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Forbis v. Holzman

District Court of Appeals of California, Second District, First Division
May 8, 1935
45 P.2d 215 (Cal. Ct. App. 1935)


Hearing Granted by Supreme Court July 5, 1935.

Appeal from Superior Court, Los Angeles County; H. Parker Wood, Judge.

Action by Frank H. Forbis and another against Ralph R. Holzman. Judgment for plaintiffs, and defendant appeals.


HOUSER, Acting P. J., dissenting.


Gibson, Dunn & Crutcher, of Los Angeles (Philip C. Sterry, of Los Angeles, of counsel), for appellant.

Simpson & Simpson and W. E. Simpson, all of Los Angeles (Troy Pace, of Los Angeles, of counsel), for respondents.


SHINN, Justice pro tem.

Plaintiffs herein, the surviving husband and daughter of Beulah Forbis, deceased, brought this action to recover damages for her death, alleged to have been caused by the negligence of defendant. The complaint alleged the employment of defendant as a physician and surgeon to administer an anaesthetic during an operation for the removal of the appendix and drainage of the gall bladder of Beulah Forbis. The alleged negligence consisted of the giving of the anaesthetic in such manner that an insufficient supply of oxygen was administered with ethylene gas, carbon dioxide gas and ether to prevent asphyxiation and to maintain life, as a result of which, it is alleged, said Beulah Forbis met her death by suffocation.

The patient was anaesthetized by defendant. The operation was performed by a surgeon and the incision was being closed when it was noticed that the anaesthesia had become too light. The operating surgeon requested of defendant a deeper anaesthesia. It was then noticed by defendant that the oxygen from the oxygen tank was being depleted at a rapid rate. He called for a fresh supply of oxygen, which was provided by an orderly employed by the hospital. The time required to get the other tank and connect it was approximately five minutes. During that time the ethylene gas was not shut off, the mask under which it was being administered remained on or over the patient’s face, and she continued under the anaesthesia. At about the time the fresh supply of oxygen was administered, the patient ceased to breath and life became extinct.

Appellant challenges the sufficiency of the evidence to support the findings of the jury on the issues of negligence and as to the cause of death. In discussing the evidence bearing upon these issues, we shall take up first that which bears upon the cause of death. There are two phases of this inquiry, one relating to the acts of the defendant in administering the anaesthetic, the other to the symptoms exhibited by the patient indicating the cause of death. We have stated the theory of the plaintiffs. The defendant’s theory was that death resulted from heart failure and surgical shock unrelated to the anaesthesia. The jury found that the anaesthetic was administered in a manner which resulted in death, that is to say, gas was administered with an insufficient admixture of oxygen. The defendant testified that during the interval between the disconnection of one tank and the connection of the other he kept his fingers under the edges of the mask so as to allow the patient to breathe oxygen from the air, and that at no time was gas administered without oxygen.

A Miss Tudor, surgical nurse, testified for plaintiffs that the mask was kept on the patient’s face for approximately five minutes during the change of tanks, being lifted only once during that time. Mrs. Hotaling, a lay witness for plaintiffs, testified to the same effect, stating that the mask was raised but once for an instant while defendant looked at the patient’s eyes and that the witness did not see that the doctor kept his fingers under the edges of the mask. The evidence was ample to show that the administration of gas without oxygen for such a period of time would probably result in death.

Dr. Trenery, an osteopathic physician, and the only medical expert produced by plaintiffs, testifying in answer to a hypothetical question, gave it as his opinion that death resulted from asphyxiation. Unless his testimony is subject to such inaccuracies and defects as to rob it of probative force, the opinion expressed by this witness is evidence tending to prove that the anaesthetic was administered in a lethal mixture. We have reached the conclusion that the opinion expressed by this witness was based upon a palpably deficient and false hypothesis and carries no weight whatever as opinion evidence as to the cause of death. The symptoms of an overdose of ethylene gas are cyanosis or a bluish color of the body before death, labored, rapid, and shallow breathing and a drop in blood pressure following cessation of respiration. These are the symptoms stated by Dr. Trenery and the other physicians who gave testimony on the subject. Dr. Rinkenberger was of the opinion that in asphyxiation cessation of respiration would not precede a drop in blood pressure. All of the medical witnesses testified that a drop in blood pressure prior to cessation of respiration would indicate heart failure. This was the opinion of Dr. Trenery and the significance of this fact will be discussed later. The symptoms preceding the death of Mrs. Forbis were cyanosis following cessation of respiration, normal breathing up to the time of cessation of respiration, and a drop in the systolic blood pressure of the patient immediately preceding death from 135 to 105.

