Opinion
Page __
__ Cal.App.2d __ 281 P.2d 278 Jessie SENERIS and Jesus Seneris, husband and wife, Plaintiffs and Appellants, v. Dr. George S. HAAS, Dr. James S. West, and Methodist Hospital of Southern California, a corporation, Defendants and Respondents. Civ. 20219. California Court of Appeals, Second District, First Division March 21, 1955Opinion vacated 291 P.2d 915.
Hearing Granted May 18, 1955.
[281 P.2d 280] Pollock & Pollock, Edward I. Pollock, David Pollock and William Jerome Pollack, Los Angeles, for appellants.
DeForrest Home, Los Angeles, for Dr. West.
Hunter & Liljestrom, Los Angeles, for Dr. Haas.
Reed & Kirtland and Henry E. Kappler, Los Angeles, for Methodist Hospital.
DRAPEAU, Justice.
Plaintiff Jessie Seneris, aged 37 years, entered the Methodist Hospital in the early morning hours of March 22, 1951, as a routine obstetrical case. She was in good health and the mother of four children. About nineteen hours after her admission to the hospital, she was taken to the delivery room. A few whiffs of ether were administered. And she was given a spinal anesthetic by defendant James Spencer West Doctor of medicine and a specialist in anesthesiology. The birth of the child followed spontaneously within a few minutes. Dr. George Shepherd Haas was the delivering obstetrician.
On the following morning (March 23rd), plaintiff complained of pain in both legs and difficulty in moving them. In her own words: 'I was paralyzed from my waist down. I couldn't move my legs.' She had pain in her back, neck and head; also in her arms and wrists. Before the end of that day, she could move the toes of her right foot. She could not move her left leg.
On the second day she was suffering backache, headache, her wrists hurt and she had pain in her right leg and heel, and pain in her left hip. By the 26th of March she could flex her right leg and walk on the right foot. She tried to use her left foot but had no control over it.
She left the hospital for her home on the 27th. Within two or three months thereafter, she regained the use of her right leg. In the meanwhile, Dr. John B. Armstrong examined her and she returned to the Methodist Hospital. There she was X-rayed, had a back brace fitted to her torso and was given crutches. Later a leg brace was prescribed, which she started to wear on May 26th. At the time of trial, she still had pain in her left hip. However, she was able to bear some weight on her bent left ankle, and could get around much better.
The instant action for damages for malpractice directed against the obstetrician, the anesthetist and the hospital followed.
The case was tried on the following theories of liability:
1. Dr. West for negligence in administering the spinal anesthetic;
2. Dr. Haas for knowingly permitting Dr. West to so administer it;
3. The hospital on the doctrine of respondeat superior;
4. All three defendants under the doctrine of res ipsa loquitur; as joint venturers, [281 P.2d 281] and for failure to call in a neurosurgeon and to arrange for a laminectomy.
At the conclusion of plaintiffs' case, the trial court granted the motions of defendants Haas and West for nonsuit, and also granted the motion of defendant Methodist Hospital for a judgment of nonsuit.
From the orders and judgment of nonsuit which followed, plaintiffs appeal.
Appellants here assert that it was circumstantially established by the evidence that Mrs. Seneris' spinal cord was injured; that such injury occurred in connection with the administration of the spinal anesthetic, and was the proximate causes of her paralysis.
In support of this contention, appellants rely strongly on a statement appearing in the hospital records as of April 20, 1951, after Mrs. Seneris had been admitted to the hospital for the second time. This statement made by consultant Dr. Nathan E. Carl, a neurologist, follows:
'The patient's subjective complaints are seemingly warranted on the basis of postive neurological findings. There is sensory loss, motor weakness, and reflex changes in the left leg, indicating cord damage on the left in the lumber region. Patient's responses are constant and are not indicative of functional disorder.' (Emphasis added.)
These few lines taken from the hospital record do not purport to state what caused the indicated cord damage. It could as well have been caused by something in the patient's physical or chemical make-up, as from the negligent insertion of the anesthetic needle. The statement is clearly insufficient to raise an inference that the damage was connected in any way with the spinal anesthetic.
Respondent James S. West was examined exhaustively by appellants' counsel under section 2055, Code of Civil Procedure. This witness testified that he had specialized in anesthesiology for ten years and had been practicing in that field at the Methodist Hospital for five years. All told he had given four or five thousand spinal punctures.
