Carrasco v. Bankoff

• Decision Date: 16 September 1963
• Citation: 220 Cal.App.2d 230,33 Cal.Rptr. 673
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 A.L.R.2d 464 Gilbert Paul CARRASCO, a minor, by and through his Guardian ad Litem, Paul Carrasco, and Paul Carrasco, Individually, Plaintiffs and Respondents, v. Dr. George BANKOFF, Dr. William Novick, Carbil Hospital et al., Defendants and Appellants. Civ. 26949.

Page 673

33 Cal.Rptr. 673

220 Cal.App.2d 230, 97 A.L.R.2d 464

Gilbert Paul CARRASCO, a minor, by and through his Guardian ad Litem, Paul Carrasco, and Paul Carrasco, Individually, Plaintiffs and Respondents, v. Dr. George BANKOFF, Dr. William Novick, Carbil Hospital et al., Defendants and Appellants.

Civ. 26949.

District Court of Appeal, Second District, Division 1, California.

Sept. 16, 1963.

Kirtland & Packard and Judith O. Hollinger, Los Angeles, for appellants.

Harney, Drummond & Fitzwater, by David M. Harney and Robert E. Ford, Los Angeles, for respondents.

LILLE, Justice.

Plaintiffs sued Carobil Hospital, Dr. Novick, administrator, and Dr. Bankoff, chief surgeon, for negligence in the care and treatment of a minor for third-degree burns. Judgment for $35,000 in favor of Gilbert and $6,500 in favor of his father was entered on a jury verdict.

Indulging in an extensive factual argument which has no place in a reviewing court (Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 210 P.2d 757; Crawford v. Southern Pac. Co., 3 Cal.2d 427, 45 P.2d 183; Estate of Bristol, 23 Cal.2d 221, 143 P.2d 689) and devoting their briefs exclusively to those portions of the testimony favorable to them (Estate of Palmer, 145 Cal.App.2d 428, 302 P.2d 629; Goldring v. Goldring, 94 Cal.App.2d 643, 211 P.2d 342; Estate of Good, 146 Cal.App.2d 704, 304 P.2d 196), completely ignoring their burden to demonstrate that there is no evidence to support the judgment (Bradford v. Winter, 215 Cal.App.2d 448, 30 Cal.Rptr. 243; Nichols v. Mitchell, 32 Cal.2d 598, 197 P.2d 550; New v. New, 148 Cal.App.2d 372, 306 P.2d 987), appellants contend '* * * there is insufficient evidence that Dr. Bankoff failed to exercise that degree of care which the average reasonable physician would have exercised under similar circumstances' (A.O.B., p. 10), and, assuming his negligence, there is 'no evidence' that 'his negligent act, actually and proximately caused the damage.' (p. 23.) However, notwithstanding appellants' flagrant violation of settled practice in the reviewing courts, we have carefully examined the lengthly record before us keeping in mind the fundamental rule that the power of this court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, that will support the judgment, and when two or more inferences can reasonably be deduced from the facts, it is without power to substitute its deductions for those of the trial court (Wooten v. Coerber, 213 Cal.App.2d 142, 28 Cal.Rptr. 635; Brewer v. Simpson, 53 Cal.2d 567, 2 Cal.Rptr. 609, 349 P.2d 289; Gruner v. Barber, 207 Cal.App.2d 54, 24 Cal.Rptr. 292), and deem their contentions to be without substance.

The following is a re$sume$ of the evidence viewed in the light most favorable to respondents. (Crawford v. Southern Pac. Co., 3 Cal.2d 427, 45 P.2d 183; Estate of Arstein, 56 Cal.2d 239, 14 Cal.Rptr. 809, 364 P.2d 33.) On July 8, 1959, Gilbert then 6 years old, suffered extensive burns while playing Superman; 15 minutes later his mother delivered him to the emergency entrance of defendant hospital where Dr. Levonian, then in charge of the emergency room, administered to him. He was in serious condition; he had burns about the right side of the face, right arm, shoulder, ear and neck, and left arm, forearm, and wrist, and third-degree burns on the whole of his right arm and more than half of his chest and back; and, according to Dr. Levonian, 18% of his body was covered with third-degree burns. (Defendant Bankoff testified to 30%; however, his testimony appears to be influenced by the undisputed fact that after 53 days under his care the third-degree area had increased to 25%.) Dr. Levonian admitted Gilbert on an emergency basis to spend only the first few days in defendant hospital, but without previous arrangement with, or knowledge of, his parents, Gilbert, though severely burned and subject to infection, was transferred to a 10 or 12 bed ward in defendant hospital where he remained under defendant Bankoff's care for 53 days. The parents were told they would be liable for full hospital rates in addition to Dr. Bankoff's fee of $750; Dr. Levonian was under defendants' orders to refer the case to Dr. Bankoff, an employee of defendant hospital.

