; Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372 P.2d 97; Davis v. Memorial Hospital, 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561; and Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 41 Cal.Rptr. 577, 397 P.2d 161. In Siverson v. Weber, supra, it was defined (57 Cal.2d on p. 836, 22 Cal.Rtpr. on p. 337, 372 P.2d on p. 97): "[R]es ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible. [Citations.]"
Supplementary rules are discussed by this court (per Justice Friedman) in Inouye v. Quintal v. Laurel Grove Hospital,
It is also stated in Inouye, supra (on p. 39, 47 Cal.Rptr. on p. 315): "To determine whether there is a reasonable probability of negligence causation, the courts rely on 'the light of past experience,' which in turn may be drawn from expert testimony or common knowledge. The more esoteric kinds of medical causation demand expert testimony; others are within the reach of lay experience. (Compare Davis v. Memorial Hospital, supra, 58 Cal.2d at pp. 817-818 [26 Cal.Rptr. 633, 376 P.2d 561], and Siverson v. Weber, 57 Cal.2d 834, 837, 22 Cal.Rptr. 337, 372 P.2d 97.)"
In the instant case we have only expert testimony and, principally, it was that of the three medical defendants themselves. In some cases medical testimony may be such that a lay jury can properly draw inferences of a probability of negligence therefrom. (Quintal v. Laurel Grove Hospital, supra.) Plaintiff's counsel (at oral argument) argued that in the case at bench he has produced evidence which permitted the jury to draw inferences of probable negligence by asking questions of the doctors on cross-examination as to the standard of medical practice required in this community as regards the several matters relevant to the inquiry and by thereafter showing deviations from the practice by these defendants. In our search to discover such evidence we have not only read the transcript references to which counsel direct us, we have combed the entire record and we can find no supporting proof of this.
"Each case,. of course, must be determined on its own facts." (Quintal v. Laurel Grove Hospital, supra, 62 Cal.2d 154, 165, 41 Cal.Rptr. 577, 584, 397 P.2d 161, 168.) For that reason we set forth in detail the evidence relevant to the activities of Dr. Selmants and Dr. Gibbons. They were separate in nature and therefore we discuss them separately.
In stating this evidence, we, of course, adhere to the settled rule that the power of an appellate court begins and ends with a determination of whether substantial evidence exists, recognizing that all reasonable intendments must be resolved in favor of the prevailing party. Here, however, when the evidence is read in context we have found no substantial conflicts.
RE: THE ASSERTED LIABILITY OF DR. SELMANTS.
The preliminary steps taken by Dr. Selmants have been described above. At the outset it should be noted that since the evidence is that either general or spinal anesthesia may be employed for the type of surgery contemplated, with no evidence that one is preferred to the other, no inference of negligence can be drawn from the fact that the decision was made to use spinal anesthesia. In addition, however, plaintiff had eaten food within an hour before the fracture-producing fall and had possibly suffered a neurogenic shock as a result of which the digestive process had either been arrested or retarded. She was therefore not a proper candidate for a general anesthetic. The reason is that the presence of undigested food in the stomach would if a "general" were used place the patient's life in jeopardy since aspiration during the period of such anesthesia cannot always be controlled.
The anesthesiologist described in detail what was done when the patient was taken into surgery. Her back was sterilized. She was, as in usual in this type of surgery, raised to a sitting position. Two syringes,
The level of anesthesia sought in this case was T-10. Proof that it had actually been reached was made by pin prick and pin scratch tests with the patient. These tests were repeated three times. In this manner a stage was reached known as "surgical anesthesia." The doctor testified that the techniques and anesthetizing agent used and the dosages given were all in accordance with the standard practice by anesthesiologists of the community for this type of surgery. There was no contrary testimony.
The doctor also testified that usually the duration of surgical anesthesia with the dosage of 10 milligrams of Pontocaine given here will be from 2 1/2 to 3 hours after surgical anesthesia has been achieved. Dr. Selmants had served as anesthesiologist for Dr. Gibbons before when the latter was performing the same type of surgery and knew his habits, degree of celerity and manner of operation and the usual time required. (Dr. Gibbons confirmed this.)
When surgical anesthesia had been achieved in this case, the prepping of the patient for surgery commenced. The first act of the surgeon was a closed reduction to be described below. The first incision was then made and open reduction was commenced. After approximately 55 minutes or one hour of surgical anesthesia, a first warning occurred that the patient was experiencing an "unconscious" awareness of pain--unconscious because the plaintiff was then and had been asleep during all of the events after surgical anesthesia had been induced. (She had evidenced some anxiety during the administering of anesthesia and had been given Vistaril and 100 milligrams of Nembutal. These drugs, plus the premedication, had induced what was described as a "gentle sleep.")
