Cavero v. Franklin General Benev. Soc.
| Decision Date | 31 October 1950 |
| Citation | 36 Cal.2d 301,223 P.2d 471 |
| Court | California Supreme Court |
| Parties | CAVERO v. FRANKLIN GENERAL BENEV. SOC. S. F. 18155 |
Hadsell, Sweet, Ingalls & Murman and Sydney P. Murman, San Francisco, for appellant.
Hallinan, MacInnis & Zamloch, James Martin MacInnis and William F. Cleary, San Francisco, for respondent.
In this action for the wrongful death of plaintiff's three-year old son the jury returned a verdict in favor of plaintiff and against defendant Franklin General Benevolent Society, 1 a corporation (hereinafter termed the hospital), and against plaintiff and in favor of defendants Dr. Nellie B. Null and Dr. John Null. 2 Judgment was entered accordingly, and the hospital appeals.
It appears that on the morning of July 5, 1946, plaintiff's son entered defendant hospital for the purpose of having his tonsils and adenoids removed by the Drs. Null. During the operation the anesthetic, which was gas and ether, was administered by a nurse-anesthetist. The patient started to come out of the anesthetic on two or three occasions and the anesthetist administered more ether. After the third increase in ether Dr. John Null noticed that the blood in the patient's throat was dark, which indicated that something was wrong, and he also then found that breathing had ceased. He thereupon began to apply manual artificial respiration, while the anesthetist left the room to secure a mechanical resuscitafor. She returned with a resuscitator three or four minutes later but neither it nor other means used was successful in preserving or restoring life to the child.
As grounds for reversal, defendant hospital contends that:
1. plaintiff failed to prove certain material allegations of his complaint;
2. the judgment rests on the doctrine of respondeat superior, based on the erroneous theory that the anesthetist was an employee of defendant hospital;
3. the trial court erred to the prejudice of the hospital in the giving of certain instructions, particularly instructions proposed by the defendant doctors relative to the doctrine of res ipsa loquitur.
The evidence, which must be viewed on appeal in a light most favorable to respondent (Estate of Bristol (1943), 23 Cal.2d 221, 223, 143 P.2d 689), may be summarized as follows:
The child was taken to defendant hospital at the suggestion of defendant Dr. Nellie B. Null, who had previously examined him. The child's mother paid a fee to the hospital for use of the operating room and for the anesthetic.
The patient's tonsils were moderately enlarged and inflamed but were not in an acute condition; the operation was not an unusual case or an emergency nor did it involve major surgery. When the child was brought into the operating room he had already been placed in an 'intermediate' or 'preliminary anesthetic state' after he was placed on the operating table further ether was administered, first through a mask by drops, and later 'by tube, by gas, causing the ether to bubble through tubes.'
Dr. John Null, who is the son of Dr. Nellie B. Null, testified that 'bubbling ether through that tube while the child continues unconscious * * * is a constant process, constantly watched, and varies in degree of how fast the bubbling occurs * * * (A) great amount of discretion (is) necessary in the administration of that ether through the tube * * * Unless the proper amount is given the child would not stay in the proper stage of anesthesia, and if it bubbles too slowly he will probably awake and be turning, and if it is given too fast, if he breathes it too fast it is apt to stop his heart * * * (T)here is a grave danger which may well occur if the ether is sent too rapidly in the form of bubbles through that tube'; the witness further stated that ether ; the witness attributed 'that return of the reflex action to * * * too little ether being administered' and 'two or three times' he or his mother asked the anesthetist to administer more ether, which she did 'By opening the shutoff valve so as to let the flow of oxygen increase'; the witness further stated that it was 'unusual for this child to awaken to the extent * * * described * * * occasionally it happens, but it is not supposed to * * * This child had no unusual tolerance for ether' and the witness did not know of 'any reason to expect those reflexes to return during the course of the operation.'
