Fraser v. Sprague

• Decision Date: 18 March 1969
• Citation: 270 Cal.App.2d 736,76 Cal.Rptr. 37
• Court: California Court of Appeals Court of Appeals
• Parties: Kent FRASER, Plaintiff and Appellant, v. Charles P. SPRAGUE et al., Defendant and Respondent. Civ. 8970.

Page 37

76 Cal.Rptr. 37

270 Cal.App.2d 736

Kent FRASER, Plaintiff and Appellant, v. Charles P. SPRAGUE et al., Defendant and Respondent.

Civ. 8970.

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

March 18, 1969.

[270 Cal.App.2d 739] Albert A. Sanders, San Bernardino, and Margolis & McTernan, by John T. McTernan, Los Angeles, for appellant.

Swing, Swing & Fisher by Everett H. Swing, San Bernardino, for respondent.

OPINION

TAMURA, Associate Justice.

Plaintiff appeals from a judgment of nonsuit in a medical malpractice action arising out of an operation performed by defendant on plaintiff for the removal of the lesser saphenous vein. ¹

The question is whether there was sufficient evidence to require the case to be submitted to the jury under a conditional res ipsa loquitur instruction.

A nonsuit may be granted '* * * '* * * only when, Disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every ligitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff.' (Citations)' (Seneris v. Haas, 45 Cal.2d 811, 821, 291 P.2d 915, 921, 53 A.L.R.2d 124; Reuther v. Viall, 62 Cal.2d 470, 474--475, 42 Cal.Rptr. 456, 398 P.2d 792; Kopfinger v. Grand Central Pub. Market, 60 Cal.2d 852, 855, 37 Cal.Rptr. 65, 389 P.2d 529; Meyer v. Blackman, 59 Cal.2d 668, 671, 31 Cal.Rptr. 36, 381 P.2d 916; see Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161.) Unless a verdict for plaintiff would be so lacking in evidentiary support that the trial court would be required to set it aside as a matter of law, it is not justified in taking the case from the jury. (Seneris v. Haas, Supra, 45 Cal.2d p. 821, 291 P.2d 915.) In reviewing a judgment of nonsuit the evidence must be viewed in the light of those settled rules. (Kopfinger v. Grand Central Pub. Market, Supra, 60 Cal.2d 852, 37 Cal.Rptr. 65, 389 P.2d 529; Meyer v. Blackman, Supra, 59 Cal.2d 668, 31 Cal.Rptr. 36, 381 P.2d 916; Bedford v. Bosko, 217 Cal.App.2d 346, 31 Cal.Rptr. 727; Bristow v. Brinson, 212 Cal.App.2d 168, 172, 27 Cal.Rptr. 796.)

In 1963 plaintiff was suffering from varicose veins in his left leg. He consulted defendant who recommended removal of both the greater and lesser saphenous veins. Defendant described the surgical procedure as a simple operation requiring hospitalization for only four or five days and stated that plaintiff would be able to return to work in three or four weeks. Defendant did not indicate any risk of nerve injury or resultant pain other than the normal pain of surgery.

The surgery was performed on April 29, 1963. Plaintiff was under general anesthetic and was unconscious throughout the operation. Defendant employed a surgical instrument known as a Linton stripper, a length of moderately flexible stainless steel wire on each end of which is affixed a stainless steel tip shaped like an olive, the tip on one end being three times the size of the other. Defendant made one incision near the upper limits of the popliteal space, visualized, clamped and cut the lesser saphenous vein; inserted the stripper in the vein; threaded it down through to the lateral malleolus, ² where he made a second incision; visualized, clamped and severed the vein, tied the vein to the stripper; and removed the vein by pulling out the instrument. Defendant was uncertain whether he pulled the stripper out through the popliteal incision or the malleolus incision. At trial he testified that it was through the malleolus incision, but at his deposition he testified that it was through the popliteal incision. Either method is medically acceptable but when the stripper is pulled through the popliteal space, the vein, which gathers in bunches at the head of the stripper, must be drawn through tissues in the vicinity of the common peroneal nerve. The common peroneal nerve is the motor and sensory nerve of the leg.

Following surgery defendant wrapped the leg with an ace elastic bandage from the ankle to the groin and left an order that the patient was to walk five minutes hourly. At 5:00 p.m. of the day of the operation defendant examined plaintiff and loosened and reapplied the bandage. Plaintiff had complained of numbness in the front of his leg. On two occasions while he was taking the hourly walks plaintiff fell but suffered no injury.

