Hale v. Venuto

• Decision Date: 01 December 1982
• Citation: 187 Cal.Rptr. 357,137 Cal.App.3d 910
• Court: California Court of Appeals Court of Appeals
• Parties: Joni HALE, Plaintiff and Appellant, v. Ralph J. VENUTO, M.D., Defendant and Respondent. Civ. 27403.

Page 357

187 Cal.Rptr. 357

137 Cal.App.3d 910

Joni HALE, Plaintiff and Appellant, v. Ralph J. VENUTO, M.D., Defendant and Respondent.

Civ. 27403.

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

Dec. 1, 1982.

[137 Cal.App.3d 914] Paul J. Gergen, Orange, for plaintiff and appellant.

Bonne, Jones, Bridges, Mueller & O'Keefe and Mark V. Franzen, Santa Ana, for defendant and respondent.

TROTTER, Associate Justice.

FACTS

Plaintiff, Joni Hale, had a history of her left knee slipping out of joint since 1968. Her care was ultimately taken over by defendant, Dr. Ralph J. Venuto, an orthopedic surgeon who recommended corrective surgery after plaintiff suffered a major dislocation of the left kneecap in July of 1975. As a result of this surgery, plaintiff suffers from combined peroneal and tibial palsy of her left foot, a condition evidenced by numbness in her big toe and three adjoining toes, the numbness extending about half way up her foot on both the top and the bottom.

There is conflicting evidence as to the type of warning defendant gave plaintiff prior to surgery in regard to post-operative complications. Both plaintiff and defendant testified that plaintiff was advised that she might still experience post-surgical knee problems, including inability to walk altogether. Defendant, however, disputes plaintiff's testimony that she was not specifically warned about possible post-surgical numbness to either her left leg or foot.

The surgery was performed July 31, 1975. Plaintiff was placed under general anesthetic and remained unconscious throughout the operation. The defendant performed a "Modified Hauser" surgical procedure which has the effect of realigning the entire mechanism controlling the kneecap in order to correct the attendant knee dislocation. During the operation a pneumatic tourniquet was applied to plaintiff's leg for the purpose of facilitating the operation procedure by cutting off the blood supply to the leg to create a dry (bloodless) surgical field. Following surgery plaintiff's leg was wrapped with a padded dressing consisting of expandable bandage extending from the toes to the groin. The defendant doctor was scheduled to take a few days vacation after the operation, but he nevertheless checked the plaintiff in the recovery room within one hour of the surgery. He also wrote detailed orders to be followed in the care of plaintiff during his absence.

Plaintiff testified that she first awakened around dinner time on the day surgery was performed, but that she did not regain full consciousness until the following morning. At that time she became aware of a throbbing pain in her left leg which was concentrated on the knee and foot. Plaintiff recalls first complaining about the pain to the hospital nurses the morning after surgery. Nothing was done about the pain, however, until she was checked by Dr. Rodman, defendant's associate, on the second or third post-operative day. (The hospital records show that Dr. Rodman actually visited plaintiff the morning following surgery and noted that plaintiff was suffering "vague paresthesia" or tingling "without sensory loss." He also noted "no dorsa flexion," or inability to flex or raise foot up.) Following Dr. Rodman's visit, plaintiff's bandages were cut off in the foot area which gave Electromyogram tests performed on plaintiff subsequent to surgery indicated involvement of both the peroneal and tibial nerves which control the upward and downward motion of the foot. The defendant rendered follow-up care after surgery for about one year and during this time period plaintiff's complaints of pain and numbness in her left foot continued.

plaintiff some relief and after which she experienced a tingling sensation throughout the whole foot.

Dr. David A. Johnson, a neurologist, examined plaintiff on behalf of defendant before the trial. He testified that his examination revealed some numbness of plaintiff's left foot and found "loss to pinprick and cotton" over the top and bottom of the foot more on the medial than the lateral side involving all the toes except the little toe. He attributed this condition to an apparent "combined lesion involving both a portion of the posterior tibial and peroneal nerves." He further testified that causation would vary from individual to individual but that foot numbness could be created by compression of a nerve, producing a lack of blood flow, resulting in injury to the nerve. He also stated that in the course of leg surgery nerve damage can result from "compartment syndrome" or internal bleeding inside either the anterior (front) or posterior (back) leg compartments. However it was his opinion that plaintiff's injury could not be explained by the occurrence of a "compartment syndrome" because that would only explain the peroneal component and would not explain the posterior tibial component in the back of the leg. Dr. Johnson did not believe that the surgical incision made in performing the Modified Hauser procedure could have caused the problem because the incision is made "anteriorly and far away from where the nerves are." He also was of the opinion that plaintiff's foot numbness was a permanent injury.