He stated that a group of doctors, who limit their medical practice to anesthesia alone, have an 'on call arrangement at the hospital. It is a voluntary coverage as far as the hospital is concerned, maintained for the benefit of patients requiring such service. In obstetrical cases the delivering obstetrician is free to call on one of this group or any other doctor he pleases to give an anesthetic.
On the day in question, Dr. West was on first call at the hospital and was available for anesthesia for a period of twenty-four hours. He was called by a nurse to give a spinal to Mrs. Seneris. He met Dr. Haas, the delivering obstetrician, in the delivery room shortly after nine o'clock in the evening of March 22, 1951. He had just completed the spinal.
In the course of his examination, Dr. West made a sketch representing the lower portion of a spinal column and the spinal cord in cross-section. This showed the 11th and 12th thoracic and the five lumbar vertebrae. He testified that the spinal cord extends downward from the head or brain through the 11th and 12th thoracic vertebrae and usually terminates at the lower border of the first lumbar vertebra.
He stated that a needle inserted into the space between the 12th thoracic and the first lumbar vertebrae was in danger of coming into contact with the spinal cord. Therefore, he tried to stay below the first lumbar vertebra when inserting his anesthetic needle in the spinal canal to avoid striking the cord or a nerve. He also stated that good medical practice does not demand that the needle be inserted at any certain space, but as a matter of safety and convenience he would choose the lumbar area. He explained that a low saddle block is the type of anesthesia usually given in obstetrical cases. That term roughly describes the area of a patient that would contact a saddle. That type of anesthesia is usually done through lumbars four and five. First, for convenience, because the space between these vertebrae is one of the large openings in the spinal column, and it is usually easy to insert the needle in this space. Second, for safety, because at that level it is exteremely unlikely that the needle would strike the spinal cord. Dr. West unequivocally testified that he inserted his anesthetic [281 P.2d 282] needle in Mrs. Seneris' spine at the interspace between the fourth and fifth lumbar vertebrae. Also that he used the standard accepted kind and amount of anesthetic normally used in obstetrical cases, and that there was no contraindication to the use of a spinal in this case.
Because he knew this was going to be a premature birth, he then connected Mrs. Seneris to an oxygen machine. He observed her for about forty minutes and was present when her child was born.
He saw her the following morning when she complained of pain in both legs and difficulty in moving them. He examined her as she was lying flat on her back. 'I asked her to move her left leg, and she flexed her leg on the thigh and also bent her knee. That is, she brought her heel toward her pelvis.' The motion was somewhat limited but she was able to move it. She could also move the right leg but to a lesser degree owing to greater pain in that area. He also found some sensory anesthesia on both of her lower extremities, i. e., dullness to skin prick. He found a normal sensory response beginning at the inguinal ligaments where the legs join the torso. The witness was asked: 'And where a person has a paralysis, a motor weakness or a sensory impairment such as you found with Mrs. Seneris, is a laminectomy indicated?' to which he replied: 'On the basis of my knowledge at that time, no.'
A laminectomy is the removal of bone in the spinal column in order that the spinal cord can be examined under direct vision.
At the start of cross-examination by his own counsel, respondent West was asked: 'Doctor, after this some two days on the witness stand, nobody has yet asked you, do you now have an opinion as to the cause of this woman's condition?' Dr. West replied: 'My opinion is that the cause of this condition is a combination of two things, an unusual or altered reaction to the drugs she received--Q. The anesthetic, you mean? A. The anesthetic drugs that she received, plus a factor of functional overlay, psychic overlay. Q. So that, Doctor, tell us whether it is or is not true that in a certain small percentage of cases you do find a person who is sensitive to spinal anesthesia? * * * A. Yes. * * * Q. Does that happen, Doctor, in this small percentage of cases entirely without regard to any negligence on the part of the doctor? A. Yes. Q. Now, Doctor, one other question toward the last of this examination: You said in this case you did not consider or recommend the doing of a laminectomy. Will you explain that answer to us, please?
'A. Well, it was my feeling that, in view of the condition as it developed, there was no indication of any cord damage being present in this patient; that in the absence of cord damage, there would be no indication at all for doing a laminectomy.'
He further stated that he had a definite opinion that there was no cord damage in this case. In arriving at this conclusion, he explained that he took into consideration, among others, the following factors:
The lower portion of the spinal column is filled with nerve trunks and nerve roots that have their origin in the spinal cord. These come out at various levels to supply the lower extremities. A nerve or nerve root which has left the cord has the ability to regenerate itself if injured. The tissue in the spinal cord does not have that ability. If that tissue is damaged it cannot regenerate. And a paralysis caused by such damage is permanent. The fact that Mrs. Seneris' condition improved is positive evidence that the cord could not have been involved; that it must have been a nerve and that there had been regeneration.
