Kennedy v. Gaskell

• Decision Date: 24 June 1969
• Citation: Kennedy v. Gaskell, 274 Cal.App.2d 244, 78 Cal.Rptr. 753 (Cal. App. 1969)
• Court: California Court of Appeals
• Parties: Caroline KENNEDY, individually, and as guardian ad litem of Jacqueline Arlene Kennedy, et al., Plaintiffs and Appellants, v. Arthur GASKELL, Defendant and Respondent. Civ. 11844.

Page 753

78 Cal.Rptr. 753

274 Cal.App.2d 244

Caroline KENNEDY, individually, and as guardian ad litem of Jacqueline Arlene Kennedy, et al., Plaintiffs and Appellants, v. Arthur GASKELL, Defendant and Respondent.

Civ. 11844.

Court of Appeal, Third District, California.

June 24, 1969.

Rehearing Denied July 17, 1969.

Hearing Denied Aug. 20, 1969.

Colley & McGhee, by Nathaniel S. Colley, Sacramento, for plaintiff-appellants.

Peart, Baraty & Hassard, San Francisco, and Wilke, Fleury, Sapunor & Hoffelt, Sacramento, by Richard G. Logan, Oakland, Joe S. Gray, Sacramento, and Salvadore Bossio, San Francisco, for defendant-respondent.

PIERCE, Presiding Justice.

Plaintiffs appeal from a judgment following a defense verdict in favor of defendant Arthur Gaskell in a wrongful death action based upon alleged medical malpractice. Death of plaintiffs' deceased, Bufus Kennedy, was caused by a cardiac arrest after the administering of a local anesthetic preceding performance by Dr. Gaskell of scheduled disc surgery. The incident occurred at Arden Community Hospital. The anesthetic was given by an anesthesiologist (by definition: a physician specializing in anesthesiology). Both the hospital and the anesthesiologist were originally party defendants. A voluntary dismissal against the former was entered. There was a settlement of the action against the anesthesiologist. The case went to the jury on the issues of (1) the personal negligence of the surgeon, Dr. Gaskell, and (2) his liability as a question of fact under the doctrine of respondeat superior as the principal for whom the allegedly negligent anesthesiologist acted as an agent. The verdict was a general one.

The assignments of error on appeal which we discuss herein are: (1) that the court should have instructed the jury that defendant Gaskell was liable as a matter of law for any negligence of the anesthesiologist, and (2) the giving of instructions which plaintiffs characterize as 'mere happening of the accident,' 'unavoidable accident' and 'mere guess or conjecture' instructions.

We disallow all assignments of error.

The Facts

A substantial part of plaintiffs' argument on appeal is addressed to the issue of the personal negligence of defendant Gaskell both during the initial stages of the administration of the anesthetic and in the heroic attempts after the cardiac arrest. (During the actual occurrence of the cardiac arrest Dr. Gaskell was 'scrubbing' and surgery had not commenced.)

That is a false issue here.

The jury, correctly instructed both on directly proved negligence and res ipsa loquitur (conditioned upon facts found), returned a verdict on that issue in Dr. Gaskell's favor. No contention is made that substantial evidence does not support that implied finding. There is therefore no point in our discussing evidence relevant to that issue.

A substantial settlement payment resulted in a dismissal of the action against the anesthesiologist. We would waste time and space therefore discussing evidence of the issue of the negligence of the latter. We may assume such negligence, without deciding it.

The court instructed the jury that it could determine from the evidence As a matter of fact that the anesthesiologist was an agent of Dr. Gaskell. Unless the record shows As a matter of law that he was such an agent, plaintiffs' theory of liability fails. We address ourselves to the evidence on that question.

The record on that issue shows: Mr. Kennedy was hospitalized for tests on November 25, 1964. The test results obtained the following day indicated immediate surgery. The described surgery was scheduled for 6:30 p.m. that day. The surgeon requested an anesthesiologist from a partnership of such specialists. Kennedy was not asked to and did not participate in the selection. One of the members of the selected firm responded and arrived at the hospital between 5 and 5:30 p.m. Preliminary examinations and administration of drugs were in accordance with standard practice. It had been decided to use a local anesthetic designated as an 'epidural block.' This is an acceptable type of anesthesia for the surgery contemplated. After the administering by the anesthesiologist of the anesthetic agent, Xylocaine, Dr. Gaskell went to the scrub room to prepare for surgery. The anesthesiologist checked the patient. A sudden loss of blood pressure was noticed. There was no pulse. The anesthesiologist immediately called for help and Dr. Gaskell immediately responded. For the reasons stated, the steps thereafter need not be described. Although the patient's heart resumed beating, stopped and started again twice thereafter and the patient remained alive--but in an extremely critical condition--for approximately 31 hours, he then expired.