The warnings that the spinal anesthesia was wearing off were moaning by the patient in her sleep and slight movements of her leg.
It is common knowledge among anesthesiologists that spinal anesthesia may wear off before the expected time. It is rare but it does occur. There is a medical explanation for this and Dr. Selmants stated it accounted for the happening in this case. He testified that immediately upon the injection of any spinal anesthetizing agent a process of detoxification commences within the area of nerve root blockage which ultimately
"Q. Now, is there any risk inherent in the giving of a spinal anesthesia to the extent that it is a risk that it will not produce the contemplated or predictable surgical anesthesia time desired? Yes or no. Can you answer that? A. Yes. Q. Is this an event that is common, or in what category would you place it? A. Well, I believe it's rare, but it does occur. Q. Is this common knowledge in the field of anesthesiology? A. Yes. * * * Q. And can this occur where the standard of care throughout the entire technique is practices by men of your--of skill and learning utilizing all of the procedures? Can it still occur? A. Yes, it can still occur."
When the anesthesia commenced to wear off the fact was noted by both Dr. Selmants and Dr. Gibbons. Dr. Gibbons had further work of reduction to perform. This will be described below. The anesthesiologist was prepared for the unexpected occurrence. From his standpoint the anesthesia could either have been extended or renewed without harm to the patient. It could have been extended for a limited time by an intravenous injection of Demerol. But there would have been a question as to what "we would gain in surgical anesthesia, and would we gain enough to make it worth while." Dr. Selmants could also have given the patient another complete spinal anesthesia. The reason these courses were not elected by the surgeon will also be discussed below.
The decision was made by Dr. Gibbons to terminate the open reduction, close the incision and apply a cast. This was done.
The foregoing summary of Dr. Selmants' participation in this case leaves us without a single fact upon which this court of laymen (as regards the medical profession) can say that a jury of laymen could possible find or draw a reasonable inference "in the light of past experience" that the defendant anesthesiologist was probably guilty of negligence. On the contrary, the evidence shows that he had administered and maintained the properly selected anesthesia in precise accordance with the standards of practice of anesthesiologists of this community. An unexpected result occurred. It was explained medically and the explanation does not show or permit an inference of negligence. The happening was rare; but rarity alone is not enough.
In Siverson v. Weber, supra, 57 Cal.2d 834, at page 839, 22 Cal.Rptr. 337, at page 339, 372 P.2d 97, at page 99, chief Justice Gibson states: "The fact that a particular injury suffered by a patient as the result of an operation is something that rarely occurs does not in itself prove that the injury was probably caused by the negligence of those in charge of the operation. [Citations.]"
On cross-examination plaintiff's counsel elicited the following from Dr. Selmants: "Q. [I]f proper care is used, in the usual course of events, anesthetics like this don't run out or wear out, do they--surgical anesthetics? A. No, sir."
Plaintiff argues this justifies the giving of the "res ipsa" instruction.
The doctor, however, explained his answer: "THE WITNESS: * * * I said 'no sir.' What I mean is, they can. There is no control. There is--there is--there is a variable, as anything else we do in medicine. There is nothing exact that guarantees this will happen, this will not happen, how long this will last. You cannot ever predicate what you're doing on the basis that it's going to be 100 per cent; you have a certain area of predictability, and that's what you go on." The doctor's fuller explanation of the cause of this unpredicted event has been stated above.
Moreover, even without such explanation, the doctor's statement that "if proper care is used," spinal anesthetic does not usually wear off prematurely does not equate with a statement that if a spinal anesthesia does prematurely wear off it is probably because of improper care. This is fallacious reasoning; post hoc, ergo propter hoc. The particular question asked in the instant case has even a tinge of "have you stopped beating your wife?" to it. An anesthesiologist could scarcely to expected to answer the question affirmatively. It would be like asking any attorney: "If you properly prepare and try your cases do you usually lose them?"
Since it may be assumed that anesthesiologists are usually careful, counsel's question called for more more than an answer that the premature wearing off of a spinal anesthesia is a rarity. That, as we have seen, does not make out a case of "conditional" res ipsa loquitur. We note the following from the concurring opinion of Chief Justice Traynor in Quintal v. Laurel Grove Hospital, supra, 62 Cal.2d 154, at page 171, 41 Cal.Rptr. 577, at page 587, 397 P.2d 161, at page 171: " * * * Plaintiffs rely on testimony of both defendant doctors that, when due care is used, cardiac arrests do not ordinarily occur. This testimony, however, fails to establish anything with respect to the question whether, among the possible causes, negligence is the more probable one when these arrests do occur. It is true that cardiac arrests do not ordinarily occur when due care is used because, as all the testimony makes clear, a cardiac arrest is a rare occurrence."