Plaintiff also called to testify Dr. Richard G. Lambert, a board certified orthopedic surgeon, who had performed literally thousands of knee surgeries in his medical career. Dr. Lambert was of the opinion that the risk of combined peroneal or tibial palsy following the performance of a Hauser Procedure was statistically nonexistent.

After reviewing the medical records, Dr. Lambert noted that exploration of the nerve was never done and that no definitive diagnosis as to plaintiff's condition was ever made. He concluded that the most probable cause of plaintiff's injury was external pressure either from the tourniquet used during surgery or from the application of tight bandages after the operation. He considered the probability of nerve damage during the actual surgical procedure to be small because the surgical knife "isn't long enough to reach over and cut that nerve." Lastly, he was of the opinion that a compartment syndrome could not have caused the injury.

As to the use of a tourniquet preparatory to knee surgery, Dr. Lambert testified that this was standard procedure and that although the surgeon rarely applies the tourniquet himself, the surgeon is responsible for the tourniquet because he "causes it to be put on and causes it to be removed." He also noted that from his experience tourniquet pressure ordinarily does not result in damage to the peroneal and tibial nerves unless "it is incorrectly applied or it is applied over a bony prominence or the tourniquet itself is defective." As to improper bandaging, Dr. Lambert noted that the danger is in causing construction in a given portion of the leg "as in the case of the peroneal nerve which lies directly over the bone of the fibula," since in his opinion "it doesn't take very much pressure in a certain specified area to cause damage to the nerve."

The defendant himself testified that "the surgeon controls the tourniquet pressure by looking at the wound" so that the surgeon can direct any needed adjustments in the pressure gauge to be made by the anesthesiologist. With respect to the application of the bandages, there was evidence that defendant visited plaintiff in the recovery room less than an hour after surgery and during this visit defendant remained "long enough to check [plaintiff] and make sure Dr. Lambert stated that while nothing in the record indicated that defendant did anything wrong during the surgery, he was of the opinion defendant was "below the usual and customary standard of care" as such result "does not generally occur without some untoward action of the surgeon."

                she was okay."   He wrote orders to be followed in the post-operative care of plaintiff during his absence, including:  "Do not remove Joni's dressing."
                

DISCUSSION

The issue before the court is whether there was sufficient evidence to require the case to be submitted to the jury under a conditional res ipsa loquitur instruction. ¹

The rules applicable to appellate review from nonsuits are well settled. A motion for nonsuit may properly be granted " '... when, and only when, disregarding conflicting evidence, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate 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 (1955) 45 Cal.2d 811, 821, 291 P.2d 915; Fraser v. Sprague (1969) 270 Cal.App.2d 736, 739, 76 Cal.Rptr. 37; Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, 855, 37 Cal.Rptr. 65, 389 P.2d 529.) 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, p. 821, 291 P.2d 915.)

If the evidence summarized above was sufficient to bring the doctrine of res ipsa loquitur into play, the nonsuit should have been denied. It is not for the trial court to draw or to refuse to draw the inference of negligence so long as plaintiff has produced sufficient evidence to permit the jury to make that decision. (Wolfsmith v. Marsh (1959) 51 Cal.2d 832, 835-836, 337 P.2d 70; Seneris v. Haas, supra, 45 Cal.2d 811, 827, 291 P.2d 915.)

The doctrine of res ipsa loquitur is fundamentally a doctrine predicated upon inference deducible from circumstantial evidence. (Clark v. Gibbons (1967) 66 Cal.2d 399, 409, 426 P.2d 525; Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 163, 41 Cal.Rptr. 577, 397 P.2d 161.) The doctrine of res ipsa loquitur is applicable when three conditions are met: "(1) the accident [or injury] must be of a kind which ordinarily does not occur in the absence...