Opinion
Rehearing Denied June 24, 1964.
Jeremiah F. O'Neill, Jr., George W. Hauer, Robert A. Kaiser, Oakland, for appellants.
Hardin, Fletcher, Cook & Hayes, Oakland, for respondent Laurel Grove Hospital, Cyril Viadro, San Francisco, of counsel.
Peart, Baraty & Hassard, George A. Smith, San Francisco, for respondent F. M. Thornburg.
Joseph F. Rankin, Oakland, for respondent Karl J. Palmberg, M.D., Richard G. Logan, oakland, of counsel.
SALSMAN, Justice.
Reginald J. Quintal, hereafter referred to as 'Reggie', brought this action by his guardian ad litem Helen Quintal, his mother, against all respondents, alleging malpractice during eye surgery. Helen Quintal asked both general and special damages against all respondents. The jury returned its verdict for $400,000 in favor of Reggie, and for $3,610.73 in favor of Helen Quintal. The trial court granted respondents' motions for judgment notwithstanding the verdicts in appellants' favor, and also granted respondents' motions for a new trial. This appeal followed.
The record shows that on May 8, 1960 appellant Reggie Quintal was a normal, healthy six-year old boy, except that he suffered some inward deviation of the eyes. On that date he was taken to Laurel Grove Hospital, at Castro Valley, for an operation to correct his eye condition. The operation was performed by respondent Dr. Palmberg, an ophthalmologist, and was completed without incident. The operation was not wholly successful, however, since some slight inward deviation of the eyes remained. It was decided that further surgery was necessary to fully correct Reggie's eye condition and on July 10, 1960 he was again taken to Laurel Grove Hospital for an operation scheduled to take 20 Reggie sustained devastating permanent injuries as a result of his tragic experience in the operating room. He is now a mute, blind, spastic quadriplegic.
Appellants first contend that the trial court erred in granting respondents' motions for judgment notwithstanding the verdict.
A motion for judgment notwithstanding the verdict may properly be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from plaintiff's evidence, the result is a determination that there is no evidence sufficiently substantial to support the verdict. (Devens v. Goldberg, 33 Cal.2d 173, 177-178, 199 P.2d 943; Code Civ.Proc. § 629; Knight v. Contracting Engineers Co., 194 Cal.App.2d 435, 442, 15 Cal.Rptr. 194; 2 Witkin, California Procedure, pp. 1865-1866.) In passing upon such a motion the trial court is not permitted to weigh the evidence, and on appeal the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of every fact pertinent to the issues involved and which may reasonably be deduced from the evidence. (Tracey v. L. A. Paving Co., 4 Cal.App.2d 700, 704, 41 P.2d 942.) These are the rules we must apply to determine if appellants' first contention may be supported.
Dr. Thornburg and Dr. Palmberg are medical specialists. Dr. Thornburg is an American Board certified anesthesiologist, and Dr. Palmberg is an American Board certified ophthalmologist. As specialists they are held to that standard of learning and skill ordinarily possessed by specialists of good standing, practicing in the same field, in the same or a similar locality, and under the same or similar circumstances. (Scarano v. Schnoor, 158 Cal.App.2d 612, 618, 323 P.2d 178, 68 A.L.R.2d 416; Prosser, Torts, pp. 133-134; 14 Stan.L.Rev. 884, 885.) The question presented There was testimony that Reggie's cardiac arrest was caused by 'vagal stimulation', that is, stimulation of the vagus nerve, a nerve involved in the beating of the heart. Appellants contend there was testimony that, if due care was used, vagal stimulation would not occur. The testimony in the record does not support appellants' claim. It is clear from the medical testimony that cardiac arrest is a known and calculated risk of anesthesia. In statistics relating to surgery involving the use of anesthetics it is shown to occur rarely but constantly. There are many known causes of death during anesthesia, such as asphyxia, upset of the electrolyte balance of the body, cardiac disease, anomalies, and unknown and hidden idiosyncracies of the body. In Reggie's case, vagal stimulation was said to be the cause, but in turn the cause of such stimulation was unknown.
