Bowers v. Olch

• Citation: 260 P.2d 997,120 Cal.App.2d 108
• Court: California Court of Appeals
• Decision Date: 08 September 1953
• Parties: BOWERS v. OLCH et al. Civ. 19121.

Page 997

260 P.2d 997

120 Cal.App.2d 108

BOWERS v. OLCH et al.

Civ. 19121.

District Court of Appeal, Second District, Division 3, California.

Sept. 8, 1953.

As Modified on Denial of Rehearing Sept. 30, 1953.

Hearing Denied Nov. 5, 1953.

Morris Lavine, Los Angeles, for appellant.

De Forrest Home, Los Angeles, for respondents Olch, Shulman and Freiden.

Schell, Delamar & Loring, Los Angeles, for respondent Cedars of Lebanon Hospital.

Loeb and Loeb, and John L. Cole, Los Angeles, for respondent Pearson.

Clarence Hansen, Los Angeles, amicus curiae on behalf of appellant.

PARKER WOOD, Justice.

Action against three surgeons, a hospital, and the supervisor of the operating rooms for damages resulting from alleged negligence during a surgical operation. Trial was by jury. Motions for nonsuit were granted as to the second assistant surgeon (who was the resident surgeon of the hospital), the hospital, and the nurse. Judgment of nonsuit was entered pursuant thereto. Verdicts were in favor of the principal surgeon and the first assistant surgeon, and judgment was entered pursuant thereto. Plaintiff appeals from the judgment of nonsuit and the judgment based upon the verdict. He contends that the verdict was contrary to the evidence; that the court erred in granting the motions for nonsuit, in admitting and excluding certain evidence, in instructing the jury, and in refusing to allow an amendment to the complaint.

On June 25, 1946, Dr. Isaac Y. Olch, who was employed and paid by plaintiff, performed an operation upon plaintiff at the Cedars of Lebanon Hospital and removed about three-fourths of plaintiff's stomach. Dr. Alex Shulman, who was employed and paid by Dr. Olch, assisted in the operation as the first assistant surgeon. Dr. Morris Freiden, who was employed and paid by the Cedars of Lebanon Hospital as surgical resident, assisted in the operation as the second assistant surgeon. Helen Pearson, who was a registered nurse and the administrative supervisor of the nine operating rooms of the hospital, assigned two nurses to attend the operation, and they were in the operating room during the operation. Miss Pearson was not in the operating room.

About April 1, 1950, plaintiff who had had recent attacks of fever and had enlarged lymph glands under his jaw and arms, was examined by Dr. Simkin at the Midway Hospital in Los Angeles. The examination showed tenderness particularly in the stomach along the right rib margin. X-rays of plaintiff, taken in that hospital on April 7, 1950, showed a curved surgical needle within the soft tissues of the left upper quadrant (of the addomen) below the rib margin. Dr. Simkin did not tell plaintiff that the X-rays showed a needle. (That doctor testified that the wife of plaintiff, who is a nurse, saw those X-rays on April 7th.) On April 8th Dr. Simkin discussed the matter of the needle with Dr. Olch and sent the X-rays to him. About April 16, 1950, plaintiff heard for the first time that a needle was in his abdomen--he heard a technician at the Midway Hospital say that an X-ray showed a needle in the plaintiff's stomach. Appellant went to Dr. Olch's office on April 20th and Dr. Olch showed him the X-ray and told him that it was not necessary to remove the needle since it was undoubtedly encased in scar tissue, but if he wanted it removed it could be removed without cost to him. Plaintiff declined that offer and went to see Dr. Furnish. (On April 25th plaintiff and Dr. Simkin discussed the matter of the needle.) On July 14, 1950, Dr. Furnish operated upon plaintiff, in the presence of Drs. Olch, Shulman and Freiden, and removed the needle. It took about four hours to perform the operation--the needle was in the splenic flexure of the large intestine in a band of fibrous tissue or adhesions, which band was about 2 inches long and 1 inch thick. In working the needle loose (in the adhesions) it broke in two.

