Cubit v. Ridgecrest Community Hospital

• Decision Date: 24 September 1987
• Citation: 194 Cal.App.3d 1552,240 Cal.Rptr. 346
• Court: California Court of Appeals Court of Appeals
• Parties: Michelle CUBIT et al., Plaintiffs and Appellants, v. RIDGECREST COMMUNITY HOSPITAL et al., Defendants and Respondents. F006263, F006487.

Page 346

240 Cal.Rptr. 346

194 Cal.App.3d 1552

Michelle CUBIT et al., Plaintiffs and Appellants, v. RIDGECREST COMMUNITY HOSPITAL et al., Defendants and Respondents.

F006263, F006487.

Court of Appeal, Fifth District, California.

Sept. 24, 1987.

Review Denied Dec. 16, 1987.

Anderson, Parkinson, Weinberg & Miller, Thomas T. Anderson, Indio, DeGoff and Sherman, Victoria J. DeGoff and Richard Sherman, Berkeley, for plaintiffs and appellants

[194 Cal.App.3d 1555] Clifford, Jenkins & Brown, John R. Szewczyk, Bakersfield, Bauer, Harris & McEvoy, John Patrick McEvoy, Santa Barbara, Ann G. Diener, Santa Clara, McGahan & Engle and Marsha Rutenbar, Ventura, for defendants and respondents.

OPINION

BEST, Associate Justice.

Plaintiffs appeal from a judgment dismissing their complaint pursuant to Code of Civil Procedure section 583, subdivision (a) (discretionary dismissal for failure to bring the action to trial within two years). ¹ Plaintiffs contend the trial court abused its discretion in dismissing their complaint. We agree and reverse the judgment.

FACTS

Arthel Cubit died on January 20, 1980, survived by his wife and 12 children who are the plaintiffs in this action. On January 19, 1981, plaintiffs filed a medical malpractice action in Kern County Superior Court against, among others, defendant Ridgecrest Community Hospital (Ridgecrest), defendants Drummond Medical Group, Inc., Dr. Ralph J. Langsjoen, Dr. Richard P. Karoll, and Dr. Vernon Shull (Drummond defendants), and defendant Dr. M.M. Clark.

Arthel Cubit had been hospitalized at Ridgecrest once in December 1979 and released. He was then readmitted on January 9, 1980, with a fever and jaundice and was diagnosed as having type A hepatitis. Cubit's consulting and treating physicians while at Ridgecrest, defendants Langsjoen and Shull and Dr. D.P. Welcome, diagnosed Cubit as having type A hepatitis, although the lab tests never confirmed it. Within 24 hours of Cubit's death on January 20, 1980, Dr. Langsjoen ordered an autopsy. Langsjoen testified in his deposition that he ordered an autopsy so quickly because he suspected that Cubit's problems may have been caused by some toxic substance.

Dr. Karoll, a pathologist, performed the first autopsy on Cubit's body. At the time Dr. Karoll performed the autopsy, he did not suspect there was a toxic cause to Cubit's disease process and did no toxicological studies. Dr. Karoll only had in mind that the clinicians at the hospital believed Cubit had died from hepatitis. Dr. Karoll determined that Cubit died because of acute hepatic necrosis of undetermined etiology. Basically, this means Cubit died because his liver was diseased and failed, but Dr. Karoll could not determine what caused the liver to become diseased in the first place. Dr. Karoll testified in his deposition that based on the autopsy, he could not rule out the possibility that Cubit had type A hepatitis as diagnosed by Cubit's treating physicians, but the acute nature of Cubit's liver failure and the devastating nature of his disease were not consistent with type A hepatitis.

Dr. Karoll also stated that he took tissue samples of all of Cubit's organs and made microscopic slides to study. He did not, however, keep any hair for analysis. Dr. Karoll further testified he removed the liver from Cubit's body during the autopsy but did not recall if he replaced it. If the liver was not replaced, it would have been pulverized or incinerated.

Because there was still suspicion that Cubit had died from exposure to a toxic substance (Cubit had been employed by the Kerr-McGee chemical plant), his body was turned over to the Kern County Coroner's office. On January 28, 1980, Dr. Ambrosecchia of the Kern County Coroner's office performed a second autopsy on Cubit's body. Dr. Ambrosecchia also concluded that Cubit had died due to liver failure, but he was equally unable to determine the cause.

Dr. Ambrosecchia testified in his deposition that he had a difficult time making any findings in his examination because not only had the body already been autopsied and the organs cut up, but the body had been embalmed by a mortuary. He testified that embalming changes the appearance of the organs, and in the process, powder is placed into body cavities making it difficult to find and identify specific tissues. He could not take sections of organs and preserve them himself because the organs had already been dissected. Basically, in his autopsy, he merely examined the tissue slides made by Dr. Karoll and apparently examined some liver sections that were sent by Dr. Karoll. (It is not clear whether Dr. Ambrosecchia examined the slides, the tissue samples or both.) Dr. Ambrosecchia also stated he was unable to do any toxicology studies because there was no blood or urine left with which to perform any such studies.