There was no direct testimony of any negligence on the part of Dr. Thornburg in the administration of the anesthetic to Reggie and there was no testimony from which the jury could reasonably infer any failure on his part to exercise due care. Dr. Stuart Cullen, president of the American Board of Anesthesiology and chairman of the Department of Anesthesiology of the University of California Medical Center, testified in effect that the administration of the anesthetic was done in a 'perfectly standard fashion', and that standard and acceptable methods had been used in management of the patient's airway during the procedure. There is nothing in the record which in any way suggests that Dr. Thornburg departed from acceptable medical standards or that his actions and conduct were not consistent with good medical care. When he discovered that Reggie had stopped breathing and there was no heart action he took the emergency measures we have previously described. His efforts were not wholly successful, and ultimately tragic and unexpected consequences ensued, but these misfortunes are not shown to be attribuable to negligent conduct on his part.
Appellants argue, however, that on facts here present, they are entitled to the benefit of the doctrine of res ipsa loquitur; that it was the duty of respondents in order to meet or balance the inference of negligence, which arises where the doctrine is applicable, to present evidence to show a satisfactory explanation for the accident, in which no negligence on their part appears, or to show such care on their part as leads to the conclusion that Reggie's cardiac arrest did not happen because of any want of care by them. The trial court, although requested, did not instruct the jury on the doctrine of res ipsa loquitur, upon the apparent belief that the facts of this case did not justify its application. Of course, appellants prevailed with the jury without the benefit of any instruction on res ipsa loquitur. The essence of their argument would seem to be that here, the very nature of the accidental event is such that the jury could infer negligence on the part of respondents, especially Dr. Thornburg, and hence the jury's verdict is properly supported.
Before the doctrine of res ipsa loquitur may be applied in a malpractice action it must be shown that (1) the accident or injury was of a kind which does not ordinarily occur in the absence of someone's negligence; (2) it was caused by an agency or instrumentality in the exclusive control of the defendants, and (3) it was not due to any voluntary action or contribution on the part of the plaintiff. (Davis v. Memorial Hospital, 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 376 P.2d 561; Seneris v. Haas, 45 Cal.2d 811, 823, 291 P.2d 915, 53 A.L.R.2d 124; Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d 34, 29 A.L.R.2d 485; Costa v. Regents of Univ. of California, 116 Cal.App.2d 445, 254 P.2d 85.) Here we are concerned only with the first condition referred to Siverson v. Weber,
Faulk v. Soberanes, Wolfsmith v. Marsh, Zentz v. Coca Cola Bottling Co.,In determining whether the probability of negligent causation exists with regard to a particular occurrence, the courts have relied upon both common knowledge and the testimony of expert witnesses. (Siverson v. Weber, supra.) It is obvious that here common knowledge cannot be relied upon to show the probability of negligent conduct on the part of Dr. Thornburg, because what was done or what should have been done in the operating room lies entirely beyond the realm of a layman's knowledge. (Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520; Dees v. Pace, 118 Cal.App.2d 284, 257 P.2d 756.) The standard of care against which Dr. Thornburg's actions must be measured is peculiarly within the knowledge of experts and can be established only by their testimony. (Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 8 A.L.R.2d 757.) As we have noted, Dr. Cullen was the principal medical expert examined at trial other than respondents, and his testimony clearly establishes that in administration of the anesthetic to Reggie, Dr. Thornburg's procedure was accomplished in 'perfectly standard fashion' and that standard and acceptable methods had been followed. No expert witness testified that when cardiac arrest occurs during anesthesia it is probably the result of negligence and no such inference may reasonably be drawn from any of the testimony.
As we have previously said, the evidence is to the effect that cardiac arrest is a known, calculated risk of anesthesia and although the incidence of the event is rare it may and does occur, despite all precautions, even where the procedure is conducted carefully and in accordance with established practice. As the Supreme Court said in Siverson v. Weber, supra, 57 Cal.2d at 839, 22 Cal.Rptr. at 339, 372 P.2d at 99: 'Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible.' Here it cannot be said that Reggie's unfortunate cardiac arrest, or any of the disastrous consequences which attended it, was more probably the result of negligence on the part of Dr. Thornburg rather than the result of some unknown cause for which he is not responsible. Under circumstances here present the doctrine does not apply and the trial court was correct is refusing to instruct the jury on this principle of law. (See generally, Rubsamen, Res Ipsa Loquitur in California Medical Malpractice Law--Expansion of a Doctrine to the Bursting Point, 14 Stan.L.Rev. 251; Rubsamen, Comment; Siverson v. Weber--A Reconsideration of Res Ipsa Loquitur in Medical Malpractice, 15 Stan.L.Rev. 77.)