RE: THE ASSERTED LIABILITY OF DR. GIBBONS.
The grounds of the captioned contention of plaintiff are (1) that Dr. Gibbons as "captain" of the surgical team is responsible for the acts of the anesthesiologist, and (2) that the surgeon was inferably negligent is not directing a renewal of the anesthesia and continuing with the open reduction. The ground first stated has already been answered: the anesthesiologist was not negligent. The negative answer to the second claim will become clearer after a more detailed discussion of the background upon which Dr. Gibbons' decision to terminate his surgery was predicted.
Before seeing plaintiff, Dr. Gibbons had read the X-rays previously taken. They showed "a severe type of trimalleolar fracture [of the right ankle] with a large posterior fragment that was displaced upward and backward, and that the foot was dislocated backward." He "believed that this type of fracture would probably require open reduction and internal fixation by some kind of threaded pins or screws." The doctor testified: "I have not seen very many trimalleolar fractures that were more severe than this."
The malleolus, by definition, is the hammer-shaped bony process on each side of the ankle. The trimalleolar fracture in this case involved two fractures of the large bone of the lower leg, the tibia, and one fracture of the smaller bone, the fibula. The fibula had a long, oblique, almost spiral fracture. One of the tibial fractures was of the medial malleolus in an oblique plane. The other tibial fracture, the posterior one, involved the weight-bearing articular surface, and for that reason was the most serious from the standpoint of treatment. It consisted of a large triangular fragment with its apex upward, comprising approximately a third of the articular surface. Its displacement mentioned above was a half-inch backward and three-eighths of a inch upward (in respect the unfractured part of the articular surface).
A fracture of this kind is normally reduced in one stage. There are, however, many situations when the reduction will be a two-stage procedure.
On October 30, after surgical anesthesia had been reached and the prepping completed, Dr. Gibbons reset the dislocation of When warning of the wearing off of the anesthesia occurred, Dr. Gibbons had extended the incision and had started to enter the area to complete the reduction of the posterior fragment. Approximately another hour of surgery remained to complete the reduction.
The doctor explained why in the exercise of his medical judgment he had decided to terminate surgery rather than continue under renewed anesthesia: (1)The remaining (upward) dislocation of the posterior fragment had already been brought into very close apposition. By the molding of a cast to create pressures the doctor had in the past sometimes succeeded in getting a satisfactory closed reduction. This was an accepted orthopedic maneuver. (2)If this was not successful a second stage of the open reduction would be performed. (3)The patient was moving her leg and was about to contaminate the wound. She would have had to be turned for the administration of another "spinal." (The giving of a general anesthesia would not have been safe.) The process of turning the patient "would undo all the prepping and draping." There was a danger of infection, the consequences of which would have been very serious to the patient.
The doctor having made his decision, the surgical process was terminated, the would was sutured (sufficient surgical anesthesia remained for this), a cast was applied and the patient was returned to her room.
Two unfortunate events occurred to prevent the fulfillment of Dr. Gibbons' expectations. First, an X-ray taken on October 31 showed that the posterior fragment had slipped to some extent--had not maintained its "relatively good reduction' it had displaced" Secondly, on November 10, after a cast had been removed, it was discovered that the patient's skin had "blebbed," i.e., blistered. This left a condition of rawness, a harboring place for surface bacteria. While that condition lasted another open reduction of the fracture was impossible due to the probability of infection of the bone and ankle joint. The blebbing persisted, necessitating further delays. By the time that condition passed the period and expired when further open reduction could be done. The medical testimony was that none of these were occurrences which Dr. Gibbons should have anticipated or could have rectified. We do not understand there is any contention to the contrary. If there is, it finds no support in the record.
Dr. Gibbons and Dr. Horn continued to care for the plaintiff. She was also examined by other physicians. She was sent by the defendant doctors to, and examined at, University of California Hospital in San Francisco. X-rays taken there in the summer of 1961 show the fracture had healed. The interpretation of the X-rays in the record, however, includes this statement: " * * * The ankle mortise is compromised with irregular narrowing as well as areas of increased sclerosis of adjoining bony margins as well as degenerative changes. These findings are consistent with traumatic arthritis post injury. Some spotty demineralization of the visualized tarsel bones is observed.
