Contreras v. St. Luke's Hospital

• Decision Date: 21 March 1978
• Citation: 78 Cal.App.3d 919,144 Cal.Rptr. 647
• Court: California Court of Appeals Court of Appeals
• Parties: Solomon CONTRERAS, Plaintiff and Appellant, v. ST. LUKE'S HOSPITAL, Carl E. Borders, M.D., et al., Defendants and Respondents. Civ. 40461.

Page 647

144 Cal.Rptr. 647

78 Cal.App.3d 919

Solomon CONTRERAS, Plaintiff and Appellant, v. ST. LUKE'S HOSPITAL, Carl E. Borders, M.D., et al., Defendants and Respondents.

Civ. 40461.

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

March 21, 1978.

Hearing Denied May 18, 1978.

John E. Milonas, Arthur D. Dempsey, San Francisco, for plaintiff and appellant.

Crosby, Heafey, Roach & May by Robert K. Crawford, Oakland, for St. Luke's Hospital.

Hassard, Bonnington, Rogers & Huber, Glenn L. Allen, B. Thomas French, San Francisco, for Carl E. Borders, M.D.

CALDWELL, Associate Justice. ^*

Plaintiff Solomon Contreras brought an action for damages for medical malpractice against defendants St. Luke's Hospital and Carl E. Borders, M.D. The action was based on asserted negligence by defendants relating to surgery on plaintiff's knee and a post-operative knee infection. Plaintiff now appeals from a judgment in favor of both defendants made pursuant to an order of the trial court granting defendants' motions for nonsuit.

At trial plaintiff presented only three witnesses, namely, himself, his wife, and one medical witness, Etidal Tadros, M.D. who had been employed by the hospital as an intern but who did not participate in the operation. Various hospital records were received in evidence. The evidence, stated most favorably to plaintiff, is as follows:

On August 30, 1970, plaintiff fell while water skiing, twisting his leg and tearing the medial collateral ligament in his right knee. He went to the St. Luke's Hospital emergency ward that evening. X-rays disclosed no broken bones, but plaintiff was told to see a doctor. Plaintiff consulted four doctors, including Dr. Borders, and expressed a reluctance to have an operation, indicating that he would prefer to have a cast. All four of the doctors told plaintiff either that he had to have an operation or that it would be better to have an operation.

Plaintiff selected Dr. Borders to perform an operation. In discussing the matter before the operation, Dr. Borders told plaintiff that he would be able to leave the hospital in three days. Plaintiff would not have consented to surgery if hospitalization would last for more than one week. Both Dr. Borders and Dr. Gill, an associate of Dr. Borders, explained the complications of surgery to plaintiff including "the possibility of infection." Dr. Borders stated: "Oh, there is rarely an infection and this is one out of a hundred. . . . In one out of a hundred operations, infection was one of the complications. . . ." Plaintiff replied: "Doctor, you say it's one out of a hundred. Then I'm not going to be the one."

Plaintiff was admitted to St. Luke's on September 1, 1970, and he signed papers consenting to surgery and to the administration of anesthetics. The operation was performed by Dr. Borders at St. Luke's on September 3, 1970. The hospital records contain an "operative record" signed by Dr. Borders as of that date stating among other things that the medial collateral ligament "had detached itself from the undersurface of the superficial portion proximally . . .," that "(t)here was one small rent in the synovium just above the cartilage," that "(T)here was some significant tearing on anterior, medial, and posterior portions of this portion of the ligament; and it was completely separated from its proximal attachment," that these tears were all repaired, and that a "long-leg cast" going from his foot to his thigh was applied. Plaintiff remained in the hospital until October 13, 1970, when he was discharged on crutches.

The technical aspects of what occurred after the operation were evidenced solely by the hospital records and by the testimony of Dr. Tadros, who had no independent recollection of the events and who testified on the basis of her own notes and other portions of the hospital records.

