Gist v. French

• Decision Date: 17 October 1955
• Citation: 288 P.2d 1003,136 Cal.App.2d 247
• Court: California Court of Appeals Court of Appeals
• Parties: Winnie GIST and Fred Gist, Plaintiffs and Respondents, v. Edison A. FRENCH, d/b/a French Hospital and Clinic, Alfred Martin Wolfe, Dennis Joseph Sullivan, Defendants, Edison A. French, d/b/a French Hospital and Clinic, Appellant. Civ. 20424.

Page 1003

288 P.2d 1003

136 Cal.App.2d 247

Winnie GIST and Fred Gist, Plaintiffs and Respondents, v. Edison A. FRENCH, d/b/a French Hospital and Clinic, Alfred Martin Wolfe, Dennis Joseph Sullivan, Defendants Edison A. French, d/b/a French Hospital and Clinic, Appellant.

Civ. 20424.

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

Oct. 17, 1955.

Hearing Denied Dec. 14, 1955.

Griffith & Thornburgh, Santa Barbara, and Lamb, Hoge & Killion, San Francisco, for appellant.

Charles K. Buck, San Luis Obispo, and Emmett R. Burns, Los Altos, for respondents, by Charles K. Buck.

MOORE, Presiding Justice.

Dr. Edison A. French appeals from a judgment of malpractice whereby he was adjudged to pay $70,000 for his negligence in the treatment of Winnie Gist and $9,000 to her husband for loss of services and consortium. He demands a reversal on the grounds of asserted prejudice in the erroneous admission of certain evidence, by unwarranted comments upon certain evidence, by accusing appellant of belonging to a combine which suppressed evidence, by giving and refusing certain instructions.

Appellant operates a hospital and clinic at the city of San Luis Obispo, a city by the sea half way between Los Angeles and San Francisco. Mrs. Gist, 37 years of age, visited his clinic on February 25, 1952, ¹ complaining of a pain in her right side. After a complete physical examination, he advised that the tumor be removed. He said nothing about the removal of any organ of the body or of anything else that would have to be done. He sent her home to consult her husband. The latter having agreed that a necessary operation should be done at once, she returned to the hospital on the same day. Without her consent to any operation other than the removal of the tumor, without any preoperative tests or a biopsy, she was put to sleep. A spinal anesthetic was administered, and without the aid on an assistant surgeon, appellant applied his surgical instruments and removed her uterus, cervix and appendix.

During the succeeding ten days, her deterioration was rapid. She had no appetite, suffered nausea, dizziness and an intense roaring in the head and throbbing of the body and was weak and apathetic, drawn and pale. It was developed that in the performance of the delicate operation, he had severed the vaginal branch of the uterine artery and failed to tie it off. It is a pulsing blood vessel about half the size of the lead of an ordinary pencil. She bled continously during her ten days in the hospital. She sweated generously every night. Whenever she awoke, her gown was 'wringing wet and cold,' befouling her bed. She could eat no food, and had an abnormal thirst. In the absence of Dr. French who was at a meeting in Los Angeles, his employee, Dr. Sullivan, insisted upon Mrs. Gist's being up and moving about. On the very next day after the operation, she was taken from bed to walk and on the 27th she was 'made to walk,' but she fainted and was 'bodily taken back and put to bed.' She was visited by a registered nurse only once daily and, during the ten days of her confinement, appellant made no examination of her and saw her only on the morning of the 26th of February, the day after the operation, and again on March 5th when he discharged her. The hospital records show that during the ten days, she was in a precarious condition: suffered back-ache, nausea, insomnia, dizziness, fever, abnormal pulse, crackling in her ears, a drop in the red blood count from 4,050,000 to 3,170,000; in her white blood count from 13,100 to 12,500, and in the hemoglobin from 11.7 to 9.1.

During appellant's absence from the hospital, he had two physicians care for his patients. Dr. Wolfe's duties included that of administering medical treatments to adults. When he discovered Mrs. Gist's hemoglobin count was 9.1, he determined that it indicated microcytic anemia, a serious loss of blood and oxygen in the blood. He was of the opinion that, according to the standard of care of local doctors, an inquiry should have been made to determine whether there had been a loss of blood. But he made no examination of the lady; did not ascertain her blood pressure or examine her record, insisting that he merely observed for the benefit of appellant. Dr. Sullivan also was there as appellant's employee. He first saw Mrs. Gist on March 2. He then observed the hemoglobin count of February 26 to have been 11.7. On March 4 he caused a complete blood count to be made which revealed the hemoglobin drop to 9.1; but in some way that change got entered on the hospital chart as of March 2. He, therefore, knew not only that 9.1 was a low hemoglobin count and that it was significant, but he knew also the vaginal bleeding, dizziness and crackling of the ears were significant. However, Dr. Sullivan denied responsibility for the reduced status of Mrs. Gist's health for the reason that she was appellant's patient and that she continued to be his responsibility until discharged.

