Opinion
Rehearing Denied Dec. 21, 1961.
Hearing Granted Jan. 24, 1962.
Opinion vacated 22 Cal.Rptr. 337, 372 P.2d 97.
Pollock & Pollock and Edward I. Pollock, Los Angeles, for appellant.
McInnis, Focht & Fitzerald and John W. McInnis, San Diego, for respondents.
GRIFFIN, Presiding Justice.
Plaintiff-appellant brought this action against defendants-respondents Charles E. Weber, Richard A. Jones and Gorodn C. Langsdorf, medical doctors, and Scripps Memorial Hospital, a corporation, for alleged malpractice and negligence in the performance of a physterectomy operation upon plaintiff. All defendants except Dr. Weber and Dr. Jones were dismissed from the action. A jury verdict for Dr. Weber and a judgment of nonsuit and dismissal as to Dr. Jones resulted. Plaintiff appealed from both judgments.
Plaintiff's sole contentions are: (1) that there was specific evidence of negligence on the part of Dr. Jones; (2) that the doctrine of res ipsa loquitur was applicable to both Dr. Jones and Dr. Weber; and (3) that the court erred in refusing to give requested instructions to the jury on said doctrine.
Plaintiff was a registered nurse and worked at Scripps Memorial Hospital. In October 1957, she went to Dr. Jones, who examined her and referred her to Dr. Weber. Previously, in 1956, plaintiff had been attended professionally by Dr. Jones for a malignancy in her breast. At that time, Dr. Jones performed a radical mastectomy (removal of the breast and axillary lymph nodes). Plaintiff then understood that she had a malignancy and that was the reason for that operation. Following this surgery, she had a full course (18 treatments) of deep X-ray. Subsequently, she saw Dr. Taylor regarding a skin irritation caused by the X-ray in the area of her chest.
Plaintiff's complaints in October 1957 were of backache, irregular menstrual periods with clots and profuse flowing. Because of her previous history of cancer, plaintiff was concerned about these symptoms. Dr. Weber found she had an enlarged uterus and it was then flowing profusely. A dilation and curettement was ordered. She was hospitalized and this surgery was carried out. Tissue was removed and examined by a pathologist, who rendered a diagnosis of 'adenomatous phyperlasia of endometrium in the proliferative phase,' meaning a marked overgrowth, marked hyperplasia of the endometrial tissue on the glands of the lining of the uterus, fibroid tumors of the uterus, all indicating the necessity for a hysterectomy. It was concluded that that operation should be performed. Dr. Weber Plaintiff's medical evidence pertaining to the operation was the testimony of Dr. Weber and portions of the deposition of Dr. Jones, all elicited under Code of Civil Procedure, section 2055, plus the hospital charts and records.
Dr. Weber testified that he was a qualified specialist and gynecologist. Counsel for plaintiff so conceded. He had performed or assisted in performing 700 to 800 hysterectomies. Dr. Jones, as a duly qualified surgeon, did not perform the surgery but did only what the chief surgeon directed. The procedure adopted was a recognized one and described as the 'Richardson' method. The operation, described by the two doctors as a complete hysterectomy, was uneventful and nothing unusual was encountered.
Plaintiff testified that after the operation she stayed in the sospital for about one week and felt no paid except when voiding; that a few days thereafter she felt a serious pain, became distended and while seated at the table an enormous gush of urine escaped and the next day she called Dr. Weber who examined her and said that the found a leakage of urine from the vault of the vagina; that he took her into his office and told her he had put a suture through the flap of the bladder; that he believed a vesical vaginal fistula, an opening between the bladder and the vagina (hereinafter referred to as a fistula) had occurred; that he would hope for a spontaneous closure, but if not surgery would have to be performed; that he told her to go home and follow certain instructions and she did so for a few days, without relief.
Plaintiff further testified that after the hysterectomy operation she asked to see an urologist who examined her and recommended a cystoscopy, I.V.P, which was performed by Dr. Boughten; that she did very well for a few days and then the same thing occurred; that she left and went to British Columbia and consulted surgeons there who removed portions of the fistula and that she was in the hospital one month; that after the first ten days the fistula reopened, a Foley catheter was employed and after being placed on a Stryker Frame, and following a period of treatments, she recovered. She returned to her duties in La Jolla about August 1958 and commenced this action against Dr. Weber and Dr. Jones. No evidence was presented as to the findings of the Canadian doctors.
