Clemens v. Regents of University of California

• Decision Date: 25 May 1970
• Citation: 87 Cal.Rptr. 108,8 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth CLEMENS, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Donald B. Rochlin, M.D., William R. Blakely, M.D., Dr. Peter G. Gaal, and Dr. Charles Smart, Defendants and Respondents. Civ. 33204.

Page 108

87 Cal.Rptr. 108

8 Cal.App.3d 1

Kenneth CLEMENS, Plaintiff and Appellant, v. The REGENTS OF the UNIVERSITY OF CALIFORNIA, Donald B. Rochlin, M.D., William R. Blakely, M.D., Dr. Peter G. Gaal, and Dr. Charles Smart, Defendants and Respondents.

Civ. 33204.

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

May 25, 1970.

Rehearing Denied June 18, 1970.

Hearing Denied July 22, 1970.

Irving H. Green, Samuel Shore and William Strong, Los Angeles, for plaintiff and appellant.

Belcher, Henzie & Biegenzahn, and Robert D. Walker, Los Angeles for defendants and respondents The Regents of the University of California, Dr. Donald B. Rochlin and Dr. William Blakely.

Haight Lyon & Smith, and Henry F. Walker, Los Angeles, for defendant and respondent Dr. Peter G. Gaal.

Gilbert, Thompson, Kelly, Crowley & Jennett, James B. Crowley and Jean Wunderlich, Los Angeles, for defendant and respondent Dr. Charles Smart.

THOMPSON, Associate Justice.

Appellant, plaintiff in a medical malpractice action, has appealed from an adverse judgment given pursuant to a jury verdict. By reason of PEOPLE V. HUTCHINSON, 71 CAL.2D 342, 78 CAL.RPTR. 196, 455 P.2D 132,^A decided while this appeal was pending, we reverse with instructions to the trial court to hold a new hearing on appellant's motion for a new trial.

Facts

Viewed as it must be in the light most favorable to the verdict and judgment, the record discloses the following.

In June of 1958, a tumor about the size of a marble was excised from appellant's upper right arm by Dr. Kornblatt at Bay Cities Community Hospital. The tumor recurred higher on the arm. On August 4, 1961, when the tumor had grown to about 7 by 9 centimeters, it was again excised by Dr. Norcross at Gardena Hospital. Approximately three months later, the tumor reappeared, this time still further up the arm and extending into the armpit area. Dr. Norcross diagnosed the tumor as malignant. It was approximately the size of a baseball and appeared to be a fibrous tumor with strands or tentacles moving outward from the margin.

Dr. Norcross determined that his treatment of choice for the third recurrence of the tumor was a wide excision including the possibility of a forequarter amputation, the removal of the arm and the shoulder. Dr. Norcross, however, was unable to treat the third tumor because appellant could not afford private hospitalization. He therefore sent appellant to respondent U.C.L.A. Medical Center for a determination of what should be done and 'whatever treatment they felt would be proper.'

Appellant was admitted to the U.C.L.A. Medical Center Hospital on January 22, 1962, after prior examinations while he was in an out-patient status. Within the two-week period prior to admission, the rate of growth of the tumor increased. Dr. Gaal, one of the respondents, examined appellant on January 23. Gaal told appellant that a course of action would be decided upon after studies were made. Gaal and Dr. Smart, another of respondents, after study determined that the tumor should be excised and analyzed by a pathologist. They determined also that if the tumor proved malignant as suspected, they would make a further decision to merely close the wound, to perform the forequarter amputation, or to proceed with a new procedure of chemotherapy known as an isolation perfusion. Their determination of alternatives was based upon their examinations of appellant, the medical history of the tumors, and appellant's age, 60 years.

The operation upon appellant was scheduled for January 25. On January 24, Dr. Gaal visited appellant. Gaal told appellant that on the basis of evidence at hand the tumor was malignant and that it was capable of spreading and causing death. Gaal stated that in his judgment it would be inadvisable to simply re-excise a tumor which had already twice recurred, which was growing rapidly, and which, on clinical grounds, appeared to be quite malignant. He told appellant of the availability of the forequarter amputation, the removal of the arm and shoulder, and of the alternative technique of the isolation perfusion. Gaal told appellant that the forequarter amputation was an extremely incapacitating, mutilating procedure that he would recommend if there were no alternative. He informed appellant that there was another newer technique, the isolation perfusion. Gaal explained the isolation perfusion process in detail. He stated that the method involved the lowering of body temperature of the patient, the isolation of the blood supply to the portion of the body to be treated, the injection of toxic chemicals into the isolated portion, and the properties of the chemicals in destroying cells in general and tumor tissue in particular. Gaal told appellant that the isolation perfusion carried inherent risks including the possible risk of an inflammation in the artery which might result in the loss of the arm or some portion of it.