The Agency

The trial judge refused an instruction that defendant surgeon was liable as a matter of law if the jury found negligence on the part of the anesthesiologist. In arguing that proposition plaintiffs rely on the facts that Dr. Gaskell selected both the type of anesthesia and the anesthesiologist, that the surgeon remained in the operating room during the preliminary stages, helped position the patient on the operating table and was present throughout the administration of anesthesia. They say: 'Under the foregoing circumstances Dr. Gaskell was responsible under the doctrine of respondeat superior * * *.' The California case upon which principal reliance is placed to support that contention is Ybarra v. Spangard (1944) 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. California's landmark Ybarra case, however, does not really help to solve the problem. It involved a plaintiff-patient who, while unconscious under a general anesthetic (during the performance of an appendectomy) suffered an arm and shoulder accident resulting in paralysis and muscle atrophy. Some one or more among the group present, either the operating surgeon, an anesthetist employed by the hospital, or a nurse, was responsible. (It was established that the arm-shoulder disability had not existed before and was traumatic in origin.) Plaintiff sued everyone present. Defendants argued that since plaintiff could not establish which of the several defendants had been responsible no case had been proved under the doctrine of res ipsa loquitur.

The court (on pages 489--490, 154 P.2d 687) made the pointed observation that in some earlier cases too little attention had been given the 'basic underlying purpose' of res ipsa loquitur with the result that the doctrine's fundamental background of common sense and human experience had 'occasionally been transformed into a rigid legal formula.' The court noted (on pp. 493--494, 154 P.2d on p. 691): '* * * A hospital today conducts a highly integrated system of activities, with many persons contributing their efforts. There may be, e.g., preparation for surgery by nurses and internes who are employees of the hospital; administering of an anesthetic by a doctor who may be an employee of the hospital, an employee of the operating surgeon, or An independent contractor; performance of an operation by a surgeon and assistants who may be his employees, employees of the hospital, Or independent contractors; and post surgical care by the surgeon, a hospital physician, and nurses.' (Italics ours.) It held that res ipsa loquitur applied under the facts present. As dictum in reaching that decision the court observed (on p. 492, 154 P.2d on p. 690) that assisting physicians and nurses, although employed by the hospital, 'normally become the temporary servants or agents of the surgeon in charge while the operation is in progress * * *.' It must be emphasized that the court was not speaking of an anesthesiologist who is himself a specialist in his field just as a surgeon is a specialist in his, and that the two fields are separate and distinct in the science of medicine.

The trial court's instruction of the possible liability of Dr. Gaskell As a question of fact was no doubt based upon the decisions in Seneris v. Haas (1955) 45 Cal.2d 811, 829--832, 291 P.2d 915, 53 A.L.R.2d 124, and Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 166--168, 41 Cal.Rptr. 577, 397 P.2d 161. In the first of these cases the court said (on p. 831, 291 P.2d on p. 926) that '(u)nless the evidence is susceptible of but a single inference, the question of agency is one of fact for the jury * * *' and held (quoting an earlier case): "(i)t should be noted that a nurse or physician may be the servant of a hospital, thus requiring the application of the doctrine of Respondeat superior even though they are performing professional acts. (Citations.)" The ruling in Quintal was similar under similar facts. ¹

Numerous cases in other jurisdictions have held that absent some showing that the surgeon employed by the plaintiff had the right to control the actions of the anesthesiologist in his specialty, such surgeon is not responsible for the conduct of the anesthesiologist on any theory of vicarious liability. (Thompson v. Lillehei (8 Cir. 1959) 273 F.2d 376, 382.) Other cases hold the same to be true As a matter of law. Dohr v. Smith (Fla.1958) 104 So.2d 29, 32; ² Huber v. Protestant Deaconess Hospital Ass'n (1956) 127 Ind.App. 565, 133 N.E.2d 864, 869--870; Woodson...