The ward was occupied by other children whose parents regularly visited them; defendants kept the back door and windows open; and one child suffered for three days with measles. Defendant hospital, a small community hospital, had not, in the memory of the witnesses, before treated a major burn case; it was not equipped to treat serious third-degree burns; its facilities included no isolation room for isolation and sterile technique and no recognized recovery room; and its lack of facilities prevented Gilbert from being placed in isolation and cared for with sterile technique and the 'open-method' treatment.

On the first day Gilbert slept and rested quietly; three days after admission he passed the critical stage, began 'to liven up a little bit and he looked a lot better,' and on the third day started watching television and played with his parents. According to Dr. Levonian, Gilbert developed no problems other than the burns themselves, never went into shock and had only minimal pain; he also testified that Gilbert's general condition did not prevent early grafting.

At no time during the 53 days under defendants' care were Gilbert's blood pressure, pulse or respiration taken or recorded or his weight ascertained or noted; defendant Bankoff made no record of the description of his burns or the depth of any particular burn; according to defendant Bankoff's letter of August 28, 1959, dressings were changed only every 12 days, then, under general anesthesia not administered by a doctor; no progress notes were made for the first 16 days and what records and notations were thereafter made were inaccurate, inadequate and incomplete (no mention was made of the surgery on August 6); Gilbert was given no particular formula or diet and no potassium tests; he was never fed by tube; no sodium, CO2, or electrolyte balance studies were done; no examination was ever made of Gilbert's heart, lungs, kidneys or vital organs; and he was never catheterized. Defendant Bankoff, who claims to be a specialist in the treatment of burns but who has never been certified by the American Board of Plastic Surgeons and has never treated a third-degree burn case in this State, saw Gilbert on June 11, the fourth day; he told Gilbert's mother that he would graft skin in small pieces which would eventually grow together in 'dichondra fashion.' However, no grafting was done until August 6, over four weeks after the burn; it was done by defendant Bankoff and was the one and only graft done during the 53 days Gilbert was under defendants' care. By that time contracture was already setting in; scar tissue formation had started as of July 24; and the graft was small, covering only 1% of Gilbert's third-degree area. With 'full-thickness' skin he took from Gilbert's uninjured right thigh he placed small pieces on the wrist of the right hand, three fingers of the left hand and the inner surface of the right elbow. The graft consisted of 'very small, postage stamp affairs' and 'not large enough * * * (and) not the right shape to prevent contractions,' and resulted in 'incomplete takes.' The graft at the elbow area was 'quite inadequate.' Defendant Bankoff did no more grafting; he did nothing on the major burn area. Moreover, in removing skin from Gilbert's thigh, defendant Bankoff took 'full-thickness' skin using the 'free-knife' method, which 'is passe$ and unacceptable in any Los Angeles hospital,' inflicting on the thigh another third-degree defect which later had to be covered by graft at Children's Hospital. While he denied using the 'free-knife' method (which depends entirely upon the skill of the knife wielder), insisted he used the electric dermatome mothod and denied he took 'full-thickness' skin (he admitted the graft 'was deeper than usual'), all experts agreed the skin was 'full thickness,' taken by the 'free-knife' mothod, which created a third-degree defect on Gilbert's thigh; further, defendant Novick testified that defendant hospital had no electric dermatome in its inventory when it was sold.

After the graft there was considerable bleeding of the thigh and a week later Gilbert began 'to go downhill'; he became very tired and thin, lost his appetite and began to lose a lot of weight, and his legs became very thin. Thereafter, he was several times prepared for further grafting but none was ever done. On the 52nd day Gilbert's father examined him; he 'couldn't see any graftings of any kind other than these little patches * * * couldn't see anything. The boy was still--there was no skin on him, you know.' Defendant Bankoff then told him Gilbert was being transferred to Children's Hospital because 'he didn't have enough facilities to do the grafting,' and didn't have all the equipment he needed; he also suggested to Gilbert's mother that he was transferring him to Children's Hospital 'because they had better facilities to take care of serious burns'; and on the 53rd day (August 30) he transferred Gilbert to Children's Hospital. Two days before, on August 28, defendant Bankoff wrote he was transferring him 'because of lack of facilities in this (defendant) hospital for treatment of such extensive burns'; and he admitted in his testimony that from the beginning of Gilbert's stay he felt that the facilities were inferior. During the 53 days in defendants' care Gilbert's third-degree area had increased from 18% to 25%, and defendant Bankoff had grafted but 1% of the burn area leaving 99% of it ungrafted and uncovered. Defendant Bankoff admitted that on July 24 Gilbert was ready for grafting, also on August 1, but none was done until August 6; he also testified that all third-degree burn areas should have been...