He stated that the first indication he had that this could not be cord damage but was probably nerve root damage, was the fact that the patient could move her legs. With cord damage this would not be possible. In addition, the patient complained of pain. In cord damage there is a total loss of sensation, and she would have been unable to feel any pain.
Based upon his own knowledge, the patient's history and the findings made on her second admission to the hospital, Dr. West gave as his final opinion that Mrs. Seneris' condition was due to an altered reaction or a sensitivity to the anesthetic drug.
[281 P.2d 283] In addition there was also a contributing factor of functional or psychic overlay. This latter was based on his consultations with Dr. Haas regarding 'a tremendous emotional problem present in this (the patient's) household.'
Defendant Dr. George Shepherd Haas was also examined under section 2055, Code of Civ.Proc. He testified that because Mrs. Seneris' history showed that she had had bilateral phlebitis of both legs with a previous pregnancy which was also complicated by eclampsia, he consulted with the chief anesthetist at the hospital regarding the type of anesthesia which should be used. As a result of such consultation, it was decided that a spinal anesthesia was especially indicated. She had had a spinal previously without ill effects.
This witness did not enter the delivery room until after the spinal anesthetic had been given by Dr. West.
Appellants' own doctor, John B. Armstrong, testified that he first met Mrs. Seneris at his office on April 17, 1951. Upon examination he found 'there was essentially normal orthopedic status of her trunk and arms and right lower extremity, but she had some loss of sensation and functional ability, or motor strength, in her left leg. Also, pain in her low back.' At his suggestion she reentered the Methodist Hospital for observation and rest.
On direct examination he was asked: 'Now, from the history that you got and from your various examinations, were you able to form an opinion as to what the cause of this woman's difficulty is?' He answered: 'I really don't know the answer to that.'
On cross-examination, he testified that he had numerous consultations with other doctors regarding appellant's condition. He included their reports and impressions in his diagnosis and opinion because they were neurologists and neurosurgeons. One of his consultants found that there was a functional overlay in appellant's case. With this, Dr. Armstrong agreed. He then described a functional overlay in general as an exaggerated response from the normal that could be expected from certain stimulus, substantially the same as a neurosis.
In Huffman v. Lindquist, 37 Cal.2d 465, 473, 234 P.2d 34, 39, 29 A.L.R.2d 485, a malpractice case in which judgments of nonsuit were affirmed, our Supreme Court laid down the general principles to be noted in this type of case: 'The 'law has never held a physician or surgeon liable for every untoward result which may occur in medical practice' (Engelking v. Carlson, 13 Cal.2d 216, 220, 88 P.2d 695, 997; Lashley v. Koerber, supra, 26 Cal.2d 83, 88-89, 156 P.2d 441, 444) but it 'demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient.' Lawless v. Calaway, supra, 24 Cal.2d 81, 86, 147 P.2d 604, 606. No different or 'higher degree of resonsibility' is imposed 'in making a diagnosis than in prescribing treatment.' Patterson v. Marcus, 203 Cal. 550, 552, 265 P. 222, 223; see, also, Ries v. Reinard, 47 Cal.App.2d 116, 119, 117 P.2d 386. A doctor's failure to possess or exercise the requisite learning or skill 'in a particular case is generally a question for experts and can be established only by their testimony' (Trindle v. Wheeler, 23 Cal.2d 330, 333, 143 P.2d 932; also Church v. Bloch, 80 Cal.App.2d 542, 547, 182 P.2d 241), which 'expert evidence is conclusive' where it appears that the 'matter in issue is one within the knowledge of experts only and is not within the common knowledge of laymen.' Engelking v. Carlson, supra, 13 Cal.2d 216, 221, 88 P.2d 695, 697. Application of these principles in this case sustains defendant doctor's position that plaintiff's charge of malpractice is not supported by the record.'
And as stated in Ayers v. Parry, 3 Cir., 192 F.2d 181, 185, a case decided by the U. S. Cir. Court of Appeals, involving application of New Jersey law:
'We think it is beyond dispute that the nerve roots which were damaged in the process of producing anesthesia by injecting the drug into the spinal column are within the region of treatment and that the [281 P.2d 284] cause of this injury to the nerve roots and its effect on the leg and adjacent organs must be explained by experts. When the expert testimony offered by the plaintiff ascribes the cause to the toxic quality of the injected drug as distinguished from the negligence of the anesthetist, that evidence is binding upon the court and the jury would not be permitted to speculate to the contrary.'