The hypothetical question propounded to Dr. Trenery assumed that the blood pressure readings were not unusual during normal anaesthesia; it omitted altogether the last one, which showed a marked drop five minutes before cessation of respiration. In this respect the question assumed normal blood pressure during anaesthesia. The question also did not assume normal respiration up to the time of cessation of respiration. Both of these facts were highly significant as indicating the cause of death. We think they were so regarded by the witness, for he testified that a drop in blood pressure before cessation of respiration would be an important fact to be taken into consideration. He stated, "It is my opinion that in death by suffocation respiration would cease and the blood pressure would drop following, whereas in death from heart failure the blood pressure would drop before respiration ceased"; also, that it would be a marked drop and that he believed there would be a drop to a lesser extent in death by suffocation. He did not testify that in suffocation there would be a drop in blood pressure before respiration ceased, but he did testify that in death by suffocation there might be a slight rise in blood pressure before the drop, but in that case he could not tell at what time the blood pressure would drop. We quote from the testimony of this witness to show that while he failed to take into consideration the marked drop in blood pressure, a symptom of heart failure, he very clearly considered it to be an important one in determining the cause of death. It is difficult to believe that this fact would have been studiously omitted from the question asked him and would have been given no consideration by the witness if the fact itself was consistent with his opinion that death was due to suffocation. He did not testify that he assumed the breathing of the patient to have been normal, but he did testify that one of the symptoms of an overdose of ethylene was rather deep breathing, which becomes shallow and rapid and ceases and that the breathing is not normal. He testified as follows on cross-examination: "Assuming that the patient’s breathing was normal up to the time of death, I would not say that she was killed by a lethal dose of ethylene if that was the only fact known." In this instance again there was omitted from the hypothetical question a most material fact. The question did not assume that the patient’s breathing was not normal, but in all fairness it should have assumed that it was normal, for such was the testimony. We might add here that the testimony of plaintiffs’ witness Mrs. Hotaling, relied upon by them, did not show abnormal breathing but quite the contrary. Again, Dr. Trenery testified that the symptoms of an overdose of ethylene were, among others, "cyanosis usually at first." He further testified in his cross-examination that he assumed the patient to have been cyanotic both before and after respiration ceased. There was no testimony to the effect that cyanosis occurred before cessation of respiration. No witness testified to an unnatural color of the patient’s face prior to the time life became extinct. The opinion of Dr. Trenery was based in part upon the assumption that cyanosis occurred before respiration ceased, upon the further assumption that blood pressure did not drop before respiration ceased, and upon the further assumption that breathing was not normal. It is true that the witness does not admit assuming normal blood pressure and abnormal breathing, but he either so assumed or ignored those pregnant facts altogether. In either case the opinion as to the cause of death is worthless. There remains then nothing in the proven symptoms indicating the cause of death which support the opinion of this witness, unless it be the fact of cyanosis after death and a swelling of the neck. Cyanosis after death occurs in all cases, according to the medical testimony, except where there has been excessive hemorrhage. There was no testimony to the effect that swelling of the neck after death does not occur in death from heart failure or that it is peculiar to death from suffocation or an overdose of gas. In treating as a significant fact the swelling of the neck, the witness assumed this condition to have existed immediately after death, whereas the first observation testified to was made some three or four hours later.

No one can doubt the extreme difficulty encountered by a jury or trial judge in an endeavor to determine the true cause of death in a case such as this. They are entitled to receive the honest opinions of expert witnesses, predicated upon facts established by the evidence, and the opinions are of no value if they are based upon essential facts which are not given in evidence, upon facts which are directly contrary to the evidence, or upon statements omitting facts which are important, if not necessary, for the witnesses to take into consideration in formulating their opinions. Intentional unfairness need not exist to justify the rejection of such evidence. The result is the same if the fault lies in honest mistake or in an excess of zeal to achieve the desired result. The questions asked may be unfair and the answers may be unfair, if based on a wrong hypothesis, notwithstanding the good intentions of counsel and witness.

The foregoing considerations condemn the testimony of the witness Trenery and brand it as of the type of opinion evidence unworthy of credence and unacceptable as evidence. The hypothetical case as to which his opinions were given was not that of Mrs. Forbis.