Appellants do not claim that Dr. Palmberg was negligent in any way in the administration of the anesthetic by Dr. Thornburg, nor do they assert that Dr. Thornburg was the agent of Dr. Palmberg, and acting under his direction and control in the course of the operation. Appellants seek to impose liability on Dr. Palmberg only because of his failure to perform a The testimony shows that Dr. Palmberg came to the operating table immediately after Dr. Thornburg announced that Reggie's heart had stopped beating. For a period of 40 seconds to a minute Dr. Thornburg attempted external massage and gave oxygen to Reggie. When he could obtain no results by these measures he asked Dr. Palmberg to open Reggie's chest. The testimony was that only 20 to 30 seconds elapsed between the time Dr. Palmberg declined to operate and the time Dr. Beumer began his surgery. It is undisputed that in cases of cardiac arrest, time is vital, and that the passing of each moment increases the chance of failure to revive the patient, or the chance of serious injury and damage if the patient is in fact revived.
The obligations of Dr. Palmberg, an ophthalmologist confronted with a cardiac arrest, can only be shown by expert testimony. (Sinz v. Owens, supra.) Appellants quite properly made no attempt to establish the duties and obligations of Dr. Palmberg by the testimony of laymen, but relied upon the cross-examination of medical experts, and the testimony of Dr. Thornburg and Dr. Palmberg elicited pursuant to Code of Civil Procedure, § 2055. Unless this testimony is of sufficient weight to support an inference of negligence on the part of Dr. Palmberg the judgment granted in his favor notwithstanding the verdict must be affirmed.
On the issue of the standard of care required of an ophthalmologist confronted with the necessity of an emergency thoracotomy, Drs. Palmberg, Cullen and Dugan testified in effect that the standard of care required of an ophthalmologist as of July 11, 1960, that is at the time and place here concerned, did not require that an ophthalmologist such as Dr. Palmberg be able to perform an emergency thoracotomy. Dr. Cullen did testify that it is advisable for an ophthalmologist who is incapable of performing an emergency thoracotomy to do surgery only when he knows a general surgeon to be in the immediate area. Dr. Palmberg testified that he knew that a general surgeon would be in the immediate area of the operating room on the day surgery was to be performed on Reggie, and further testimony established the immediate availability of Dr. Beumer.
Appellant's further contention that an ophthalmologist such as Dr. Palmberg, who believes himself incapable of performing a thoracotomy, should have with him while engaged in the surgery of his specialty, a general surgeon capable of doing a thoracotomy in the event of emergency is without support in the evidence. The undisputed testimony was that where an operation is performed by a specialist such as Dr. Palmberg due care does not require the presence in the operating room of a general surgeon ready and available to do a thoracotomy if required.
There is nothing in the testimony of Dr. Thornburg that is essentially contrary to the testimony of Drs. Palmberg, Cullen and Dugan. Dr. Thornburg's testimony does not disclose that an ophthalmologist such as Dr. Palmberg should have been able to do a thoracotomy in this case, or that the standard of care then required an ophthalmologist to be able to do so.
We find nothing in the record to support the claim of negligence made against Dr. Palmberg and nothing from which the jury could reasonably infer negligence on his part. It follows that judgment in his behalf was properly granted. At trial it was appellants' theory that Dr. Thornburg was the agent of respondent Laurel Grove Hospital and hence that the hospital would be liable for the alleged negligent acts of Dr. Thornburg. We need not discuss the factual basis for appellants' claim that Dr. Thornburg was an agent of the hospital and acting as such when Reggie sustained his injuries. It is sufficient to say that, although some independent negligence was initially charged against the hospital, no evidence was adduced to support the charge, and appellants' case proceeded only on the theory of agency. Since there is nothing to support the charge of negligence made against Dr. Thornburg there can be no liability on the part of respondent Laurel Grove Hospital.
The judgment in favor of respondents notwithstanding the verdict in favor of appellants is affirmed.
DRAPER, P.J., and DEVINE, J., concur.