On the second day after the operation plaintiff complained of severe pain in his knee, and he also complained of frequency of urination and burning urination. Dr. Gill, acting for Dr. Borders, had left instructions for the nurses to call the doctor on duty if plaintiff's temperature should rise. On September 5, 1970, plaintiff's temperature rose to 39.2 centigrade (average normal being 36.7 to 37.5), and Dr. Tadros was called, arriving two hours after the temperature rise. She did not see plaintiff before or after this one visit. Because of plaintiff's complaints and a prior urinary infection Dr. Tadros had the "impression," not a "diagnosis," of a possible wound infection or urinary tract infection, and she ordered that laboratory tests be made. As a result of this examination, considered together with negative laboratory test reports returned at a later date, Dr. Tadros concluded at trial that plaintiff had neither type of infection on September 5. Dr. Borders on September 6, 1970, entered a statement on the patient's history sheet to the effect that there was no evidence of infection of the knee and that the temperature "yesterday" was 100.4, probably due to "postoperative atelectasis which would not occur in more cooperative patient." On September 7 he noted: "Temp. 37.5 . . . urine culture not yet back, doubt any serious infection, cast windowed & no evidence of infection. . . ." and, in a later note that day, "urine culture neg. . . ."

On September 8 plaintiff's temperature was 38o C., and his knee was aspirated by Dr. Borders, i. e., fluid was withdrawn by use of a needle and syringe for testing. The liquid was cloudy and yellow. A smear test, apparently completed the same day, was negative.

On September 9 Dr. Borders wrote on the history sheet that plaintiff was very confused, refusing pain pills, and apparently having hallucinations. Dr. Tadros testified that she did not see any relationship between the hallucinations and the knee infection, that the knee infection was not "clinically apparent" on the 9th of September, and that to determine the cause of the hallucinations she would have to see what medications he was taking. Dr. Borders reported in his hospital "discharge summary" dated November 13, 1970, that plaintiff apparently had a reaction from his "Talwin," which caused the hallucinations. A hospital "medication" sheet shows that plaintiff had been given "Talwin" for pain on September 8 at 11:30 p. m.

On September 10, Dr. Borders wrote in the history sheet: "12 noon. Patient culture this a. m. now growing gram-positive bacteria. Knee aspirated 20 cc. cloudy fluid."

On that day plaintiff, with his consent, was taken to the operating room, incision was made under a general anesthetic, cloudy yellow fluid and fibrin clots were removed, the wound was irrigated, an input tube and an output suction tube were placed, and a new cast was applied. At this time no "gross pus" was found but the area was described as "infected," "infectious," and indicating "pyarthrosis." There is nothing to show that any of the prior repair work was altered.

The laboratory reported on September 11 that with respect to the knee fluid there was "gram-positive cocci identification pending," and on September 12 or 13 a further report was issued reading "Culture-Rare Hemolytic Enterococci." Dr. Tadros testified that, particularly because the cocci was "rare," it was normal for the laboratory to take extra time to identify the type. Dr. Tadros defined "enterococcus" as being a normal inhabitant in the bowel but a cause of infection if present in other areas such as in a knee wound.

With the possible exception of a very minor urinary tract infection on September 17, which, according to Dr. Tadros, was entirely different from the enterococci in the wound, there is nothing to indicate that anything unusual took place between September 10 and the date of plaintiff's discharge from the hospital. When Dr. Tadros was asked whether it was usual for a person to remain in the hospital so long after an operation for a torn ligament she replied, "This man had an infection." She also testified repeatedly that in her opinion the required standards of care were met in this case.

The testimony of plaintiff as to the events in the hospital is in large part consistent with the evidence set forth above. Plaintiff was uncertain as to the dates when some of the things took place. The doctor saw him every other day, but there were five or six days in which the cast was completely closed and there was no way to check the wound. He was sleeping a lot because of the pills, couldn't recognize anybody, and did not know whether the doctor came or not. Upon his complaints of pain the doctor at first refused to loosen the cast but finally did so at plaintiff's request, but this didn't help much and the pain continued. He kept calling for the doctor, but he didn't see the doctor, the nurses kept giving him pills, and he started getting hallucinations. Plaintiff complained to his wife, and both of them threatened to dismiss Dr. Borders and to leave the hospital. At one time there was a guard on plaintiff's door to be sure he could not go out. He had an ingrown toenail that was hurting him, he called the nurses but nobody helped him, and finally he called his wife, who cut the nail for him. After the second operation the fever went down and plaintiff was getting relief. It was a long time after the cast was removed before he could move his knee.

After plaintiff was released he asked Dr. Borders what caused the infection, and Borders said: "Well, it's either three things: Either a glove or a tool that wasn't well sterilized or a defective mask and one of the persons that was operating breathed into it." At some time after plaintiff left the hospital, Dr. Borders and another doctor told plaintiff he needed another operation.

Plaintiff's wife also testified as to some of the things related by plaintiff. In addition she testified that on one occasion she asked a nurse to remove a bedpan that plaintiff was using, which was smelling terribly, that the nurse...