Czubinsky v. Doctors Hospital

• Decision Date: 24 January 1983
• Citation: 188 Cal.Rptr. 685,139 Cal.App.3d 361
• Court: California Court of Appeals Court of Appeals
• Parties: Charmian C. CZUBINSKY, etc., Plaintiff and Appellant, v. DOCTORS HOSPITAL, Defendant and Respondent. Civ. 24530.

Page 685

188 Cal.Rptr. 685

139 Cal.App.3d 361

Charmian C. CZUBINSKY, etc., Plaintiff and Appellant, v. DOCTORS HOSPITAL, Defendant and Respondent.

Civ. 24530.

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

Jan. 24, 1983.

Hearing Denied March 13, 1983.

George R. McClenahan and Harry V. McGahey, San Diego, for plaintiff and appellant.

Douglas R. Reynolds, San Diego, for defendant and respondent.

STANIFORTH, Associate Justice.

As Charmian C. Czubinsky was coming out of anesthesia, after a routine and uneventful surgical procedure to remove an ovarian cyst, she went into cardiac arrest and suffered a severe loss of oxygen to her brain resulting in permanent and total paralysis. She now exists in a semi-comatose state. A unanimous jury awarded 28-year-old Czubinsky damages in the sum of $982,000 against Doctors Hospital for her catastrophic injuries. At the time Czubinsky experienced the post-operative complications, only the anesthesiologist (Dr. Kushner) and the operating room (OR) technician (Harman) were present in the OR. The operating surgeon, Dr. Rand, had left the room to prepare for another surgery. The circulating nurse (Werner) left the room in response to a call from Dr. Rand. As a result the OR was inadequately staffed at a most critical period following surgery. In the face of uncontradicted evidence warranting a jury finding of gross neglect by hospital personnel, the trial court determined there was no substantial evidence to support the verdict and granted a judgment notwithstanding the verdict. Czubinsky appeals.

DISCUSSION

I

The trial court, on a motion for judgment notwithstanding the verdict, is not permitted to reweigh the evidence or judge the credibility of witnesses. If there is substantial evidence to support the verdict, including applicable presumptions or inferences reasonably deductible from the evidence, granting a judgment notwithstanding the verdict is improper. (See Clemmer v. Hartford Insurance Co., 22 Cal.3d 865, 877, 151 Cal.Rptr. 285, 587 P.2d 1098; Hauter v. Zogarts, 14 Cal.3d 104, 110, 120 Cal.Rptr. 681, 534 P.2d 377; Montijo v. Western Greyhound Lines, 219 Cal.App.2d 342, 348, 33 Cal.Rptr. 184.) If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. (Clemmer, supra, at pp. 877-878, 151 Cal.Rptr. 285, 587 P.2d 1098.) When reviewing the validity of a judgment notwithstanding the verdict, an appellate court must resolve any conflict in the evidence and draw all reasonable inferences therefrom in favor of the jury's verdict. (Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 515, 143 Cal.Rptr. 247, 573 P.2d 465.) In short, our duty is to apply the substantial evidence test to the jury verdict, "ignoring the judgment [n.o.v.]." (Hasson v. Ford Motor Co., 19 Cal.3d 530, 546, 138 Cal.Rptr. 705, 564 P.2d 857.)

Doctors Hospital asserts "there was no evidence that the acts or omissions of the hospital and its employees caused injury" and contends that as a matter of law the absence of expert testimony supports the trial court's granting of the motion. This contention is without merit, without support in the record or in law.

II

The evidence is overwhelming that Czubinsky sustained catastrophic injuries as a direct result of the hospital personnel's failure to properly monitor and render aid when needed. Substantial evidence supports the jury's conclusion the hospital's (registered nurse Werner and technician Harman) acts and omissions were a proximate cause of Czubinsky's injuries:

1. Dr. Rand testified post-operative monitoring is critical. He stated monitoring "is absolutely important," and all personnel in the OR are required to observe the patient regardless of their job function. During the critical life endangered period Czubinsky's heart rate dropped from its normal beat of 70-80 per minute to 12-20 beats per minute. Dr. Rand testified the audio signal on the oscilloscope was always kept on and any significant change in the beep would be readily discernable.

Dr. Rand also said cardiopulmonary resucitation (CPR), if administered properly, would provide adequate blood circulation and forestall permanent brain damage for as long as one-half hour; effective CPR required a joint effort by a number of people. Any significant change in cardiac activity necessitated prompt remedial measures. Any trained anesthesiologist, registered nurse or OR technician would have recognized this. Rand further testified it would have taken several minutes with observable warning signs present for Czubinsky to reach a severe hypoxic (brain damaging) condition.

2. Werner left the OR when Dr. Rand and Dr. Hoadie called her to come next door where they had started another surgery. Werner told the doctors she could not leave Czubinsky because she had not completed her duties, yet she departed. Werner concedes Czubinsky was at a critical post-operative period because she was undergoing the transition from anesthesized air to room air. Werner defends her leaving the room because she was "being yelled at."

3. The hospital's own manual of procedure sets forth specific duties of the circulating nurse in the OR. The manual provides, in pertinent part: "He/she is also the member of the team who will be on hand to assist the Anesthesiologist during the entire procedure." (Italics added.) ¹

Werner was the circulating nurse assigned to the room occupied by Czubinsky. As a circulating nurse, Werner was in charge and responsible for assigning the two OR technicians to scrub. She would then circulate with them. Werner's other conceded responsibilities included monitoring the patient and assisting the anesthesiologist, Dr. Kushner. Werner was familiar with OR procedures and rules and was trained in CPR. The OR technician's (Harman) presence in the room was not a substitute for Werner, the registered nurse.

4. Expert witness Dr. Lucas testified a cardiac arrest should be anticipated at any time in the OR and that appropriate modalities be ready to cope with it. He stated CPR correctly administered could be continued for one hour without permanent brain damage. He was of the opinion several qualified persons should stay with the patient post-operatively until the patient is delivered to the recovery room. Dr. Lucas agreed OR personnel should be qualified in patient monitoring; vigilance in observing changes in a patient's condition is paramount. Finally, Dr. Lucas stated that short of an emergency it would be inappropriate for a surgeon to request a circulating nurse to leave a patient while in the OR. No emergency situation is shown in this record which would authorize Werner's departure.

5. Anesthesiologist Dr. Kushner testified. ² He admitted the induction and post-operative periods were the most dangerous in the anesthesia procedure. He stated that after Czubinsky's problem was discovered he needed assistance with resuscitation, but because he was alone he had to run back and forth around the operating table alternating between CPR and ventilating her. Harman was gone for two or three minutes before he came back with help. Kushner further testified assistance was necessary during this critical period of time because seconds count in a cardiac arrest such as this one.

6. Harman, the OR technician, was trained as a hospital corpsman. He had extensive training in CPR...