While the child was 'in the depths of anesthesia' Dr. Nellie Null started to remove the tonsils and Dr. John Null assisted by swabbing and using 'the suction * * * a mechanical device * * * to pull the blood, mucous and phlegm out of the throat'; just after the second tonsil was removed and after the third increase in anesthesia he noticed the 'blood was extremely dark * * * (which) means there has not been a proper oxygen supply, and either the child is too sound asleep and not sleeping (sic) enough * * * and I called to the anesthetist about it * * * (The) anesthetist usually watches the blood, the flow and color * * * (which) shows whether the child is breathing properly or not, and not asleep' and the witness assumed 'she was doing this.' At the same time he 'also looked up at the child and I didn't see any respiration, which also told me there was something wrong * * * (The anesthetist) apparently hadn't noticed it * * * (It is my) opinion the anesthetist gave too much ether to the child * * * More than indicated by the circumstances * * * (and) that was the cause of the darkening of the blood * * * (W)hen that kind of danger takes place * * * the anesthetist usually immediately stops the flow of ether and artificial respiration is immediately instituted * * * This time I turned the suction over to my mother and (began giving artificial) respiration * * * with my hands, but the best way is by a mechanical resuscitator, which applies carbon dioxide and oxygen into the lungs * * * the very best procedure is to apply the * * * resuscitator * * * at once * * * (W)hile I was giving manual respiration I called for the resuscitator.' The machine was not in the room and the anesthetist left the room and returned with it three or four minutes later; meanwhile artificial respiration was continued. Dr. John Null testified that he did not think that at that time The resuscitator was used but failed to revive the child, and both doctors were of the opinion the child had died by the time the machine was brought into the room, and that the death resulted from an overdosage of ether by the anesthetist; Dr. John Null also testified that in his opinion a competent anesthetist would not 'make a mistake of that kind,' and Dr. Nellie Null stated that she had performed 'hundreds of these tonsillectomies' since she had first been licensed to practice in 1906 and this was 'the first case in which a death has ever occurred in one of' them. The doctors further testified that 'it is up to the anesthetist to put the child to sleep, that is her job' and it was her duty if she sees the patient 'moving around, to get him under so we can proceed.'
The doctors stated also that the mechanical resuscitator was 'standard equipment for hospital surgery rooms' which 'we expect * * * to be present in any kind of an operation,' and it 'should be immediately available, * * * it is not always present right in the room, but should be there or close by.' A doctor would normally 'expect to find it in the room, although it is not always there.' The hospital stipulated that 'it is standard practice in the hospitals in San Francisco to have a resuscitator available for use in the operating rooms.'
A coroner's autopsy report indicated that the child's death was caused by 'inspiration of hemorrhagic material.' The doctors testified that it was necessary to cease using the suction device in order to apply artificial respiration and that artificial respiration would have forced such material into the lungs.
Concerning the employment of the anesthetist the doctors testified that the hospital, rather than the doctor, provides the nurses, the anesthetist, the operating room, table, and instruments and 'everything for the operation' and that the doctors did not select nor pay the fee of the anesthetist who worked in this case. Dr. John Null also stated that he did not employ the anesthetist and was not present 'at any conversation in which' his mother employed her. Mrs. Stevenson, an employe of defendant...
To continue reading
Request your trial
-
Voss v. Bridwell
...and text authorities on the application of the doctrine of res ipsa loquitur in medical malpractice cases see Cavero v. Franklin etc. Benevolent Soc., 36 Cal.2d 301, 223 P.2d 471; Salgo v. Leland Stanford, etc., Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170; Maki v. Murray Hospital, 9......
-
Toogood v. Rogal
...so as to raise an inference of negligence." Id. at 789, 91 Cal.Rptr. 760, 478 P.2d at 485, quoting Cavero v. Franklin General Benevolent Society, 36 Cal.2d 301, 309, 223 P.2d 471, 476 (1950). ¶ 10 The Bardessono Court noted Hardly a man, woman or child (even those of tender age) exists in t......
-
Walker v. Distler
...P.2d 441; Dierman v. Providence Hospital, 31 Cal.2d 290, 188 P.2d 12; Hurt v. Susnow, Cal.App., 192 P.2d 771; Cavero v. Franklin General Benev. Soc., 36 Cal.2d 301, 223 P.2d 471; Zentz v. Coca Cola Bottling Co., 39 Cal.2d 436, 247 P.2d 344; Costa v. Regents of University of California, 116 ......
-
Clark v. Gibbons
...337, 372 P.2d 97; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 817, 26 Cal.Rptr. 633, 376 P.2d 561; Cavero v. Franklin Gen. Benef. Soc. (1950) 36 Cal.2d 301, 309, 223 P.2d 471.) A showing that such an accident rarely occurs does not justify an inference of negligence without a further s......