Dr. Weber testified that usually a patient does not suffer a fistula following a total hysterectomy, but there are reported incidents of this occurrence even in the hands of the most skilled specialists in the country and the occurrence of this incident is approximately two or three per thousand cases and is an accepted inherent risk of the procedure and is a calculated and recognized incident. He then testified that in his opinion irradiation, although not a major factor, was a contributing factor in this particular case to the fistula. He testified that in his opinion there is usually surgical trauma and bruising of the bladder as a result of the handling of the tissue during a complete hysterectomy. He testified that one connot get a fistula from putting a stitch through a flap of the bladder and that he could not state what was the cause of the fistula in this particular case. That is, he could not say whether it was due to a bruising of the tissue, whether it was due to an inherent weakness in that point, whether it was because of vaginal infection in association with other causes, or whether it was because of a suture in the wall of the bladder. He then stated that he placed all sutures wherever areas of tissue were brought together after the removal of the uterus and that this was his responsibility and that it is mandatory in any hysterectomy to place both ligatures and suture ligatures on the wall of the bladder in the tissue adjacent to the wall for the control of bleeding. He testified that it is impossible to dissect these tissues free without causing bleeding and that sutures are necessary Plaintiff read into evidence portions of the deposition of Dr. Jones. He testified that he did not know how this fistula occurred; that usually the assistant will use either a sponge or piece of tape to keep the bladder away from the vault of the vagina and the purpose of this is to prevent the bladder from being sutured to the vaginal vault; that in the instant case it would be fair to state that the fistula was not caused by a tumor, infection or by the tearing of the bladder. After placing in evidence the hospital chart and records, plaintiff rested her case in chief. It was at this stage in the proceedings that defendants moved for a judgment of nonsuit. The nonsuit was granted only as to Dr. Jones. Judgment of dismissal as to him followed.
The propriety of this judgment in favor of Dr. Jones is now raised. Much depends on the determination of the question whether the trial court should have and did apply the doctrine of res ipsa loquitur in its ruling. Since the trial judge refused to give proffered instructions on the doctrine as to defendant Dr. Weber, we will assume he did not apply it to the defendant Dr. Jones. The pivotal question then is whether the court erred in refusing to give or consider the proffered instructions which are based on BAJI No. 206; Guillen v. Martin, 166 Cal.App.2d 172, 177, 333 P.2d 266; BAJI No. 214-B and Seneris v. Haas, 45 Cal.2d 811, 291 P.2d 915, 53 A.L.R.2d 124.
The proffered instructions read in part:
'PLAINTIFF'S REQUESTED INSTRUCTION NO. K
'If, and only in the event, you should find that there was an accidental occurrence as claimed by plaintiff, namely, that the bladder of the plaintiff was sutured during the operation of November 8, 1957, and that the fact of such suturing of the bladder was not recognized by the defendant surgeons who were in attendance at that time; and if you should find that from that accidental event, as a proximate result thereof, Plaintiff, Mrs. Siverson, has suffered injury, you are instructed as follows: An inference arises that the proximate cause of the occurrence in question was some negligent conduct on the part of those defendants. That inference itself is a form of evidence, and if none other exists tending to overthrow it, or if the inference, either alone or with any other evidence supporting it, preponderates over contrary evidence, it warrants a verdict for the plaintiff, Mrs. Siverson. Therefore, you should weigh any evidence tending to overcome that inference, bearing in mind that it is incumbent upon the defendants to rebut the inference by showing that they did, in fact, exercise the care and diligence required of them, or that the accident occurred without being proximately caused by any failure of duty on their part.' (Italics ours.)
(It should be here noted that plaintiff claimed in her complaint that defendants 'negligently and unskillfully operated upon * * * plaintiff.' Furthermore, in the proffered instruction plaintiff calls upon the court to instruct as a fact what plaintiff claims defendant did.)
