Dow v. Kaiser Foundation

• Decision Date: 29 October 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy Dayton DOW, Plaintiff and Respondent, v. KAISER FOUNDATION, etc., et al., Defendants and Appellants. Civ. 35748.

Page 747

90 Cal.Rptr. 747

12 Cal.App.3d 488

Dorothy Dayton DOW, Plaintiff and Respondent, v. KAISER FOUNDATION, etc., et al., Defendants and Appellants.

Civ. 35748.

Court of Appeal, Second District, Division 2, California.

Oct. 29, 1970.

Rchearing Denied Nov. 25, 1970.

Hearing Granted Dec. 24, 1970.

Thelen, Marrin, Johnson & Bridges, and James M. Radnich and Andrew J. Nocas, Los Angeles, for defendants-appellants.

Cummins, White & Breidenbach and Francis Breidenbach, Los Angeles, for plaintiff-respondent.

COMPTON, Associate Justice.

Plaintiff Dorothy Dow sued defendants Dr. Paul Harmon, Permanente Medical Group, a partnership, Southern California Permanente Medical Group, a partnership, and Kaiser Foundation Hospital, a nonprofit corporation, seeking damages for injuries allegedly resulting from medical malpractice and the lake of an informed consent to lower back surgery performed by Dr. Harmon. The operation was performed on May 22, 1964. The complaint was filed on August 9, 1965.

In a bifurcated proceeding the issue of the statute of limitations was tried first. The jury rendered a verdict against defendants on that issue.

Following a trial on the substantive issues a verdict was rendered for plaintiff in the sum of $100,000. Defendants appeal.

For nearly 16 years prior to the operation in 1964, plaintiff was employed by the Los Angeles City School District. As a consequence of her employment plaintiff was eligible for and participated in the Kaiser Foundation Health Plan, Incorporated. This health insurance plan provides full soverage for practically all medical needs of its members.

In the late 1950's, plaintiff consulted Dr. Rene Cailliet (not joined as a defendant in this action) of the Southern California Permanente Medical Group concerning problems with her lower back. The Permanents Medical Group is a medical partnership which provides the Kaiser Health Plan members with the comprehensive Medical servicing and medical card guaranteed by the Kaiser Health Plan. Dr. Cailliet was the Chief of the Department of Physical Medicine and Rehabilitation with the Southern California Permanente Medical Group and as such served as plaintiff's consulting doctor from that time through the time of the May 1964 operation.

In January of 1958, plaintiff was admitted to the Kaiser Hospital for severe pain resulting from an acute lumbo sacral strain. Dr. Caillict recommended sonservative treatment.

Between 1958 and 1963, plaintiff suffered periodic episodes of increasingly severe pain in her lower back precipitated by movement in her spine. In late 1963, she was hospitalized 3 times for acute lumbo sacral strain and on each occasion received conservative treatment in the form of bed rest, traction and further physical therapy.

In early 1964, plaintiff suffered further continuous pain in her lower back which became particularly severe at night and after long periods of standing.

At this point Dr. Cailliet sdvised that further conservative treatment would no longer be productive. Plaintiff, on Dr. Cailliet's recommendation, consulted a Dr. Cozen, an orthopedic surgeon not associated with Kaiser or Permanente. Dr. Cozen recommended continuing with conservative treatment, i. e., exercises. He did not recommend surgery.

Later in January 1964, Dr. Cailliet referred plaintiff to Dr. Vinne H. Jeffress, an orthopedic surgeon, employed by Southern California Permanente Medical Group. Dr. Jeffress recommended a more strenuous physical exercise program and continued conservative treatment. Dr. Jeffress did not recommend surgery.

Plaintiff's condition still did not improve and she then consulted a Dr. Phillip B. Davis who was recommended to her by a friend. Dr. Davis was not associated with defendants and is not a party to this action.

On February 28, 1964, Dr. Davis recommended surgery to correct plaintiff's back condition. Specifically, Dr. Davis suggested that plaintiff's condition could be remedied by way of an interbody fusion. Plaintiff testified that this was the first time surgery of this nature had been recommended to her.

The interbody fusion is one of several surgical techniques available for correction of low back strain such as suffered by plaintiff.

Interbody fusions are performed either posteriorly (from the back) or anteriorly (from the front). The anterior interbody fusion requires an abdominal incision. Thereafter, the surgeon mobilizes or isolates major blood vessels and organs which would otherwise block a clear view of the operative site. The surgeon then drills out a portion of the disk which separates the critical vertebrae. The drilled-out area is packed with a bone graft taken from the iliac crest of the pelvis. This bone, if the operation is successful, constitutes the fusion or union between the two vertebrae. The anterior approach provides the surgeon with the distinct advantage of a better view of the operative area. It also promises a shorter recuperative period. The anterior interbedy fusion is, however, a relatively uncommon technique which in 1964 was performed by a relatively few orthopedic surgeons.

