Cobbs v. Grant

• Citation: 104 Cal.Rptr. 505,502 P.2d 1,8 Cal.3d 229
• Decision Date: 27 October 1972
• Docket Number: S.F. 22887
• Court: California Supreme Court
• Parties: , 502 P.2d 1 Ralph COBBS, Plaintiff and Respondent, v. Dudley F. P. GRANT, Defendant and Appellant. In Bank

Page 505

104 Cal.Rptr. 505

8 Cal.3d 229, 502 P.2d 1

Ralph COBBS, Plaintiff and Respondent, v. Dudley F. P. GRANT, Defendant and Appellant.

S.F. 22887.

Supreme Court of California,

In Bank.

Oct. 27, 1972.

McNamara, Lewis & Craddick, Marrs A. Craddick, Walnut Creek, and Richard G. Logan, Oakland, for defendant and appellant.

Bonne, Jones & Bridges, Frederick O. Field, Los Angeles, Home & Clifford, North Hollywood, Kirtland & Packard, Overton, Lyman & Prince, Robert F. Lewis, Los Angeles, James K. Barnum, Stammer, McKnight, Barnum, Bailey & Barnett, Fresno, Leighton M. Bledsoe, Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, J. Thomas Crowe, Crowe, Mitchell & Crowe, Visalia, Lewis Fenton, Hoge, Fenton, Jones & Appel, Monterey, Howard Hassard, Hassard, Bonnington, Rogers & Huber, San Francisco, Edwin Heafey, Sr., Crosby, Heafey, Roach & May, Oakland, Robert L. Lamb, Lamb & Glynn, San Francisco, Raymond A. Leonard, Leonard & Lyde, Oroville, W. Lee Pope, Wycoff, Parker, Boyle & Pope, Watsonville, Sherman C. Wilke, Wilke, Fleury, Sapunor & Hoffelt, Sacramento, and Russell Bruno, Oakland, amici curiae on behalf of defendant and appellant.

William Shannon Parrish, and George Hauer, Oakland, for plaintiff and respondent.

Hillel Chodos, Beverly Hills, Robert E. Cartwright, San Francisco, Edward I. Pollock, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Joseph W. Cotchett, San Mateo, Herbert Hafif, Claremont, and

Leonard Sacks, Pico Rivera, amici curiae on behalf of plaintiff and respondent.

MOSK, Justice.

This medical malpractice case involves two issues: first, whether there was sufficient evidence of negligence in the performing of surgery to sustain a jury verdict for plaintiff; second, whether, under plaintiff's alternative theory, the instructions to the jury adequately set forth the nature of a medical doctor's duty to obtain the informed consent of a patient before undertaking treatment. We conclude there was insufficient evidence to support the jury's verdict under the theory that defendant was negligent during the operation. Since there was a general verdict and we are unable to ascertain upon which of the two concepts the jury relied, we must reverse the judgment and remand for a new trial. To assist the trial court upon remand we analyze the doctor's duty to obtain the patient's informed consent and suggest principles for guidance in drafting new instructions on this question.

Plaintiff was admitted to the hospital in August 1964 for treatment of a duodenal ulcer. He was given a series of tests to ascertain the severity of his condition and, through administered medication to ease his discomfort, he continued to complain of lower abdominal pain and nausea. His family physician, Dr. Jerome Sands, concluding that surgery was indicated, discussed prospective surgery with plaintiff and advised him in general terms of the risks of undergoing a general anesthetic. Dr. Sands called in defendant, Dr. Dudley F. P. Grant, a surgeon, who after examining plaintiff, agreed with Dr. Sands that plaintiff had an intractable peptic duodenal ulcer and that surgery was indicated. Although Dr. Grant explained the nature of the operation to plaintiff, he did not discuss any of the inherent risks of the surgery.

A two-hour operation was performed the next day, in the course of which the presence of a small ulcer was confirmed. Following the surgery the ulcer disappeared. Plaintiff's recovery appeared to be uneventful, and he was permitted to go home eight days later. However, the day after he returned home, plaintiff began to experience intense pain in his abdomen. He immediately called Dr. Sands who advised him to return to the hospital. Two hours after his readmission plaintiff went into shock and emergency surgery was performed. It was discovered plaintiff was bleeding internally as a result of a severed artery at the hilum of his spleen. Because of the seriousness of the hemorrhaging and since the spleen of an adult may be removed without adverse effects, defendant decided to remove the spleen. Injuries to the spleen that compel a subsequent operation are a risk inherent in the type of surgery performed on plaintiff and occur in approximately 5 percent of such operations.