'PLAINTIFF'S REQUESTED JURY INSTRUCTION NO. L
'In determining whether a defendant's learning, skill and conduct fulfilled the duties imposed on him by law, as they have been stated to you, you are not permitted to set up arbitrarily, a standard of your own. The standard, I remind you, was set by the learning, skill and care ordinarily possessed and practiced by others of the same profession in good standing, in the same locality and under similar circumstances and at the same time. It follows therefore, that the only way you may properly learn that standard is through evidence presented in this 'However, this exception exists to the rule just stated: When it is common knowledge that injury to a part of the body which a surgeon was not employed to operate upon does not usually result from an operation such as that which he was employed to perform, and ordinarily need not result or be anticipated if the surgeon performs his duty, expert testimony is not required to establish such a fact, but it may be judicially noticed as a part of that fund of common knowledge shared by us with our fellow citizens generally.
'Thus this Court takes judicial notice of a fact, which you may regard as being in evidence, namely, that: a patient who has had performed upon her surgery for a hysterectomy, does not ordinarily sustain a fistula. (Italics ours.)
See Dees v. Pace, 118 Cal.App.2d 284, 289, 257 P.2d 756.
After plaintiff rested her case, Dr. Weber produced Dr. Jones as a defense witness. Dr. Jones testified that he was present at the start of the operation to perform whatever duties Dr. Weber directed him to do; that he could not recall what exact procedure did take place but, generally, in the conduct of a hysterectomy, the assistant might retract the skin, open the abdominal cavity allowing the surgeon to work on the uterus, and after the surgeon has incised the peritoneum over the bladder and the uterus and has placed it where he wishes it, he asks the assistant to hold it while he continues his operation, and, during the course of the operation, he may ask the assistant to tie certain blood vessels or otherwise hold instruments for the purpose of exposure; that in the instant case he was sure Dr. Weber dissected the uterus away from the bladder; that a combination of blunt and sharp dissection was called for; that in separating the organs, it generally became necessary to perform ligatures of bleeders during the hysterectomy; that in the instant case, chromic catgut sutures were used; some or most of them were tied by Dr. Weber and some might have been tied by him; that the bladder is held away throughout the closure of the vagina; that the bladder flap is a fold of peritoneum and accompanies the bladder which is held away; that if a suture was put through the flap of the bladder, it would not be the same as putting a suture through the bladder wall in its full thickness and it would not penetrate the bladder at all; that a suture through the bladder flap could not, of itself, cause a fistula; that the uterus removed from plaintiff was about one and one-half to two times the normal size; that at no time did he notice any damage to the bladder by way of a cut or tear due to use of a scalpel or scissors and he saw no leakage of urine during the operation; that at no time during the operation did he place a suture through the entire thickness of the bladder wall so as to incorporate any tissue within it and he did not see Dr. Weber do it either; and that he did not thereafter take care of plaintiff post-operatively.
Dr. Weber testified further that in the single-stitch or Richardson technique, there would be no area where a suture would go through the wall of the bladder except in an attempt to control hemorrhage or bleeding and that these are the accepted methods of controlling bleeding. In response to a direct question as to his opinion as to what caused the fistula in this particular case, he replied:
'Well, we can say categorically that it was because of the devascularization of the bladder tissue in the area that ultimately formed the fistula. Whether that was by extreme degree of bruising of the tissue; whether it was by an inherent weakness in that point; whether it was because of vaginal infection in association with these; or whether it was because of a suture in part of the wall of the bladder to control bleeding, it is impossible to state.' As to the possibility of irradiation causing this fistula, he said he did not believe it was a primary cause but did believe it was a contributing factor. He then restated that he placed all sutures wherever areas of tissue were brought together after the removal of the uterus and this was his responsibility.
Dr. Mullenix, a specialist in urology who examined plaintiff, testified that he examined Mrs. Siverson and gave his opinion as to the cause of this particular fistula following the hysterectomy and that he was firmly convinced that:
'* * * in removing any organ from an adjacent organ, * * * the organ has to be separated from the surrounding tissues * * * And I think that in doing that, * * * these blood supplies of adjacent organs are intermingled * * * there isn't any way to know to what extent you may be injuring the blood supply of the adjacent organ. * * * I think it is these unseen things that cause all vesical vaginal fistulas excluding those * * * of curring and visible injury.'
