Jines v. Abarbanel

Decision Date17 February 1978
Citation77 Cal.App.3d 702,143 Cal.Rptr. 818
CourtCalifornia Court of Appeals Court of Appeals
PartiesGladys JINES and John Jines, Plaintiffs and Respondents, v. Abraham R. ABARBANEL and Dr. Abraham R. Abarbanel Medical Corporation, Bernard A. Aran, M. D. and Rose Medical Group, Inc., Defendants and Appellants. Civ. 48601.

Dryden, Harrington & Swartz and Peter Abrahams, Los Angeles, for defendants and appellants Abraham R. Abarbanel and Dr. Abraham R. Abarbanel Medical Corporation.

Bonne, Jones & Bridges and John B. Cobb and Magaram, Riskin, Wayne & Minikes and Morton Minikes, Los Angeles, for defendants and appellants Bernard A. Aran, M.D., and Rose Medical Group, Inc.

Hassard, Bonnington, Rogers & Huber, David E. Willett and Robert E. Faussner, San Francisco, for amicus curiae California Medical Association.

Joel W. H. Kleinberg, Los Angeles, for plaintiffs and respondents.

FILES, Presiding Justice.

Defendants appeal from a judgment on a jury verdict rendered against them and from the order denying their motions for judgment notwithstanding the verdict in a medical malpractice case. Defendants Bernard A. Aran, M.D. (hereinafter defendant Aran) and Rose Medical Group, Inc., 1 appeal also from an order after judgment on December 23, 1975, denying their motion to tax costs. Defendant A. R. Abarbanel, M.D. (hereinafter defendant Abarbanel) and Dr. A. R. Abarbanel Medical Corporation appeal also from the order filed January 9, 1976, granting plaintiffs' motion to amend the judgment. A third physician, Luther Hand, M.D., was a defendant but the jury returned a verdict in his favor.

The issues on appeal relate to (1) sufficiency of the evidence to support the verdict against each defendant; (2) claimed errors in jury instructions; (3) the denial of defendant Aran's motion to strike from the cost bill the witness fees claimed under Code of Civil Procedure section 998, subdivision (d); and (4) the propriety of a post judgment order joining Dr. Abarbanel's medical corporation as an additional judgment debtor.

I Sufficiency of the evidence

In reviewing the sufficiency of the evidence we consider, as we must, that evidence most favorable to the verdict, including all inferences which the jury could reasonably have drawn from the evidence, and disregarding the conflicting evidence. (See Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)

On February 11, 1972, plaintiff first saw Dr. Aran, a medical doctor engaged in general practice. He requested a consultation from Dr. Abarbanel, a board certified gynecologist, who recommended that Mrs. Jines have "a hysterectomy and combined anterior and posterior vaginal repair."

The surgery took place on February 22, 1972.

Defendants Abarbanel and Aran constituted the "surgical team" for this operation. In the course of their ten-year friendship, the doctors had worked together on various patients. As was their usual custom when defendant Aran made a surgical referral to defendant Abarbanel, defendant Abarbanel acted as the surgeon and defendant Aran acted as the assistant surgeon. Over the course of the many operations the doctors had performed together they had developed "a meeting of the minds" with respect to defendant Aran's "functions" in the operating room as defendant Abarbanel's assistant surgeon. As part of the assistance provided by Dr. Aran, he would on occasion point out some disease condition that he saw, and on occasion he would make a suggestion as to what might be done.

Upon surgically entering Mrs. Jines' abdominal cavity, the doctors encountered an unusual mass of tissue which contained "several entities" bound together by "dense adhesions." The large bowel was incorporated in this mass, as well as the left ovary and tube.

Dr. Abarbanel considered the possibility of carcinoma. He also considered that it might be "diverticulitis, previous walled off ruptures." After dissecting the mass "alongside of the bowel from the parametrium, from the uterus, from the tube and ovary, and from the left lateral pelvic wall," Dr. Abarbanel and Dr. Aran decided that a consultation with a general surgeon and a pathologist would be advisable.

Dr. Luther Hand, a general surgeon who happened to be nearby, came into the operating room. Dr. Seifert, a pathologist, entered also. The testimony as to what occurred at the time of this consultation was highly conflicting. Dr. Hand testified that he was in the operating room two or three minutes, that Dr. Abarbanel merely indicated the operative site and asked him what he thought the mass could be. Dr. Hand stated that he didn't know, but that he "would consider diverticulosis or tumor." Dr. Abarbanel performed a "sliver biopsy" which was given to Dr. Seifert for study. Dr. Seifert reported that the mass was "fibroadipose tissue, post chronic inflammatory," and not malignant.

