Clark v. Gibbons

• Court: California Supreme Court
• Writing for the Court: PETERS; TOBRINER; TRAYNOR; McCOMB
• Citation: Clark v. Gibbons, 66 Cal.2d 399, 58 Cal.Rptr. 125, 426 P.2d 525 (Cal. 1967)
• Decision Date: 21 April 1967
• Parties: , 426 P.2d 525 Eunice D. CLARK, Plaintiff and Respondent, v. Harold M. GIBBONS, Carl Horn et al., Defendants and Appellants. Sac. 7742

Page 125

58 Cal.Rptr. 125

66 Cal.2d 399, 426 P.2d 525

Eunice D. CLARK, Plaintiff and Respondent, v. Harold M. GIBBONS, Carl Horn et al., Defendants and Appellants.

Sac. 7742.

Supreme Court of California

April 21, 1967.

Rehearing Denied May 17, 1967.

Peart, Baraty & Hassard, San Francisco, Wilke, Fleury & Sapunor, Sacramento, Richard G. Logan, Oakland, Hanna & Brophy, Donald R. Brophy, San Francisco, Eugene A. Biglow, Fresno, for defendants and appellants.

Jack H. Werchick and Arne Werchick, San Francisco, for plaintiff and respondent.

PETERS, Justice.

Plaintiff Eunice Clark brought this action against Dr. Selmants, an anesthesiologist, Dr. Gibbons and his partner Dr. Horn, orthopedic surgeons, and Sutter Community Hospital of Sacramento for damages for injuries resulting from an operation allegedly negligently performed in Sutter Community Hospital by Drs. Gibbons and Selmants. The jury returned verdicts of $27,500 against all of the doctors and exonerated the hospital. ¹ Motions for a new trial were denied, and the doctors have appealed from the judgment.

Defendants' contentions are that the verdicts are not supported by sufficient evidence of negligence, and that the trial court committed reversible error by giving conditional res ipsa loquitur instructions. Both contentions are unsound.

It must be kept in mind that in determining whether sufficient evidence of negligence was adduced against the doctors, ² the power of an appellate court begins and ends with a finding that the record contains some substantial evidence, contradicted or uncontradicted, which supports the conclusion reached by the jury. The record must be read in the light most advantageous to the plaintiff. All conflicts must be resolved in her favor; and all legitimate and reasonable inferences must be indulged in to uphold the verdict, if that is possible. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183.)

The record discloses that on October 30, 1960, at approximately 2 p.m., plaintiff Eunice Clark, who was 41 years old, obese and in good health, suffered a fractured right ankle when she slipped and fell on a waxed floor in her home. She was taken by ambulance to the Sutter Community Hospital and examined by her physician Dr. Smith. After viewing X-rays of the fracture, Dr. Smith told her that it was a case for an orthopedic surgeon. Mrs. Clark requested the services of Dr. Gibbons who had previously treated her husband and who happened to be in the hospital at that time. Dr. Gibbons determined from viewing the X-rays that plaintiff had a severe trimalleolar fracture of the right ankle and that an open reduction, i.e., reduction by surgery, should be performed as soon as possible. He informed plaintiff that he would prefer to operate that night since the ankle would be stiff by the next morning. Plaintiff agreed.

Dr. Selmants, one of the anesthesiologists on the hospital staff, undertook to administer the anesthesia. Plaintiff gave the doctor a preanesthesia history which revealed that she had eaten between 1 and 2 p.m. Dr. Selmants believed that a general anesthetic should not be given to one who had eaten in the 12 hours preceding surgery, and that a general anesthetic was dangerous for a patient who had eaten within six or seven hours of surgery. Dr. Selmants concluded that plaintiff was not a safe subject for a general anesthetic. He told plaintiff that she should be given a spinal anesthetic, and she agreed to a spinal, although she said that she would prefer a general. Dr. Gibbons concurred in the decision to give a spinal.

Dr. Selmants selected the agent to be used for the spinal. He testified that it was the anesthesiologist's duty to know the time required for surgery and that he did not ask Dr. Gibbons how long the operation would take, because he knew from previously working with Dr. Gibbons that the surgeon averaged two hours for usual reductions of this kind. This case was not unusual, he believed, and would accordingly require two hours. The agent that Dr. Selmants chose was 10 milligrams of pontocaine. It was designed to maintain a level of T--10 for two hours plus or minus 15 minutes, and it was predictable in intensity and duration.