Dr. Hark, a specialist, who has done over 800 pysterectomies since 1946 and who knew plaintiff and examined her operative chart, testified that out of the 800 he had two vesical vaginal fistula cases; that one healed spontaneously and the other was repaired. He testified that a fistula could occur even in using the standard of care of other specialists practising in the community; that in addition to the five or six possible causes for the fistula in the instant case testified to by defendants, he added possible distention of the bladder and rupture following the surgery. He reiterated the statement that the flap on the bladder was no part of the bladder and a suture through it would not cause a fistula and from an examination of the operative chart he could find no cause of this particular fistula.
Counsel for plaintiff produced no medical testimony to the effect that anything done by these defendants constituted negligent conduct on their part or that defendants did not, in fact, exercise the standard of care and diligence required of them. That standard of care has been defined as that degree of learning, skill and card ordinarily possessed and practised by others of the same profession in good standing, in the same locality and under similar circumstances and at the same time. To accomplish this result, counsel for plaintiff relies upon his thorough and very clever cross-examination of defendants and their medical witnesses under Code of Civil Procedure, section 2055. He is authorized to do this. (McCurdy v. Hatfield, 30 Cal.2d 492, 183 P.2d 269.) He also claims that the facts bring the case within the exception created by application of the res ipsa loquitur rule and that a qualified instruction upon this rule should have been given to the jury. One of the basic facts which plaintiff must prove before the doctrine is applicable is that the occurrence is one that ordinarily does not happen unless there was negligence. (Dees v. Pace, supra, 118 Cal.App.2d 284, 290, 257 P.2d 756; Milias v. Wheeler Hospital, 109 Cal.App.2d 759, 241 P.2d 684.) We do not believe Seneris v. Haas, supra, 45 Cal.2d 811, 291 P.2d 915, modifies this fundamental part of the rule as contended by plaintiff.
In Engelking .v Carlson (1939), 13 Cal.2d 216, 88 P.2d 695, which case involved alleged malpractice of two surgeons in performing an operation on plaintiff's knee, the latter being unconscious and the peritoneal nerve was severed. The question of the application of the doctrine became involved. At the conclusion of plaintiff's evidence, a nonsuit, as here, was granted as to one defendant, the assistant surgeon, and after hearing the evidence the trial judge directed a verdict in favor of the remaining defendant. On the appeal, the Supreme Court held that the doctrine of res ipsa loquitur may be invoked in malpractice cases only when 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 Seneris v. Haas,
'* * * any expression in the Engelking case which may be contrary to this conclusion is hereby disapproved.'
The precise effect of the Seneris case on Engelking v. Carlson, supra, 13 Cal.2d 216, 88 P.2d 695, is not clear. But a possible reconciliation of conflicting expressions may be gained from Salgo v. Leland Stanford etc. Bd. Trustees, (1957) 154 Cal.App.2d 560, 317 P.2d 170, involving an exploratory operation on plaintiff's aorta, following which his lower extremities were permanently paralyzed. The opinion states that the doctrine is applicable only where it is a matter of common knowledge among laymen or medical men or both that the injury would not have occurred without negligence, and the court added that to apply the doctrine in every case merely because the patient is under anesthesia would put a hopeless burden on the medical profession.
Dees v. Pace, supra, 118 Cal.App.2d 284, 289, 257 P.2d 756, 758, (hearing denied by the Supreme Court) involved a total hysterectomy operation resulting in a fistula or leakage of urine, as in the instant case. The facts are quite parallel and the medical testimony so similar that the case clearly determines the law here applicable unless the Dees decision has been overruled or mofified by later decisions. It was there said:
'An hysterectomy operation as disclosed by the medical testimony is a complicated one and it would lie beyond the realm of the common knowledge and experience of laymen as to whether or not this result would ordinarily occur in the absence of negligence. None of the doctors testified that in the small number of cases in which a fistula occurs that they are probably the result of negligence. On the cotrary the undisputed expert testimony shows that a fistula is a recognized hazard in all hysterectomies, one of the calculated risks; and while it does not occur very often from any cause, it may occur where the operation is performed under ideal conditions by the most skillful surgeon without negligence on his part.'
