Cline v. Lund

• Decision Date: 20 April 1973
• Citation: 31 Cal.App.3d 755,107 Cal.Rptr. 629
• Parties: Kenneth CLINE, Individually, et al., Plaintiffs and Appellants, v. Anthony LUND and Community Hospital, Los Gatos-Saratoga, Defendants and Respondents. Civ. 30463.
• Court: California Court of Appeals Court of Appeals

Page 629

107 Cal.Rptr. 629

31 Cal.App.3d 755

Kenneth CLINE, Individually, et al., Plaintiffs and Appellants, v. Anthony LUND and Community Hospital, Los Gatos-Saratoga, Defendants and Respondents.

Civ. 30463.

Court of Appeal, First District, Division 4, California.

April 20, 1973.

As Modified on Denial of Rehearing May 18, 1973.

Hearing Denied June 13, 1973.

Bostwick & Rowe by Robert Burns Bostwick, Jr., Everett P. Rowe, San Jose, for plaintiffs and appellants, Mark, Andrew, Timothy and Paul Carlson by and through their guardian ad litem Paul Williams.

Tunney & Carlyle by Eric D. Carlyle, San Jose, for plaintiff and appellant, Kenneth Cline.

Edward A. Hinshaw, Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, San Jose, for defendant and respondent, Anthony Lund, M.D.

Hoge, Fenton, Jones & Appel, Inc. by John W. Appel, H. R. Lloyd, Jr., San Jose, for defendant and respondent, Los Gatos-Saratoga Community Hospital.

GOOD, ^* Associate Justice.

Appellants, surviving husband and four minor children of one Nancy Cline (hereinafter 'decedent'), appeal from a judgment in favor of Anthony Lund, M.D., and the Los Gatos-Saratoga Community Hospital, in an action for medical malpractice. A pivotal issue arises out of the trial court's refusal of conditional res ipsa loquitur instructions that appellants requested. Bearing in mind that one of the key issues herein is whether the trial court erred in refusing a conditional res ipsa loquitur instruction, there is substantial evidence to establish the following facts:

Decedent had a history of female problems. In early June 1967, her family physician, William Kuhlman, M.D., referred her to respondent Anthony Lund, M.D., a specialist in obstetrics and gynecology. Dr. Lund scheduled decedent for a diagnostic dilatation and curettage and frozen section with examination under anesthesia, and for an exploratory laparotomy with excision of a left ovarian cyst and possible hysterectomy, if warranted. ¹ Decedent entered the hospital on July 9, 1967. Her entrance examination revealed a blood pressure of 110/72 and a normal complete blood count. She was 29 and in general good health. She had borne four children and had one pregnancy that miscarried.

The surgery was on July 10, 1967, from 7:40 until 10:15 a.m. Based on the results of the frozen section and the exploratory laparotomy, and after inspection of decedent's pelvis, Dr. Lund did a total abdominal hysterectomy (removal of uterus and cervix) and left salpingo-oophorectomy (removal of left fallopian tube and left ovary). Dr. Lund determined that decedent had a chronic pelvic inflammatory disease and a resultant hydrosalpinx (puss mass in fallopian tube covered with water) requiring removal of the uterus. Louis Lichtenstein, M.D., who reviewed the pathology reports, testified that there was no chronic pelvic inflammatory disease, nor hydrosalpinx, and that the uterus should not have been removed. The left ovary was cystic. Contrary to Dr. Lichtenstein's findings, the pathologhy report from the hospital laboratory confirmed Dr. Lund's findings. According to those in attendance, the operation had proceeded uneventfully. Decedent lost between 350 cc and 400 cc of blood, not enough to warrant a transfusion. Except for a complaint of nausea at 10 p.m., decedent initially made normal post-surgical progress.

The next day, Teresa Michelson, M.D., the anesthesiologist, saw decedent at about noon. Decedent was alert and the two chatted briefly. Between 1:10 and 1:30 p.m., Dr. Kuhlman saw decedent propped up in bed, sipping a glass of liquid. Her eyes were open and blinking, but she did not respond to conversation. The doctor thought this strange but attributed it to an emotional state. At about 2:30 p.m., decedent was dangled from the side of her bed by a nurse. Although the nurse did not feel that decedent tolerated the dangling as well as she should have, the nurse wrote in the records that decedent tolerated the dangling fairly well. At 3:30 p.m., decedent regurgitated a large amount of emesis, which was described by the patient in the adjoining bed as of massive force and hitting the opposite wall. Thereafter decedent remained continuously unresponsive to verbal stimulation.