After removal of his spleen, plaintiff recuperated for two weeks in the hospital. A month after discharge he was readmitted because of sharp pains in his stomach. X-rays disclosed plaintiff was developing a gastric ulcer. The evolution of a new ulcer is another risk inherent in surgery performed to relieve a duodenal ulcer. Dr. Sands initially decided to attempt to treat this nascent gastric ulcer with antacids and a strict diet. However, some four months later plaintiff was again hospitalized when the gastric ulcer continued to deteriorate and he experienced severe pain. When plaintiff began to vomit blood the defendant and Dr. Sands concluded that a third operation was indicated: a gastrectomy with removal of 50 percent of plaintiff's stomach to reduce its acid-producing capacity. Some time after the surgery, plaintiff was discharged, but subsequently had to be hospitalized yet again when he began to bleed internally due to the premature absorption of a suture, another inherent risk of surgery. After plaintiff was hospitalized, the bleeding began to abate and a week later he was finally discharged.

Plaintiff brought this malpractice suit against his surgeon, Dr. Grant. The action was consolidated for trial with a similar action against the hospital. The jury returned a general verdict against the hospital in the amount of $45,000. This judgment has been satisfied. The jury also returned a general verdict against defendant Grant in the amount of $23,800. He appeals.

The jury could have found for plaintiff either by determining that defendant negligently performed the operation, or on the theory that defendant's failure to disclose the inherent risks of the initial surgery vitiated plaintiff's consent to operate. Defendant attacks both possible grounds of the verdict. He contends, first, there was insufficient evidence to sustain a verdict of negligence, and, second, the court committed prejudicial error in its instruction to the jury on the issue of informed consent.

I

Defendant's attack on the sufficiency of the evidence relates to the state of the medical testimony. Three experts testified at the trial: defendant, Dr. Sands, and defendant's expert, Dr. Yates. No expert witness was produced by plaintiff. The three experts were consistent in the opinion that the decision to operate as well as the actual procedure evidenced due care. Thus defendant insists that if experts unanimously opine that the defendant exercised due care, the jury may not substitute its judgment and find negligence. (Sinz v. Owens (1949) 33 Cal.2d 749, 753, 205 P.2d 3; Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1, 11, 87 Cal.Rptr. 108; Marvin v. Talbott (1963) 216 Cal.App.2d 383, 385, 30 Cal.Rptr. 893.)

Plaintiff contends the jury could reach a conclusion contrary to that of the experts because the decision to operate on his duodenal ulcer comes under the recognized exception to the need for medical testimony: the facts present a medical question resolvable by common knowledge. (Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519; see cases collected in Bardessono v. Michels (1970) 3 Cal.3d 780, 789, fn. 6, 91 Cal.Rptr. 760, 478 P.2d 480.) Where a shoulder is injured in an appendectomy (Ybarra v. Spangard (1944) 25 Cal.2d 486, 154 P.2d 687), or a clamp is left in the abdomen (Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 305 P.2d 36), expert testimony is not required since the jury is capable of appreciating and evaluating the significance of such events. However, when a doctor relates the facts he has relied upon in support of his decision to operate, and where the facts are not commonly susceptible of comprehension by a lay juror, medical expert opinion is necessary to enable the trier of fact to determine if the circumstances indicated a need for surgery.

The record before us requires this case to be governed by the general rule. An X-ray examination of plaintiffs' stomach disclosed 'There is extreme irritability of the duodenal bulb within which on two films is a faint collection of barium (swallowed by plaintiff for the purposes of this test) consistent with a very tiny active duodenal ulcer.' Since it was a 'very tiny' ulcer, and since conversely, the ulcer was 'active' and had produced 'extreme irritability,' only an expert would be capable of understanding whether surgery was immediately necessary for plaintiff's wellbeing. Similarly there was uncontradicted testimony that although plaintiff had ceased to experience pain rhythmically, continuous pain indicated the ulcer was penetrating the wall of the duodenum. If all five layers of the duodenum are penetrated a patient can bleed profusely and emergency surgery is essential to save his life. Again only an expert can appreciate the significance of the constant pain and whether surgery was indicated therefor. Finally there was evidence plaintiff's stools were dark and tarry. While the lay mind is unable to draw any conclusion from such evidence, to a doctor this is additional confirmation of a penetrating ulcer. Under such circumstances the common knowledge exception to the need for expert medical testimony is not applicable.

A fortiori, plaintiff's theory of negligence in the performance of the surgery is not sustainable under the common knowledge exception when, under these circumstances, there is uncontradicted expert testimony the operation had been performed with due care. Even with the exercise of due care the spleen may be injured during operations similar to that performed on plaintiff approximately 5 percent of the time, due to the need to mechanically retract the...