Fields v. Yusuf

• Decision Date: 21 November 2006
• Docket Number: No. B179848.,B179848.
• Citation: Fields v. Yusuf, 51 Cal. Rptr. 3d 277, 144 Cal.App.4th 1381 (Cal. App. 2006)
• Court: California Court of Appeals
• Parties: O'Greata L. FIELDS, Plaintiff and Appellant, v. Frank M. YUSUF et al. Defendants and Respondents.

51 Cal.Rptr.3d 277

144 Cal.App.4th 1381

O'Greata L. FIELDS, Plaintiff and Appellant, v. Frank M. YUSUF et al. Defendants and Respondents.

No. B179848.

Court of Appeal, Second District, Division 2.

November 21, 2006.

John C. Torjesen & Associates, John C. Torjesen, Los Angeles; Esner & Chang, Stuart B. Esner, Los Angeles, and Andrew N. Chang, Oakland, for Plaintiff and Appellant.

Law Offices of David J. Weiss, David J. Weiss, Los Angeles; Greines, Martin, Stein & Richland, Martin Stein, Feris M. Greenberger and Jens B. Koepke, Los Angeles, for Defendants and Respondents.

DOI TODD, Acting P.J.

Appellant O'Greata L. Fields (Fields) suffered injuries from a sponge left in her leg during surgery.¹ After settling with the hospital, she pursued a claim for negligence against the surgeon, respondent Frank M. Yusuf, and his professional corporation (collectively referred to as Dr. Yusuf). The jury found that Dr. Yusuf was not negligent. On appeal, Fields contends the trial court erred in refusing to instruct the jury on res ipsa loquitur, the nondelegable duty of a surgeon, and the "captain of the ship" doctrine. Based on Ales v. Ryan (1936) 8 Cal.2d 82, 64 P.2d 409 (Ales), we find prejudicial error and reverse the judgment.

FACTS AND PROCEDURAL BACKGROUND

On September 11, 2002, 75-year-old Fields was admitted to the Henry Mayo Newhall Memorial Hospital for pain management after she sustained injuries from a fall in her home. An angiogram revealed that arteries to Fields's right leg were completely blocked due to advanced vascular disease. Fields's left leg had previously been amputated above the knee due to a similar condition.

On September 19, 2002, Dr. Yusuf performed arterial bypass graft surgery to install a new blood vessel above Fields's right leg, inserting sponges to absorb and stem the flow of blood. The postoperative notes show that two sponge counts were conducted and that the counts were correct. The next day, Dr. Yusuf performed a second surgery to remove a blood clot that had developed in the graft. Dr. Yusuf was assisted in this surgery by registered nurse Arlene Dene and scrub technician Marcial Camacho. Dr. Yusuf had worked with both of these assistants for several years. During the second surgery, Dr. Yusuf again inserted sponges to absorb and stem the flow of blood. The postoperative notes indicate that there was only one sponge count during this surgery, and that Dr. Yusuf was informed that the count was correct. Unfortunately, a sponge was left in Fields's leg during this surgery.

In subsequent visits, Dr. Yusuf noticed that Fields's right leg and calf were swollen. On September 28, 2002, Dr. Yusuf realized the incision wound was infected, and opened and cleaned the wound. On October 12, Dr. Yusuf determined that the wound was still infected and on October 14, opened up the wound and discovered a sponge deep behind Fields's right knee. He concluded that the sponge caused the infection, which had spread from the knee up to the groin incision. Dr. Yusuf cleaned the entire wound, confirmed that a pulse still existed, closed the incision, and left two drains in the leg. Gangrene developed in Fields's right leg and on October 18, Dr. Yusuf performed an above-the-knee amputation.

Fields filed a complaint for negligence against the hospital and Dr. Yusuf. The hospital settled with Fields before trial and is not a party to this appeal.

The evidence presented at trial on the issue of the sponge count included testimony from both plaintiff and defense experts, as well as Dr. Yusuf. Fields's expert testified that the surgeon and the nursing staff have "joint" responsibility for sponge counts, and that the surgeon has the ultimate responsibility to determine the course of an operation. He testified that it was a reasonable possibility that the sponge was left in Fields's leg after the sponge count was made and prior to the closing. He further testified that to his knowledge a double sponge count is standard procedure and opined that a surgeon who concluded an operation without calling for a second sponge count breached the standard of care to the patient. He later testified that the standard of care for surgeons is "that they are careful in assessing the operative field and assuring themselves as much as possible that sponges have been removed."