Appellant contends that the court erred in permitting Dr. Olch to give his opinion as to how the needle got into appellant's body. He (appellant) argues that the opinion was based upon surmise, conjecture and speculation and that such an opinion cannot be used to rebut the inference of negligence which arose under the doctrine of res ipsa loquitur. The needle was left in appellant's abdomen during the operation by Dr. Olch in 1946. Dr. Olch testified that he did not know how the needle got into appellant's abdomen; that in his opinion he did not leave the needle there; that he had no specific independent recollection of the operation in 1946. Counsel (Mr. Home) for Drs. Olch, Shulman and Freiden asked Dr. Olch as follows: 'Do you have an opinion as to how the needle in this case got into the body of Mr. Bowers?' Dr. Olch answered: 'Yes, I do. It got in in one of two ways, in my opinion.' Thereupon counsel for appellant said: 'I object to this. It is a question for the jury to determine. It is incompetent, irrelevant and immaterial.' The judge said: 'I don't know how the jury is going to get inside that incision and see how it got there unless somebody tells them.' The objection was overruled, and Dr. Olch testified: 'These laparotomy pads are put up in packages of six. They are put up in these packages in the supply room of the operating suite. We have an operating suite of nine rooms, nine operating rooms. We must have around 50 nurses and trained attendants who prepared these pads. The pads are done just like this, the rings folded inside. They are piled in sixes and either tied with string or wrapped together and then sterilized. All this goes on at this large table where all the nurses and attendants work at it and do these things. Now, one way that this needle could have gotten in is that in the course of the preparation of these pads at some previous time a needle may have gotten stuck or attached to the pad and it was not seen or noticed, and it was sterilized with the other pads, and then came on our table; so that it was a needle that was brought into the wound by the pad that was used in the wound, the needle having accidentally gotten stuck to the pad at some previous time. The other way in my opinion that it could have gotten in was that the nurse and the second assistant, who in this case was Dr. Freiden, were the two men who would pass sponges to us----

'Q. [By Mr. Home] Two people, you mean? A. [By Dr. Olch] Dr. Freiden usually passed to Dr. Shulman these sponges, and they are kept on this little Mayo tray where these needles are, and it is perfectly possible that as a sponge is quickly picked up and passed into the filed it may have picked up a needle with it, and when the sponge is used to pack off intestines, left in the wound in that manner.'

It is agreed that under the doctrine of res ipsa loquitur plaintiff made a prima facie case against respondents, Drs. Olch and Shulman. Respondents argue that Dr. Olch gave his opinion, as an expert, that the needle got into the abdominal cavity in one of two ways; and that the opinion was admissible to rebut the inference of negligence raised by the doctrine of res ipsa loquitur. The doctor did not assert that he observed any occurrence or heard any statement or thing that would indicate that a needle did stick to a pad or was picked up by a sponge. He did not state any fact as a foundation for his opinion. His opinion was not based upon any occurrence during the preparation of the pads, or during the operation, from which an expert in surgery or otherwise could properly form an opinion that while packages of pads were being prepared in the supply room a needle actually did stick to a pad, and later the pad (with the needle adhering thereto) was placed in the abdominal cavity; or that a needle was picked up, during the operation, by a sponge which was on the tray with the needle, and that the sponge (with the needle adhering thereto) was placed in the abdominal cavity. Such an opinion was in effect a statement that if any of the 50 nurses and attendants who helped prepare the pads in the supply room put a pad against a needle and the needle struck to the pad, and if that pad with needle attached were brought into the operating room, and if they were placed in the body, the needle could have or might have become detached from the pad while the pad was in the body; or if a sponge upon a tray in the operating room picked up a needle which was also on the tray, and if the sponge with the needle attached were handed by a nurse to Dr. Freiden, and if he handed them to Dr. Olch, and if Dr. Olch placed them in the body, it is 'perfectly possible' the needle could have or might have become detached from the sponge while it was in the body. There was no evidence herein that any such factual conditions existed. There was no basis for assuming such a hypothetical set of facts as a basis for such an expert opinion. If such an opinion were admissible in would seem that it would also be proper for a doctor, called as a witness by plaintiff, to testify (without any factual foundation for his opinion) that in his opinion it is 'perfectly possible' that Dr. Olch or Dr. Shulman could have or might have dropped a needle into the body while they were using the needle holders or clamps in handing needles back and forth above the body. Also if such opinion evidence were proper, it would seem that the best witness, in a case similar to this, would be one with the best imagination as to the various combinations of events that could or might 'possibly' cause a needle to be left in a body. The opinion herein of Dr. Olch was merely his conjecture as to how the needle could have or might have gotten into the abdominal cavity. It was prejudicial error to receive that evidence.

Said respondents (Drs. Olch and Shulman) also assert that in any event the evidence was sufficient to support the verdict on the theory that the jury found liability, but further found that plaintiff sustained no damage. They argue that there was substantial...