Although this autopsy was performed on January 28, 1980, Dr. Ambrosecchia's final determination from his studies was not reached until March 1980.

On March 27, 1980, William Kropach, an attorney, filed a workers' compensation claim against the Kerr-McGee Chemical Corporation in San Bernardino County on behalf of Cubit's heirs, plaintiffs in this case. The claim, which was filed before plaintiffs had any information from Cubit's hospital records or Dr. Ambrosecchia's autopsy, was based on the allegation that Cubit had died due to exposure to a toxic substance at work. On April 2, 1980, Kropach received a copy of Cubit's hospital records. The records appeared to affirm plaintiffs' belief that Cubit had been poisoned through work. Dr. Welcome reported in the records that Cubit's rapid downhill course indicated some sort of toxic reaction. Plaintiffs thereafter began pursuing their workers' compensation claim against Kerr-McGee in San Bernardino County.

On January 19, 1981, plaintiffs filed a complaint against defendants for medical malpractice to toll the statute of limitations. ² Plaintiffs had not yet received a copy of the coroner's autopsy report, although the report was requested as early as February 1980. While plaintiffs were pursuing their claim against Kerr-McGee, they also were attempting to procure the autopsy report from the Kern County Coroner's office. Kropach wrote to the Kern County Coroner's office on February 20, 1981, on July 29, 1981, and on February 15, 1982, to inquire about the report. Plaintiffs were only able to get the information by subpoenaing Dr. Ambrosecchia and taking his deposition on August 20, 1982.

On August 12, October 4 and October 12, 1982, plaintiffs consulted with Dr. Reuben Merliss. Dr. Merliss reviewed Cubit's hospital records and the autopsy reports of Drs. Ambrosecchia and Karoll. Dr. Merliss submitted three reports indicating that the initial autopsy performed by Dr. Karoll may have ruined chances of accurately determining the actual cause of death. Dr. Merliss also rendered the emphatic opinion that Cubit's death must have been caused by some toxic chemical at the Kerr-McGee plant.

On or about December 29, 1982, plaintiffs associated in the law firm of Thomas T. Anderson on the medical malpractice case in Kern County. On January 5, 1983, plaintiffs retained Dr. Lowell Somers, who reviewed the hospital records and doctors' reports regarding Cubit's stay at Ridgecrest. It was his opinion that Cubit probably died from a toxic substance rather than hepatitis type A.

On March 18, 1983, Dr. Somers and Don Manton, an investigator for the Anderson law firm, went to Ridgecrest to interview several witnesses. They learned from Dan Stubbert of the embalming practices of Hall & Lyons Mortuary and also learned of the first autopsy performed by Dr. Karoll.

On March 30, 1983, plaintiffs received information from Dr. Robert Weissman, hired by the Kerr-McGee chemical plant, that in his opinion, Cubit's death was not caused or hastened in any way due to his prior employment at Kerr-McGee.

On April 18, 1983, the Anderson law firm obtained a set of employment records of Mr. Cubit.

On July 6, 1983, Dr. Rene Modglin, working for plaintiffs, called Dr. Karoll requesting that Dr. Karoll turn over the slides made at the first autopsy. Dr. Modglin was informed he could not have the slides without a court order.

On August 26, 1983, plaintiffs obtained the expert consultation of Dr. Frederick Meyers to attempt to determine what agent caused the death of Cubit's liver. After reviewing Cubit's hospital records, the autopsy reports, and considering Cubit's employment in an industrial setting, Dr. Meyers opined that the agent was some type of toxin and possibly some form of chlorinated hydrocarbon.

On August 29, 1983, plaintiffs received in the workers' compensation case copies of the entire employment file of Cubit. Mr. Kropach then on or about October 17, 1983, noticed the taking of the depositions of Dr. Karoll and several employees of Kerr-McGee chemical plant, including Dr. Clark. On November 17, 1983, the depositions of Kerr-McGee employees Arzell Hall and Manuel Mata were taken in connection with the workers' compensation claim. Also on this date, Dr. Karoll's deposition was taken. Dr. Somers attended this deposition.

On November 29, 1983, plaintiffs received a copy of a report from yet another medical expert they had retained, Dr. William Metzger. Dr. Metzger informed Dr. Somers that upon reviewing Cubit's hospital records, Cubit had been placed on an around-the-clock regimen of Tylenol DS, despite all indications that Cubit had a hepatic dysfunction. In an impaired liver, Tylenol acts as a toxin, which causes hepatic necrosis. Metzger opined that whatever the initial cause of the liver dysfunction, the ill advised use of large doses of Tylenol on the patient played a significant role in the progressive hepatic necrosis and significantly lessened the patient's chances of survival.

Plaintiffs' first amended complaint for medical malpractice and intentional spoilage of evidence was filed on December 20, 1983, and served on defen...