On May 6, five days after plaintiff's discharge from the hospital, office tests performed by defendant revealed that plaintiff had difficulty in dorsiflexing his foot indicating nerve impairment of the leg. Defendant ordered physical therapy treatment to preserve muscle tone while the nerve was regenerated. Plaintiff underwent such treatment for eleven months; it involved three treatments a week and tapered off to twice a week during the later period. During one of the post-operative office visits, defendant noted that plaintiff had a partial foot drop which is characterized by a dropping and inward turn of the toes and a dropping or dragging of the toes in stepping forward when walking. Defendant determined that the condition was caused by a malfunction of the superficial peroneal nerve and prescribed a foot brace to hold the foot in proper position when walking. Plaintiff wore the brace until two months after defendant discharged him. In September and November 1963 defendant caused electromyographic studies to be made of plaintiff's leg. From those studies he concluded that plaintiff was suffering from an impairment of the common peroneal nerve. Defendant provided post-operative care for more than one year.

Plaintiff was not charged for the extended post-operative care, the physical therapy treatments or the electromyograms. The items mentioned are not normally incident to post-operative care following vein stripping.

After defendant discharged him plaintiff continued to suffer pain in his left foot. He consulted Dr. Carton, a neurosurgeon, and Dr. Massell, an expert in vascular surgery, both of whom, after performing tests, concluded that plaintiff was suffering from causalgia, a condition which frequently follows a nerve injury and is evidenced by the patient's complaint of burning pain, extreme sensitivity to superficial touch, and bizarre distortion of sensation. In the opinion of the two doctors, injury to the common peroneal nerve was the cause of the causalgia. As the result of their findings, Dr. Massell performed a lumbar sympathectomy on July 19, 1967, to relieve the condition.

Dr. Massell, also testified in substance as follows: The common peroneal nerve traverses the popliteal space. As the lesser saphenous vein approaches the popliteal space from below, it is superficial to the skin's surface but, as it enters the area of the popliteal space, it dips into the tissues where it joins the peroneal nerve. In most cases, at the point where defendant made the incision the lesser saphenous vein would be as deep or deeper than the common peroneal nerve. At certain points the nerve and the lesser saphenous vein are about one centimeter apart; in some cases the two are so close together that it is necessary to move the nerve to reach the lesser saphenous vein. In the surgical procedure for the operation, one or more retractors would be used at the incision at the popliteal space in order to get to the junction of the lesser saphenous vein and the peroneal nerve. In using retractors, care must be exercised to avoid exerting pressure against the nerve. In his opinion, with an incision of 1/2 to 1 inch as was made in the instant case, it would be difficult to get at the underlying structure and 'vigorous use' of retractors would be required. While there are some risks of nerve injury in vein stripping, there are recognized techniques for its avoidance. In his experience in performing approximately 1,000 surgical removals of the lesser saphenous vein, he never encountered any impairment of the common peroneal nerve and, in fact, he never heard of such a result steming from the operation.

Dr. Carton was also of the opinion that plaintiff suffered an injury to the common peroneal nerve at the popliteal area. He testified that if surgery were performed 'with the usual care,' the injury would be unlikely, though possible; that in his opinion it would have been unlikely for the injury to have occurred during the surgery and that overtight bandaging following surgery was the more probable cause of the injury. In reaching his opinion, he considered a nurse's entry for April 30, the day following surgery, which read: 'Complained of numbness in foot and ankle. Color good, foot warm. Ace bandage loosened. No further complaint.'

Defendant was called under section 776 of the Evidence Code and testified in substance as follows: After examining reports of the electromyograms he had ordered, he concluded that the common peroneal nerve had been injured. He had 'no positive concept' of the cause of the nerve impairment but 'had probable ideas or opinions as to what it might be' including 'bruising' in the course of surgery resulting from the mass of veinous tissue accumulated on the stripper. He admitted that bruising of the nerve during surgery could be avoided by the observance of 'proper surgical procedures.' ³

Prior to surgery plaintiff had been employed as a salesman. Following the operation he was unable to work until May 1964. He left his employment in July 1966 for the lumbar sympathectomy and was released by his doctor to return to work in December 1966 but his former employer refused to take him back.

If the evidence summarized was sufficient to bring the doctrine of res ipsa loquitur into play, the nonsuit should have been denied. (Seneris v. Haas, Supra, 45 Cal.2d 811, 827, 291 P.2d 915, 53 A.L.R.2d 124.) It is not for the trial court to draw or to refuse to draw the inference of negligence...