Dr. Yusuf's expert testified that in his opinion Dr. Yusuf complied with the standard of care for surgeons in connection with sponge counts because a surgeon routinely depends on the nursing staff to keep track of sponges and the surgeon relies on these counts. Dr. Yusuf's expert explained that hospitals develop their own protocol for performing sponge counts following "the rules and the regulations of the Joint Commission of Accreditation of Hospitals and the California Nursing Association." He testified that when a surgeon is told the sponge count is correct and the surgeon observes no foreign bodies prior to concluding the operation, the surgeon has satisfied his responsibility to the patient concerning the sponge count. He also testified that in performing an operation on an extremity, two sponge counts are usually required, one on deep closure and one on skin closure, and that the standard of care for a surgeon who does not get a final sponge count on skin closure is to ask for a sponge count at that time.

Dr. Yusuf testified that the number and manner of taking sponge counts was a function under the control of the hospital nursing staff and not the responsibility of the surgeon. Under the hospital's protocol, the nurses decide how many sponges to prepare for surgery and how many sponge counts should be made during surgery. He testified that as a surgeon about to complete an operation, he had a duty to examine the wound for the existence of any foreign matter and to call for a sponge count from the nursing staff who would perform the count and advise him of the result. Dr. Yusuf saw no foreign matter in the area of the wound and was told that the count was correct. He then closed the wound and concluded the operation.

Fields requested that the trial court instruct the jury regarding res ipsa loquitur, nondelegable duty of a surgeon, and the captain of the ship doctrine. The court refused.

The jury found that Dr. Yusuf was not negligent, and the trial court entered judgment in his favor. Fields made a motion for new trial based on the trial court's refusal to give instructions on res ipsa loquitur and nondelegable duty. The trial court denied the motion. This appeal followed.

DISCUSSION

I. Standard of Review

"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572, 34 Cal.Rptr.2d 607, 882 P.2d 298.) The judgment may not be reversed on the basis of instructional error unless the error caused a miscarriage of justice. (Id. at p. 573, 34 Cal. Rptr.2d 607, 882 P.2d 298.) "When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.]" (Id. at p. 574, 34 Cal.Rptr.2d 607, 882 P.2d 298.) "`"A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. [Citation.]" [Citation.]'" (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157, 84 Cal. Rptr.2d 257.)

II. Res Ipsa Loquitur

Res ipsa loquitur is a doctrine affecting the burden of producing evidence applicable to certain kinds of accidents that are so likely to have been caused by a defendant's negligence that, in the Latin equivalent, "`the thing speaks for itself.'" (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825, 15 Cal.Rptr.2d 679, 843 P.2d 624 (Brown).) If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it. (Id. at p. 825, 15 Cal. Rptr.2d 679, 843 P.2d 624; Evid.Code, § 646, subd. (b).)

The presumption that an accident was caused by the defendant's lack of care arises only when the evidence satisfies three conditions: (1) The accident must be of a kind that ordinarily does not occur unless someone is negligent; (2) the accident must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the accident must not have been due to any voluntary action or contributory fault of the plaintiff. (Brown, supra, 4 Cal.4th at pp. 825-826, 15 Cal.Rptr.2d 679, 843 P.2d 624.)

Fields contends the trial court committed prejudicial error by refusing to instruct the jury on the doctrine of res ipsa loquitur as stated in CACI No. 518 or BAJI Nos. 6.35 and 4.02.² Dr. Yusuf counters that the trial court correctly refused to give a res ipsa loquitur instruction because the evidence showed that the nurses had the primary responsibility for conducting sponge counts and communicating those results, and therefore the element of exclusive control was missing. We are not persuaded by Dr. Yusuf's argument.

We find Ales, supra, 8 Cal.2d 82, 64 P.2d 409 to be dispositive. In Ales, a patient died of a peritoneal infection after a sponge was left in her abdomen during gall bladder surgery. Each person present during the operation denied having counted either the sponges brought into the operating room or those used during the surgery. (Id. at pp. 89-91, 64 P.2d 409.) The nurses did not recall being asked to count the sponges, and the surgeon testified that it was the nurses' duty to count the sponges and that someone had announced the count was correct. (Id. at pp. 90-91, 64 P.2d 409.) Finding the doctrine of res ipsa loquitur applicable,...