Berkey v. Anderson

• Decision Date: 18 November 1969
• Citation: 1 Cal.App.3d 790,82 Cal.Rptr. 67
• Court: California Court of Appeals Court of Appeals
• Parties: Bernard BERKEY, Plaintiff and Appellant, v. Frank M. ANDERSON, M.D., John D. Camp, M.D., Roy B. Weathered, M.D., Robert E. Rickenberg, M.D., and Henry J. Teufen, M.D., Defendants and Respondents. Civ. 33136.

Page 67

82 Cal.Rptr. 67

1 Cal.App.3d 790

Bernard BERKEY, Plaintiff and Appellant, v. Frank M. ANDERSON, M.D., John D. Camp, M.D., Roy B. Weathered, M.D., Robert E. Rickenberg, M.D., and Henry J. Teufen, M.D., Defendants and Respondents.

Civ. 33136.

Court of Appeal, Second District, Division 5, California.

Nov. 18, 1969.

Hearing Denied Jan. 14, 1970.

Hillel Chodos, Beverly Hills, for plaintiff and appellant.

Overton, Lyman & Prince, Los Angeles, for defendants and respondents John D. Camp, M.D., Roy B. Weathered, M.D., Robert E. Rickenberg, M.D. and Henry J. Teufen, M.D.

Kirtland & Packard, Los Angeles, for defendant and respondent Frank M. Anderson, M.D.

CHANTRY, Associate Justice. ^*

This is an action against respondent Rickenberg and his partners for malpractice in connection with the performance of a myelogram and against respondent Anderson for prescribing the myelogram without the informed consent of the Appellant. ¹

At the conclusion of plaintiff's evidence the court granted defendants' motions for nonsuit, and this is an appeal from the judgment of dismissal thereafter entered. In considering whether there was error in the granting of the nonsuit, we must be guided by the following rule:

"A motion for nonsuit may properly be granted '* * * when, and only when Disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff."' (Seneris v. Haas, 45 Cal.2d 811, 821, 291 P.2d 915, 921, 53 A.L.R.2d 124.)

The foregoing rule must be applied to the facts established by the following testimony:

In 1961 appellant Bernard Berkey fell down an embankment and injured his neck. He was treated for a few months by a doctor not involved in this case, and in mid-1961 he came under the care of respondent Dr. Anderson. Thereafter his condition improved enough to allow him to go back to work as a deputy field assessor for the County of Los Angeles, but on February 5, 1962, appellant again injured his neck while reaching into the back seat of his car. The next day Dr. Anderson conducted another neurological examination, at which time he discovered no abnormalities of the left leg or the lower back, and he concluded that appellant's problem was in his neck and that he should have a myelogram.

After this examination and pursuant to Dr. Anderson's advice, appellant went to the Good Samaritan Hospital on February 8, 1962, to undergo a diagnostic procedure known as a myelogram. At the time of entering the hospital, according to the appellant and the testimony of Dr. Anderson, the appellant had no trouble whatsoever with his lower back and legs, his disability being limited to the cervical spine and pains radiating down his left arm. Dr. Anderson testified that when the appellant first came to him in 1961, this was his only complaint and that after a physical and neurological examination, including tests of sensation and reflex activity of all extremities, electromyogram studies and x-rays of the upper body, he found no abnormalities of the left leg.

Appellant's version of what transpired at the time Dr. Anderson proposed a myelogram is as follows: While making the examination on February 6, 1962, Dr. Anderson said very little to him, but directed his nurse to ascertain if a bed was available at the hospital for a myelogram. Thereafter he stated to appellant, 'We have to get to the bottom of this,' and he said that he was going to place him in a hospital for a myelogram. Appellant asked if that was like the electromyograms which he had been having, to which the doctor answered that it was simply exploratory and nothing to worry about; that the most uncomfortable thing about it was that he would be put on a cold table and tilted about, after being harnessed down; and that he would feel nothing, as Dr. Anderson would order that appellant be given a pain killing injection. Appellant testified that at the time he had no knowledge of what was involved in a myelogram; that he had confidence in Dr. Anderson and believed his statements that the procedure was simply exporatory and no more serious than the electromyograms he had been given. Appellant stated that he would never have permitted a puncture of his spine, as he had heard of dire results from spine injections. The nature of a myelogram was not explained by Dr. Rickenberg before it was performed, and Dr. Anderson testified he did not expect Dr. Rickenberg to do so, beyond making some fundamental comments. Dr. Anderson, in his testimony, never contended that he described a myelogram to appellant, beyond indicating that it was a further procedure in the diagnosis of his case.