Appellant admitted that he had made no preoperative tests; that at the time of her discharge on March 5 he knew her record and the changes in her blood count; that before sending her home, he did not take her blood pressure. He testified that the standard of the ethics of surgery in San Luis Obispo was no lower than that of larger communities; that his hospital was a member of three associations of hospitals, to wit, American, Western, California.

The Second Operation

On Thursday, March 6, Mrs. Gist had a gushing of blood from her vagina. This was repeated on Friday, and on Friday night she felt five large hard clots expelled. Despite her panic, her husband did not telephone appellant until Saturday morning. Frightened, weak and bleeding about 10 a. m. she was rushed to the hospital and immediately to surgery. While on the operating table, then for the first time she was typed for blood, but the operation was not begun until 12:35 p. m. A five-inch incision was made into the pelvic cavity. More than two cups of blood were sponged out and large clots were removed. Appellant then removed the left tube and ovary; also part of the broad ligament and any area that had become saturated with the blood from the injured uterine artery. The broad ligament had to be dissected in order to have access to the artery.

Not only did appellant fail to call any one who had witnessed the first operation to testify, but he produced none who was present at the second. However, respondents called Dr. Sullivan who assisted appellant. He testified that he held the clamp to assit appellant to tie the artery; that after it was tied, it did not bleed anymore. From the fact that the artery did not bleed again after appellant tied it, and from the voluminous testimony of Dr. Sullivan, the jury had good cause to believe that at the first operation, appellant did not tie the vaginal branch of the uterine artery and that such negligence was the cause of all the ills resulting to Mrs. Gist from the first operation. During deliberations, the jury returned to court and requested the reading of Sullivan's testimony. After hearing it, they reported their verdicts.

When the pelvic cavity was opened and the blood and clots sponged out, blood was still oozing out of the left side from beneath the left ovary and tube. The blood was in the tissues. 'It had eroded its way right through it and the bleeding appeared to be coming from just under there.' When appellant placed clamps on the broad ligament, saturated with blood, to expose the bleeding place, the vaginal branch of the left uterine artery was seen cleanly severed across without split or cut in the sides. The swollen and blood-eroded organs had held the bleeding in check. The ovary and tube were 'saturated with blood.' When the broad ligament was clamped back 'the artery was free to bleed and bled freely.' It had supplied the cervix and the uterus which were cut out at the first operation. But 'the blood had just by pressure eroded thru the entire area.' The pressure was caused by the bloods' filling the area, swelling all the tissues. 'When we tied this artery it's never bled from that day to this.' All other arteries that had been cut at the first operation had been previously tied off and were not bleeding when the pelvic cavity was opened for the second time. But the cut end of the vaginal branch of the left uterine artery could be seen and it was the only one bleeding. After the second operation, Mrs. Gist suffered no complications; all traces of vaginal bleeding disappeared within five days. She went home on March 20, but returned to appellant for examination and treatment of her draining incision every two days until May 17, 1952. She suffered a complete breakdown and entered another hospital.

Appellant maintained that he was not negligent at the first operation; that he had properly tied the uterine artery; that by virtue of the presence of a mysterious chemical agency in the body of Mrs. Gist, the catgut on the artery was dissolved; that such dissolution was followed by a hemorrhage through no fault of the surgery. His theory as to the presence of a mysterious property was rejected by the jury in favor of the theory of respondent, to wit: when an artery is tied, a clot forms inside the vessel next to the tie. Appellant contended that the clot as well as the suture was dissolved ² and that the chemical agency originated in the vagina and was not in the blood itself. That the strange force played havoc with the end of the uterine artery and not with the ends of other arteries that had been tied with the same material, appellant could explain with no language other than that it was one of those mysterious things that defy explanation. Such reasoning evidently was not calculated to convince the jury in view of the facts already recited as well as the fact that appellant used the same chromic tie on the same artery in the second operation, and at exactly the same point at...