Appellant responded to Gaal's explanation by stating that he understood, that he was somewhat fearful, and that he agreed to proceed as Gaal had outlined. There is testimony which may or may not have been accepted by the jury ¹ that Dr. Smart told appellant in order to reassure him that perhaps Dr. Gaal had overemphasized the complications inherent in the isolation perfusion procedure.

In 1962 the isolation perfusion procedure was new but had ceased to be experimental. Dr. Smart had utilized the technique as early as 1959. He joined a perfusion team at the U.C.L.A. Medical Center on July 1, 1961. Isolation perfusions were performed there as a standard technique prior to the operation upon appellant.

The operation commenced as scheduled. Doctors Gaal and Smart were present as were Dr. Rochlin, Dr. Smart's superior on the perfusion team, Dr. Blakely, a fourth year resident in surgery, and Dr. Dillon, the anesthesiologist. Dr. Longmire, chief of surgery at the U.C.L.A. Medical Center and the supervisor of all the other doctors participating in the operation, was also present. The tumor was excised by Dr. Gaal. It was submitted to a pathologist for examination and a preliminary report based upon microscopic slides made from frozens sections of the excised tumor. Fifteen minutes after the tumor was submitted to him, the pathologist reported that, based upon the frozen section, the tumor appeared to be a myxosarcoma, a 'low grade malignant mesenchymal tumor' and that it might have been 'cleared,' i.e., removed, by the surgery. The frozen section report was, however, not conclusive as to the nature of the tumor and could not be completely accurate in its estimate that all tumor cells had been excised since tentacles or lesions may have remained which were not disclosed by the section. The frozen section report differed in its analysis of the type of tumor from reports of prior excisions which had described the tumor as showing elements of fibrosarcoma.

After receipt of the pathologist's report, the physicians participating in the operation were in disagreement as to the procedure to be followed. Based upon the report, a visual examination of the area from which the tumor had been removed and the clinical history, Dr. Gaal and Dr. Dillon, the anesthesiologist, were of the opinion that the surgery should be terminated. Drs. Smart and Rochlin, based also upon the report, visual examination and clinical history, concluded that the isolation perfusion was necessary. Dr. Longmire, the chief of surgery and the physician in ultimate control of the operation, determined that the isolation perfusion was necessary and ordered that it be performed. The decision to proceed with the chemotherapy was based upon the following factors: (1) the history, size, and location of the tumor indicated that any further recurrence would extend into the chest cavity and prove fatal; (2) the clinical history indicated that the tumor was becoming increasingly malignant; (3) Dr. Longmire's personal experience with tumors of the type here involved indicated a high incidence of recurrence; and (4) Dr. Longmire's personal experience with isolation perfusion indicated it was beneficial.

The isolation perfusion was performed. Chemicals were administered pursuant to a formula previously determined by Dr. Rochlin. Dr. Smart supervised the procedure. The actual injection of chemicals was performed under his direction by Nurse Schiner. The dosages of chemicals and the manner of their injection were proper. ² The isolation perfusion was completed.

Approximately one week after the surgery, appellant developed an inflammation of the artery. He also developed a blood clot in his right arm which was removed surgically on February 2. Appellant continued to have difficulty with the circulation in his right arm. Various procedures were employed to increase the blood flow. Ultimately, due to restricted circulation and gangrene, it was necessary to amputate the four fingers of appellant's right hand beyond the first joint. After the operation, appellant refused advice to exercise his arm and shoulder and to take physiotherapy.

Appellant filed the action which is now before us claiming damages in the amount of $500,000 for the amputation and restriction in use of his arm. After an extended trial, the matter was submitted to a jury which gave its verdict for the defendants (respondents). This appeal followed.

Issue on Appeal

In his brief, appellant contends: (1) the evidence establishes respondents' liability as a matter of law; (2) the trial court erred in not instructing on the doctrine of res ipsa loquitur, in denying other instructions requested by appellant, in modifying proposed jury instructions, and in giving instructions requested by respondents; (3) unspecified rulings and conduct of the trial judge denied appellant a fair trial; and (4) misconduct of a juror requires reversal of the judgment.

Sufficiency of the Evidence

Appellant contends that the evidence in the case at bench is insufficient to support ...