Likewise here. Defendant West met the qualifications required of an expert. His testimony established that the spinal anesthetic was administered in accord with accepted medical standards in the community. Moreover, believing that the damage here was to the nerve roots and not to the spinal cord, his diagnosis that a laminectomy was not indicated was also in accord with good medical practice.
Negligence on the part of a physician or surgeon will not be presumed; it must be affirmatively proved. Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695.
The record before this court fails to disclose any evidence tending to establish negligence on the part of either Dr. West or Dr. Haas in their care or treatment of Mrs. Seneris.
Both of these doctors were members of the medical staff of defendant hospital, a separate, independent organization composed solely and exclusively of doctors. There is no evidence that the Methodist Hospital attempted to direct or control the activities of either Dr. West or Dr. Haas in such manner as would justify the application of the doctrine of respondeat superior.
It further appears that the doctrine of res ipsa loquitur may not be invoked by appellants.
As stated by our Supreme Court in Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695, 698: 'It is true that in a restricted class of cases the courts have applied the doctrine of res ipsa loquitur in malpractice cases. But it has only been invoked where a layman is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. For example, it has been applied where a sponge was left in the body of a patient after closing an operative incision. (Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409 * * *); where the patient was burned by the application of hot compresses or heating apparatus (Timbrell v. Suburban Hospital, 4 Cal.2d 68, 47 P.2d 737 * * *); where the patient was burned through the operation of an X-ray machine (Moore v. Steen, 102 Cal.App. 723, 283 P. 833 * * *); and where the patient sustained an infection through the use of an unsterilized hypodermic needle. Barham v. Widing, 210 Cal. 206, 291 P. 173. In each one of these situations the rule was applied because common knowledge and experience teaches that the result was one which would not have occurred if due care had been exercised.
'But the present case shows an entirely different situation. Here what was done lies outside the realm of the layman's experience. Medical evidence is required to show not only what occurred but how and why it occurred. That evidence establishes beyond question not only that the peroneal nerve may be injured even where due care is used but that this unfortunate result invariably occurs in a limited number of cases.'
In the instant case, an inference may be drawn from substantial evidence in the record that the injury to Mrs. Seneris was not caused by negligence but was caused by some condition existing in the patient's system.
Appellants rely upon the case of Ybarra v. Spangard, 25 Cal.2d 486, 487, 154 P.2d 687, 688, 162 A.L.R. 1258. There the plaintiff was in the hospital for an appendectomy. The anesthetist adjusted him for the operation, 'pulling his body to the head of the operating table and * * * laying him back against two hard objects at the top of his shoulders, about an inch below his neck.' The anesthetic was then administered and he lost consciousness. When he awoke he felt a sharp pain in his shoulder; this spread down his arm which developed paralysis.
As stated in the opinion in 25 Cal.2d at pages 492, 494, 154 P.2d at page 690, this [281 P.2d 285] was 'an injury resulting from an external force applied while he lay unconscious in the hospital * * *.
'We do not at this time undertake to state the extent to which the reasoning of this case may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We merely hold that where a plaintiff receives unsual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.'
In the instant case, the respondents have met the inference of negligence by their explanation of what occurred hereinbefore recited.
Nor is there any merit to appellants' challenge of the propriety of the trial court in excluding the deposition of Dr. Frank Webb because of lack of qualifications to testify as an expert. Dr. Webb had never administered a spinal anesthetic nor had he ever seen one administered. He had never treated a patient for paralysis of the lower extremities at least for a period of some 34 years.
Speaking to this same contention in Huffman v. Lindquist, 37 Cal.2d 465, 478, 234 P.2d 34, 42, 29 A.L.R.2d 485, the court stated:
'By his own testimony Dr. Webb established the questionable sufficiency of his medical background and knowledge to permit his testifying on the requisite skill and care here concerned because of (1) his lack of active practice in California within the last 25 years, and (2) his lack of occupational experience in the treatment of living patients suffering comparable brain injuries and complications resulting in pulmonary embolisms.'
For the reasons stated the orders and judgment of nonsuit are, and each of them is, affirmed.
WHITE, P. J., concurs.
DORAN, J., dissents.