Dr. Gibbons testified that plaintiff's fracture was severe, and that he expected the operation to take from two to three hours. The anesthesiologist said that the anesthesia he selected could not be used unmodified for surgery of from two and a half to three hours, but that by adding epinephine to the pontocaine, he could have produced an agent with a predictable duration of over four and a half hours.

Prior to surgery plaintiff was nervous and anxious. She was not more upset however than any other person with an ankle injury and she was calmed by injections of vistaril and nembutal and taken into surgery at approximately 8 p.m.

Dr. Selmants then administered the spinal anesthetic and made pinprick tests to assure that the proper level of anesthesia had been achieved. After the anesthesia was injected and the numbness started up her legs, plain tiff felt that she could not breathe and her voice became squeaky. Dr. Selmants stated that a patient should not suffer from shortness of breath at a level of T--10, and that plaintiff's difficulty in breathing could have been 'some undue effect (from) the way the anesthetic was given.'

When the anesthesia reached the level necessary for surgery, Dr. Gibbons commenced the operation. The level of anesthesia remained adequate at first; but after about one hour the doctors noticed from plaintiff's unconscious movements that the anesthesia was beginning to wear off. At this point Dr. Gibbons had completed all of the reduction except for reduction of the posterior fragment of the tibia. Dr. Selments believed that 20 minutes more were needed to complete the operation, but Dr. Gibbons testified that no less than another hour would have been required.

Dr. Selmants could have extended the surgical anesthesia without harm to the patient. He stated that intravenous demerol could have been used for that purpose and that there was no particular reason not to use it, although the extension obtained might still have been insufficient to complete the operation. Also, another spinal could have been given. Dr. Gibbons stated that he did not think that plaintiff 'would have been up to' another spinal and that in turning her for the spinal all the prepping and draping would have to be undone and this might subject her to a risk of infection.

In any event, the operation was terminated, the incision was closed, and a cast was applied to plaintiff's ankle in an attempt to reduce the posterior fragment by external pressure. Dr. Gibbons' operative report mentioned that the operation was not completed because the anesthetic did not last for the required length of time. Dr. Selmants failed to note those facts, although he was supposed to make an accurate report of how the anesthesia proceeded with relation to the needs of the operation.

The decision to terminate surgery was made primarily by Dr. Gibbons. He was in control of the surgery and could have asked for an extension of the anesthesia. He had stated in his deposition that he became upset when the anesthesia began to wear off and that he did not consult with Dr. Selmants about extending the anesthesia but just said 'I think we will quit for tonight and do this another time.' At the trial, however, both he and Dr. Selmants testified that they discussed the question whether the anesthesia should be continued or the operation terminated and that Dr. Selmants agreed with the decision to terminate.

Dr. Gibbons testified that, when he made the decision to terminate, he expected to complete the operation later, but did not do so because blebs, infected blisters of the skin, developed; that it was very common for blebs to accompany an injury of this nature, that plaintiff's blebs healed at the normal rate, but that healing of blebs at the normal rate did not permit a second operation within the time when a second operation would have been of any value.

Three days after the operation Dr. Gibbons noticed that the posterior fragment had slipped back to some extent and that another open reduction was required. A second operation could not be performed, however, because pressure and resultant swelling, as pointed out, had caused blebs, which presented a serious risk of infection if the skin were cut.

Dr. Gibbons charged plaintiff less than the normal operating fee because his operation was unsuccessful. She now suffers from osteoarthritis in the ankle joint, which is painful. The arthritis might have resulted from the fracture even if a perfect union had been achieved. However, there is expert testimony that the chances of getting arthritis were increased by the failure to achieve a complete reduction; and the defendants do not claim that the evidence is insufficient to show that the arthritis was due, at least in part, to the failure to complete the operation.

Nothing but a fusion, which would impair the ankle's up and down movement, could now give plaintiff a pain free ankle. Dr. Gibbons' partner, Dr. Horn, offered to fuse the ankle for a token fee of $100.

Plaintiff's position is that the jury received sufficient evidence to find that the imperfect reduction causing the present injury was the result of (1) the negligence of Dr. Selmants in selecting and administering an anesthetic which wore off before the operation was completed and (2) the negligence of Dr. Gibbons in (a) not informing Dr. Selmants that the operation might well take longer than the two hours which Selmants expected the operation to take and (b) terminating the operation prematurely rather than ordering an extension of the anesthesia.

The evidence upon which plaintiff primarily relies to show negligence in the selection or administration of the anesthetic is the following testimony of Dr. Selmants:

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