Evidence was introduced that appellant drove to the hospital, carried his valise to the room, and in general had no difficulty whatsoever in the use of his legs.

The myelogram was performed by Dr. Rickenberg on February 8, 1962. This defendant is a consulting specialist, practicing solely at the Good Samaritan Hospital as a radiologist, and almost exclusively upon patients referred by other doctors for diagnostic procedures.

Dr. Rickenberg testified he had performed hundreds, perhaps thousands, of myelograms over a perior of 20 years; that he had no recollection of this particular one, and that he testified solely from his records. He stated he had a routine procedure for administering myelograms, which he described as follows: The patient is placed prone upon a fluoroscopic table, to which table he is harnessed so that he will not move when it is tilted, and a spinal needle of 20 gauge, 3 1/2 inches in length is introduced into the midline of the lumbar area, either at the third, fourth, or fifth lumbar interspaces (in this case he did not remember which). The needle is barrel-like with a solid core, or stylet, which is removable, and fluid may be forced or taken through the barrel when the stylet is removed. It is introduced between the spinous processes through the muscles of the back to reach the subarachnoid space, or spinal canal area, where the spinal fluid is located. In a properly performed myelogram the needle is inserted slowly, and if one is not sure of its position, the stylet can be removed, and it can be ascertained if spinal fluid is flowing through the needle. As the spinal fluid is under some pressure, it will escape through the needle if the subarachnoid space has been reached. The position of the needle can also be located at any time by the use of a fluoroscope. After the needle is introduced into the subarachnoid space, the stylet is removed and 8 to 10 ccs. of spinal fluid are recovered and sent to the laboratory for analysis. With another syringe a substance called panopaque is introduced through the needle into the subarachnoid space. Because this substance is heavier than the spinal fluid, it acts like the bubble of a spirit level, and by titling the table the panopaque can be made to flow back and forth in the spine of the patient. When the panopaque is centered in the area in which the doctor is interested, x-rays are taken. Because of the tilting of the table it is necessary that the patient be harnessed in place. To prevent the flow of panopaque to the brain, an assistant keeps the head of the patient up as far as possible. The needle is left in place, and if the x-rays prove satisfactory, as much as possible of the panopaque oil is removed by taking the stylet out of the needle and removing the oil through the barrel of the needle.

Appellant testified that in the course of the myelogram he felt a 'couple of mild sticks I didn't mind at all' and suddenly he felt a terrific thrust as if someone were jamming an ice pick into his lower spine; that he had never felt anything as excruciating as this before, and that a terribly sharp pain shot over his side and left leg. He testified he 'let out a yell' and was told to 'take it easy'; that he would be alright, and that it would pass over.

Following the myelogram, he was told to lie flat on his back for 24 hours, which he did. At the end of that period when he attempted to arise, he found that he had what he called a 'rubber leg.' When he put weight on the leg it buckled, and he had never experienced such difficulty before.

Dr. Anderson testified that upon an examination conducted March 1, 1962, he found symptoms not previously observed consisting of diminished sensation in the front of the left leg below the knee of appellant and a weakness in dorsiflexion of the left foot, sometimes referred to as 'foot drop.'

Dr. Faeth, who was consulted by the appellant after the myelogram, on August 2, 1963, testified that appellant had what he termed lumbar radiculopathy, which is a term indicating there is an irritation or compression of one of the nerve trunks arising from the lower end of the spine. It was his opinion that the fifth lumbar nerve root on the left side was involved. This nerve root exits from the spine in the interspace between the fourth and fifth lumbar vertebrae, and its motor component supplies muscles in the front portion of the lower leg, principally those which permit dorsiflexion of the foot--the ability to bring the foot upward. It was his further opinion that the most probable cause of appellant's symptoms was compression of the particular nerve as the result of a herniated disc, permitting the two vertebrae where the nerve exits to move closer together, thereby compressing the nerve between them. He described the intervertebral disc as wafer-shaped with a tough outer membrane or wall known as the annulus fibrosis, which covers the more gelatinous central portion, or nucleus, and that a rupture of the membrane permits the gelatinous portion to extrude, narrowing the intervertebral space. While giving a herniated disc as the most...