We give full recognition to the rule that a very considerable latitude is allowed in the statement of hypothetical facts calling for opinions from expert witnesses. Such statement need not include all of the facts testified to and, of course, it may assume facts most favorable to the theory of the party for whom the witness is testifying. There may be an allowable variation between the facts assumed and the actual facts proven. Treadwell v. Nickel, 194 Cal. 243, 228 P. 25. But it is said in this case that the opinion can have little, if any, value unless the material facts assumed in such question are substantially true.

Where the material facts upon which the opinion is based are untrue, and the erroneous hypothesis is disclosed by the questions, or by the answers of the witness, or by his testimony on cross-examination, the opinion itself becomes false and misleading. It tends to obscure the truth and to lead juries or courts into erroneous conclusions of fact. Opinion evidence lacking a true foundation of fact is incompetent. It carries no weight in the trial of a case and carries none when considered on appeal. A finding based wholly upon such incompetent evidence is without support. In re Gould’s Estate, 188 Cal. 352, 205 P. 457; Johnson v. Clarke, 98 Cal.App. 358, 276 P. 1052.

In submitting to juries questions calling for scientific and technical elucidation, where the chances of an erroneous result are always prevalent, the greatest care should be exercised to guard against opinion evidence which is fallacious and misleading. The relaxation of this rule in the instant case was especially unfortunate, in view of the difficult and delicate questions of fact involved.

Timely and sufficient objections were made by defendant to the question which called for the opinion of Dr. Trenery as to the cause of death. The objections could have been made more specific had there been incorporated in the question facts erroneously assumed by the witness as developed on his cross-examination, but the objections, as made, should have been sustained. The testimony of this witness was therefore improperly before the jury. The injurious consequences are manifest. The opinion of the doctor, if believed, established suffocation as the cause of death and made it necessary for the jury to believe that the mask was held upon the face of the patient as testified to by plaintiffs’ witnesses, and not as testified to by the defendant. But for the opinion of the doctor, a contrary conclusion might well have been reached. That the defendant’s case was prejudiced admits of no doubt, and upon this ground the judgment must be reversed. A discussion of the error in the admission of Dr. Trenery’s testimony and of the effect thereof would be incomplete if we did not advert to the fact that all of the witnesses, who were observers, testified that respiration ceased almost simultaneously with the call for fresh oxygen. It would therefore appear, as a necessary sequence upon the record before us, that the assumption that the patient breathed an appreciable quantity, or perhaps any quantity of gas without oxygen, was based upon the merest speculation and conjecture. This fact leads us to believe that great credence was given the opinion evidence of Dr. Trenery and that this may have been a deciding factor in the case.

The fact that blood pressure dropped just before respiration ceased was testified to by Rinkenberger, the operating surgeon; it was shown upon the chart, which was admitted in evidence, and no attempt was made to disprove it. Dr. Trenery was asked on cross-examination whether his opinion as to the cause of death would be the same if he assumed the drop in blood pressure to be a fact. He answered that his opinion would be the same. Upon redirect examination he was asked by plaintiffs’ counsel to explain his reasons for the answer, which it appears he desired to do. He gave as his reason that Dr. Rinkenberger had no opportunity to observe the drop in blood pressure. A motion was made by defendant’s counsel to strike out the answer, as a conclusion of the witness, which was denied. This ruling was erroncous. Not only did the witness evade giving a direct and fair answer to the original question, but in explaining it he was allowed to cast doubt and suspicion upon the testimony of Dr. Rinkenberger, in a most unwarranted and uncalled for manner. The observation of the court to the effect that the answer "might be good and it might not be good," while evidencing a judicial impartiality, did not clarify the situation or rectify the damage.

It would have been better had the court sustained defendant’s objections to questions asked defendant’s experts on cross-examination, in which it was assumed that the mask was held "tightly" on the patient’s face. The evidence did not justify the question in that form and counsel should have been required to reframe it.

We are of the opinion that had it not been for the errors already discussed, a different result would probably have been reached by the jury. These views render it unnecessary to pass upon alleged errors in the refusal of instructions requested by defendant, and minor claimed errors in connection with the receipt of the testimony of plaintiffs’ expert witness.

The judgment is reversed.

I concur: YORK, J.

I dissent: HOUSER, Acting P. J.

Summaries of

Forbis v. Holzman

District Court of Appeals of California, Second District, First Division
May 8, 1935
45 P.2d 215 (Cal. Ct. App. 1935)
Case details for

Forbis v. Holzman

Case Details

Full title:FORBIS et al. v. HOLZMAN.[*]

Court:District Court of Appeals of California, Second District, First Division

Date published: May 8, 1935


45 P.2d 215 (Cal. Ct. App. 1935)

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