Dr. Abarbanel testified that he asked Dr. Hand whether he should simply withdraw from the intended hysterectomy, but Dr. Hand "felt that since it was an old walledoff thing, it was no longer active, it was like something that had happened and these were just scars that had been left over." Dr. Abarbanel stated that while Dr. Hand was present there was a discussion about the advisability of performing a colostomy on Mrs. Jines. Dr. Abarbanel testified that Dr. Hand expressed his opinion that a colostomy was not necessary, and that it was absolutely safe to go ahead with the intended procedures. Dr. Hand denied that there was any such conversation.

It is undisputed that at no time did Dr. Hand palpate any of Mrs. Jones' organs or touch any instrument. Both Dr. Aran and Dr. Abarbanel testified that they relied on Dr. Hand's advice as to whether a colostomy should be performed on Mrs. Jines. No colostomy was performed, and, after Dr. Hand left the operating room, Dr. Abarbanel proceeded with a "modified subtotal hysterectomy and excision of the left tube and ovary and tissue in the left parametrial area."

In the customary way that defendants Abarbanel and Aran worked as a team, after the surgery Dr. Aran took over as "the captain of the ship" with respect to Mrs. Jines' post-operative care.

On February 27, 1977, defendant Aran called in Dr. Arthur M. Kahn, a board certified general surgeon, to render a consultation. Dr. Kahn found Mrs. Jines was "very ill." She had a high fever, was not rational, and a foul-smelling pus that "smelled like waste material" was "oozing up out of her lower abdomen" through the surgical incision along with bubbles of gas.

Based on his examination of Mrs. Jines and upon his review of her hospital records, Dr. Kahn concluded that there was a leakage of waste matter from the colon.

To correct this, Dr. Kahn performed a colostomy on Mrs. Jines on February 27, 1972. After that date, Mrs. Jines remained in Dr. Kahn's care. During the next 16 months Mrs. Jines endured numerous subsequent surgical procedures to cure abscesses formed as a result of the extensive infection caused by the leakage from her colon. In the course of eight admissions Mrs. Jines spent 180 days in the hospital. The colostomy was eventually closed and the normal use of the colon restored in June 1973.

Dr. Kahn testified that the operation performed by defendants on February 22, 1972, fell below the standard of care in the community in the following respects: "at the completion of the operation, I think that, knowing the inherent dangers of operating around a diseased colon, with the disease diverticulitis, that most physicians operating in this area would be afraid of potential contamination due to the inadvertent transection of diverticula, and consequently would take precautions to try to prevent infection, such as irrigating the abdominal cavity and the pelvic cavity immediately during the operation with copious quantities of water to maybe dilute the germs or bacteria that have leaked out. And also, I feel that a colostomy would be constructed right away, at that time, because of the severe danger of development of complications such as that that ensued. Q And the construction of a colostomy would be an appropriate thing to do under the standard of care in this community? A Yes."

Dr. Kahn also testified that, in his opinion, the use postoperatively of oral laxatives enemas and a rectal tube in Mrs. Jines' case "fell below the standard of care that reasonably prudent physicians" in the community would use. He testified "that as a result of the operation performed on February 22, 1972, and the postoperative care, that these in total could account for the development of the original colocutaneous fistula, and all of the subsequent complications, necessitating all of the subsequent operations." It is undisputed that doctors Abarbanel and Aran ordered oral laxatives, enemas and a rectal tube as part of Mrs. Jines' postoperative care.

Assuming that defendants thought, as they testified, that they had Dr. Hand's advice to go ahead without a colostomy, that reliance also supported a finding of negligence. Dr. Floyd Parks, a board certified general surgeon, and Dr. Hand both testified that if a physician performing surgery were to rely on the opinion of a general surgeon with respect to an unknown mass when the general surgeon had not palpated the mass, his conduct in so relying would fall below the standard of care applicable in the community. It was undisputed that Dr. Hand did not palpate any of Mrs. Jines' body.

Defendant Abarbanel makes the argument that, as a gynecologist, he could not be expected "to make the diagnosis of acute diverticulitis." He emphasizes the difference between diverticulosis, which is an outpocketing of the intestine, not a disease as such, and acute diverticulitis, which is an inflamed condition, and chronic diverticulitis, which is characterized by scar tissue resulting from an earlier inflammation. Defendants point to the...

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