During this period, decedent's vital signs were monitored at approximately four-hour intervals. Her blood pressure, although still within normal limits, had been slowly but steadily rising. At 9 p.m., decedent's blood pressure was 142/90. The nurse's entry in the record indicates that decedent was then not responding to verbal stimulation, and, possibly, not to physical stimulation. The nurse was concerned and notified the nursing supervisor, who checked decedent. At about 9:40 p.m., Dr. Lund was notified and he arrived at the hospital shortly thereafter. Dr. Lund checked decedent at about 10:15 p.m. He suspected the possibility of an internal hemorrhage, although this is unusual where blood pressure is rising. There is evidence that ordinarily where there is internal hemorrhage, the blood pressure drops. ²

In order to check for hemorrhage, at 10:50 p.m. Dr. Lund ordered an immediate ('stat') complete blood count. Although the lab technician normally goes home at 11 p.m., neither the hospital nor the doctor phoned the lab about the 'stat' aspect of the blood count ordered. If notified, the lab technician would have remained at the hospital for the blood count. As a result, the 'on call' lab technician had to come to the hospital to run it. In his 10:50 p.m. orders, Dr. Lund also ordered that decedent's vital signs be monitored every half hour through the night because he wanted to know immediately of any change indicating hemorrhage. He also ordered that decedent's I.V. be kept open in case she needed a transfusion. Because he felt that there was nothing more for him to do until the results of the blood count were known and because he lived only 5--10 minutes from the hospital, Dr. Lund went home after rechecking decedent.

The nurse took decedent's blood pressure at 11:45 p.m. (55 minutes after the order to check it every half hour). Decedent's blood pressure had risen to 160/90. She had stiffened arms and legs and her right hand was tightly clenched. Instead of telephoning the doctor, which she could have done, the nurse called the night supervisor who came and looked at decedent. The night supervisor realized from the chart and from seeing decedent that the condition was critical. At 12:15 a.m. on July 12, 1967 (about half an hour after the critical signs had been observed by the first nurse) she phoned Dr. Lund and then told him both of decedent's condition and that the blood count showed internal bleeding. Dr. Lund ordered that decedent be transferred to the intensive care unit. While the night supervisor was on the phone to Dr. Lund, a nurse ran up and said that decedent's blood pressure had jumped to 230/130. By this time it was too late to give her a transfusion because of the danger of cerebral hemorrhage. Although the transfer to the intensive care unit would have taken about five minutes, the nurses testified that decedent was not moved because they were fearful she would regurgitate and aspirate the content en route. The intensive care unit has monitoring equipment and a respirator.

At 12:40 a.m., decedent's breathing ceased and she had a sudden drop in blood pressure. At 12:42 a.m., she had a cardiac arrest. Decedent was taken to the intensive care unit at 1:05 a.m. She was pronounced dead at 4:45 p.m. The autopsy revealed that the main cause of decedent's death was continuous hemorrhage at or about the operative site, with a blood loss of about 1,000 cc.

The following questions are posed:

1. Did the trial court err in refusing a conditional res ipsa loquitur instruction against respondents Dr. Lund and Los Gatos-Saratoga Community Hospital for its post-operative care and treatment of decedent?

In order for the doctrine of res ipsa loquitur to apply three conditions must be met: The injury must be of a nature which ordinarily does not occur in the absence of someone's negligence; the injury must have been caused by an agency or instrumentality in the control of a defendant; and, the injury must not have been due to any voluntary action or contribution on the part of plaintiff. ³ (Bardessono v. Michels (1970), 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 478 P.2d 480; Tomei v. Henning (1967), 67 Cal.2d 319, 322, 62 Cal.Rptr. 9, 431 P.2d 633; Seneris v. Haas (1955), 45 Cal.2d 811, 823, 291 P.2d 915; Ybarra v. Spangard (1944), 25 Cal.2d 486, 489, 154 P.2d 687.) In codifying the conditions wherein a conditional res ipsa loquitur instruction must be given, the Legislature in section 646 of the Evidence Code characterized the doctrine as a 'presumption affecting the burden of producing evidence' the effect of which is informatively discussed in Witkin's California Evidence (2d ed.) section 221, pages 200--201, section 264, pages 227--228. In effect, when the enumerated conditions are established, the plaintiff is protected from a defense directed verdict and the applied doctrine will support a finding of negligence. However, when a defendant, against whom the doctrine applies, produces evidence that he was not negligent or that, if he was, such negligence was not a proximate cause of plaintiff's injury, then a plaintiff is entitled under the mandate of said section 646 to a conditional res ipsa loquitur instruction. (Meier v. Ross General Hospital (1968), 69 Cal.2d 420, 424, 71 Cal.Rptr. 903, 445 P.2d 519; Clark v. Gibbons (1967), 66 Cal.2d 399, 412, 58 Cal.Rptr. 125, 426 P.2d 525; Quintal v. Laurel Grove Hospital (1964), 62 Cal.2d 154, 163--164, 41 Cal.Rptr. 577, 397 P.2d 161; Davis v. Memorial Hospital (1962), 58 Cal.2d 815, 817--819, 26 Cal.Rptr. 633, 376 P.2d 561.) The trial judge must, upon request, inform the jury that if it finds that facts giving rise to the doctrine are established it may find for the plaintiff but that,...