The posterior interbody fusion is roughly similar in that the fusion is predicated on this interbody drilling and prafting, however, the operative site is reached through an oblique angle from the back.

Dr. Davis' written recommendations were mailed to Dr. Cailliet. Dr. Cailliet, who was not a surgeon, again referred plaintiff to Dr. Jeffress to discuss the possibility of an interbody fusion. On April 8, 1964, Dr. Jeffress advised plaintiff that the success rate for any of the possible techiques was less than 100%. Dr. Jeffress further advised plaintiff that an interbody fusion would represent greater risk than a technique known as posterior fusion (to be distinguished from posterior interbody fusion). Plaintiff declined Dr. Jeffress' offer to do a posterior fusion and inquired as to who might perform an interbody fusion. She indicated a desire for as short a recuperative period as possible. Dr. Jeffress told plaintiff that he could not perform such an operation but advised her that Dr. Paul Harmon, an orthopedic surgeon and a member of the Permanente Group in San Francisco, had done such surgery in the past.

Subsequently, at plaintiff's behest, Dr. Cailliet called Dr. Harmon in San Francisco. This was on April 20, 1964. During this conversation Dr. Cailliet outlined plaintiff's medical history, discussed the above recommendations for surgery and inquired as to whether Dr. Harmon would be available to operate on plaintiff. Dr. Harmon agreed to perform an anterior interbody fusion in plaintiff on May 22, 1964.

Between the Cailliet-Harmon phone conversation on April 20, and the date of the operation, plaintiff spoke with both Dr. Cailliet and Dr. Harmon regarding the scope and some of the risks of the upcoming surgery. Plaintiff expressed some concern over the possibility of the operation 'going through her intestines.' After being reassured by Dr. Cailliet that the operation would not invole her intestines, plaintiff consented to the operation.

On May 19, 1964, plaintiff was admitted to Kaiser Hospital in preparation for the surgery to be performed three days later. On May 21, 1964, Dr. Nasarola Edalatpour, an employee of Southern California Permanente Medical Group, at Dr. Harmon's request, prepared a neurological consultation report on plaintiff plaintiff. Dr. Edalatpour's report expressed the opinion that at that time the risks involved in the surgery were too great and the conservative treatment should be pursued. This report was not furnished to Dr. Harmon because Dr. Caillit vetoed this recommendation on the basis of his long personal knowledge of plaintiff's medical history. The operation was performed as scheduled.

In the course of the operation, in order to visualize and approach the vertebral body and fusion site it was necessary to mobilize and move major blood vessels including the aorta. In so doing, Dr. Harmon unexpertedly encountered retroperitoneal fibrosis ¹ between the blood vessels and back body wall. This condition made the operation more difficult than usual as it necessitated the removal of the fibrosis or scarred tissue before the vertebrae could be reached and the ultimate fusion properly made.

Thus Dr. Harmon was forccd to mobilize the aorta and other major vessels. The retroperitoneal fibrosis was dissected and the aorta separated from surrounding tissue by the use of a peon clamps or forceps with a small piece of cotton, approximately four to five millimeters in diameter at the end. The peon clamp is a softnosed dull or blunt clamp about three to four millimeters wide at its tip. While 'teasing' or separating the retroperitoneal fibrosis ans mobilizing the aorta with the peon clamp Dr. Harmon encountered unexpected bleeding from the branching of what Dr. Harmon descided as an 'anomolous, degenerated aorta.'

Dr. Ferguson, a vascular surgeon, was immediately called into the operating room and the opining in the aorta was closed. Thereafter, Dr. Ferguson assisted Dr. Harmon in the operation. Subsequently, just prior to closing the main wound after the bone graft fusion, another opening occurred, this time in the left common iliac vein. This opening was similarly corrected and the operation was completed without further incident.

Plaintiff's post--operative condition was critical. Due to loss of blood as a result of the lacerations and surgery, she became anemic and required much replacement of blood. Consequently, she suffered an acute renal failure or kidney shutdown. Plaintiff further developed thrombosis of the left iliac artery and swelling in the left leg. The swelling persisted for many months, but ultimately abated. Plaintiff also suffered vascular complications from the left iliac artery which led to weakness through her right leg. Finally, there was testimony that the complications had caused aggravation of an existing heart condition.

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