It was there held that in determining whether res ipsa loquitur is applicable in a malpractice case, it is beyond the realm of the common knowledge and experience of laymen whether a fistula in a partient's bladder would, in the absence of negligence, result from a total hysterectomy; that in determining the applicability of res ipsa loquitur, the mere fact that an unfavorable result in a hysterectomy is somewhat rare does not give rise to an inference that such result was caused by negligence; that one of the basic facts that plaintiff must prove before res ipsa loquitur is applicable is that the injury is one that ordinarily does not occur in the absence of negligence. In Guillen v. Martin, supra, 166 Cal.App.2d 172, 333 P.2d 266, this court had before it the question of the application of the res ipsa loquitur rule. However, in that case it was definitely shown by medical testimony as well as by common knowledge that the common bile duct had been severed and there was no question but that was negligence. Cho v. Kempler (1960), 177 Cal.App.2d 342, 351, 2 Cal.Rptr. 167, 173, 76 A.L.R.2d 774 involved the severance of a nerve in a mastoidectomy operation. It discusses the Dees case and, to some extent, disapproves of the statement therein that 'an admission of negligence' of a defendant doctor in a malpractice case would be evidence of a specific act of negligence and would not afford a basis for the giving of instructions on res ipsa loquitur. In the Cho case, it upheld the giving of such an instruction where there was an admission In Wolfsmith v. Marsh, 51 Cal.2d 832, 337 P.2d 70, involving injection of sodium pentathol into a varicose vein, the Supreme Court held the instruction permissible where there was expert testimony as well as common knowledge that such procedure was negligence. However, the Cho case and the Wolfsmith case pointed out that the Dees case was not in point because in the Dees case there was no testimony, either expert or otherwise, that would support the submission of such an issue to the jury.
It is true that in the Cho case it is said that the res ipsa loquitur doctrine in recent years has had a wider and more direct application in the malpractice field. For one thing, the courts have found in many cases sufficient facts to fulfill the special requirements of the doctrine and, for another, have become more actually aware of the need to protect an injured patient by inducing the physician to explain the reason for the injury or suffer the penalty of an adverse inference in the absence of such explanation. But, as stated in Salgo v. Leland Stanford etc. Bd. Trustees, supra, 154 Cal.App.2d 560, 569, 317 P.2d 170, 175:
'The great difficulty in the application of the doctrine is to determine where to draw the line. To apply it in all cases where an unexpected result occurs would hamstring the development of medical science. No medical man would dare to use new procedures, especially in surgery, because if injury resulted he would be prima facie guilty of negligence. * * * Thus a great responsibility rests upon the courts--to determine the point at which the doctrine will apply in order to be fair to a patient who has received a result which either common knowledge of laymen or of medical men teaches ordinarily would not occur without negligence, and to be fair to the medical men if there is a result which could occur without negligence and which should not impose upon them the presumption of negligence.'
In that case, Dees v. Pace, supra, 118 Cal.App.2d 284, 257 P.2d 756 was partially relied upon to reverse a plaintiff's judgment where the res ipsa loquitur instruction was given. See also Wickoff v. James, 159 Cal.App.2d 664, 324 P.2d 661; Horace v. Weyrauch, 159 Cal.App.2d 833, 324 P.2d 666, 64 A.L.R.2d 1276. Some argument is made that some of these cases involved a so-called mandatory type of instruction, i. e., holding as a matter of law an inference arose rather than a qualified type. The court in the Dees case held, in effect, that the evidence would not afford a basis for an instruction on the subject and that the doctrine of res ipsa loquitur would not be applicable and accordingly would not support a judgment on that basis. The conclusion must have been, by reference to the Dees case, that under the facts of that case, the submission of the question of res ipsa loquitur was unauthorized. The facts in the instant case cannot be distinguished from the facts there produced in this respect except that in the instant case plaintiff was in possession of evidence as to what the Canadian doctors did find was the real cause of her condition. She did not produce it, but relied upon the rule which would compel defendants to show absence of negligence on their part when she failed to produce evidence of the exact cause. We feel obliged to hold that the trial court was authorized to refuse the proffered instruction, particularly in the form presented, and also to disregard the rule in granting a nonsuit as to defendant Jones.
Judgments affirmed.
SHEPARD and COUGHLIN, JJ., concur.