"IMPRESSION: Post-operative status trimalleolar fracture right ankle with associated
There was considerable testimony as to the desirability of the performance of a fusion. (Plaintiff has not elected to have one performed.) No purpose will be served by relating this testimony since it sheds no light on the liability of Dr. Gibbons.
We have labored to include a somewhat detailed (but not exhaustive) account of the evidence with reference to the transactions involving Dr. Gibbons because we think it illustrates the inapplicability of res ipsa loquitur to him as graphically as did the evidence relevant to the acts of Dr. Selmants. This is simply not a case where a jury, contrary to the medical facts and opinions stated, could draw an inference of negligence as regards either of these defendants.
It is not a case like Quintal v. Laurel Grove Hospital, supra, 62 Cal.2d 154, 41 Cal.Rptr. 577, 397 P.2d 161, a cardiac arrest case, where under no emergency a badly agitated patient with a possible temperature and infection had been given a general anesthesia and where there was evidence of erasures on hospital records, plus testimony that 90 per cent of deaths occurring under anesthesia were due to improper management of the "airways." Neither is it a case like Davis v. Memorial Hospital, supra, 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561, a fistula case, where there was evidence by the patient of a scratching sensation during the administering of an enema and there was medical evidence that 90 per cent of injuries of the type suffered were the result of the giving of enemas. Nor is it a case similar to Seneris v. Haas, supra, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124, where a paralysis of the leg occurred after the giving of a spinal anesthesia, and there was medical evidence of spinal cord damage, pointing to the probability that the anesthetizing agent had been injected at the wrong point.
On the contrary, the facts of the case at bench seem to be more analogous to those in Siverson v. Weber, supra, 57 Cal.2d 834, 837, 22 Cal.Rptr. 337, 372 P.2d 97, a hysterectomy case, where the medical experts testified that the fistula suffered was an inherent risk of all hysterectomies, although rare. In fact, the circumstances of the instant As a part of the standard instruction on "conditional" res ipsa loquitur this jury was directed (if it found plaintiff's injury was proximately caused by the "operation," "anesthesiology" or "treatment" by defendants Gibbons and Selmants) to answer the question, "Is it the kind of injury which ordinarily does not occur in the absence of negligence?" The jury was told that the answer to this question had to be "determined from the evidence presented in this trial by physicians and surgeons called as expert witnesses." As has been shown above, that evidence could not possibly permit an affirmative answer, and the affirmative answer given was pure speculation based upon conjecture.
The fact that situations do arise (as in Quintal and Seneris) where, notwithstanding that all of the evidence is medical, a lay jury can reasonably draw inferences of negligence must not cause the doctrine of "conditional" res ipsa loquitur to become an open sesame, resulting in a rule of absolute liability whenever injury follows services of physicians and surgeons. Certain general principles of law are still fixed and well settled. Doctors are still fixed and well settled. Doctors are still not liable for every untoward result which may occur in medical practice. The law demands that doctors have, and exercise, the degree of skill and learning ordinarily possessed and exercised by practitioners in the community. (Huffman v. Lindquist, 37 Cal.2d 465, 473, 234 P.2d 34, 29 A.L.R.2d 485.)
It is stated in the Siverson case, supra, 57 Cal.2d at page 839, 22 Cal.Rptr. at page 339, 372 P.2d at page 99: "To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession and might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used." That statement is equally applicable here. (See also Rubsamen, Res Ipsa Loquitur in California Medical Malpractice Law (1962) 14 Stan.L.Rev.282.)
It seems too clear to justify discussion that without the interference of res ipsa loquitur there is no evidence to support a verdict for plaintiff.
The judgment therefore is reversed and the trial court is directed to enter judgment against plaintiff and in favor of appellants.
FRIEDMAN and REGAN, JJ., concur.
He explained that in the fall which had caused this fracture the chances were very great that the articular cartilage on the posterior fracture had taken "a tremendous force on it," producing a hard "wiping" effect which the doctor described as a "very forcible rubbing" of articular cartilage of the talus against articular cartilage of the tibia and particularly the posterior fragment. This would be productive of a necrosis of the cartilage later and result in arthritis. Dr. Harvey H. Perman, an orthopedist, examined plaintiff on January 13, 1964. He was a defense witness. After his examination of the patient, obtaining her history and examining the X-rays, he expressed his opinion: that the original fracture was the cause of her arthritis. He testified: "A. The fracture was quite severe initially, and I think it's common knowledge to any orthopedist that treats these that a very high percentage of these undergo traumatic arthritis."