Kitto v. Gilbert

• Decision Date: 02 June 1977
• Docket Number: Nos. 76-097 and 76-114,s. 76-097 and 76-114
• Citation: 570 P.2d 544,39 Colo.App. 374
• Parties: Arthur B. KITTO and Marion I. Kitto, Plaintiffs-Appellants and Cross-Appellees, v. Beatrice T. GILBERT, M. D., Defendant-Appellee and Cross-Appellant, and The Presbyterian Medical Center, a corporation, and Frank A. Perreten, M. D., Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 544

570 P.2d 544

39 Colo.App. 374

Arthur B. KITTO and Marion I. Kitto, Plaintiffs-Appellants and Cross-Appellees, v. Beatrice T. GILBERT, M. D., Defendant-Appellee and Cross-Appellant and The Presbyterian Medical Center, a corporation, and Frank A Perreten, M. D., Defendants-Appellees.

Nos. 76-097 and 76-114.

Colorado Court of Appeals, Div. III.

June 2, 1977.

As Modified On Denial of Rehearing July 28, 1977.

Certiorari Denied Oct. 24, 1977.

Kenneth N. Kripke, Denver, for plaintiffs-appellants and cross-appellees

Tilly & Graves, Ronald O. Sylling, Denver, for defendant-appellee and cross-appellant.

Montgomery, Little, Young, Campbell & McGrew, P. C., Robert R. Montgomery, Denver, for defendant-appellee Presbyterian Medical Center.

Hansen, Anstine & Hill, Robert W. Hansen, Denver, for defendant-appellee Frank A. Perreten, M. D.

PIERCE, Judge.

Arthur Kitto lost the sight of his left eye during a cataract operation performed under general anesthesia at Presbyterian Medical Center (the hospital). The operating surgeon was Dr. Frank Perreten; the anesthesiologist was Dr. Beatrice Gilbert. Arthur Kitto and his wife Marion sued both doctors and the hospital. A number of claims were asserted against each defendant, but after rulings by the trial court, the case was submitted to the jury on the following basis: A negligence claim against Dr. Gilbert, a medical malpractice claim against Dr. Perreten on an alleged absence of informed consent, and a respondeat superior claim against the hospital for actions of hospital-employed nurses who were present and assisted during the operation. See Bernardi v. Community Hospital Ass'n, 166 Colo. 280, 443 P.2d 708 (1968). The jury found only Dr. Gilbert liable. The Kittos appeal. They assert that the trial court's rulings erroneously restricted the potential liability of Dr. Perreten and the hospital. Dr. Gilbert also appeals, principally urging insufficiency of the evidence in support of the liability verdict and the excessiveness of the awarded damages. We reverse the liability verdict, affirm the damages determination, and remand for a new trial on liability only.

THE KITTOS' APPEAL

Arthur Kitto consulted with Dr. Perreten after noticing problems with his eyesight. Dr. Perreten advised immediate cataract removal surgery on the left eye to which Kitto consented. Dr. Gilbert was contacted by Dr. Perreten's office to provide her services as anesthesiologist.

At the beginning of the operation, anesthesia was administered to Kitto by Dr. Gilbert, rendering Kitto unconscious. The corrugated tubing connecting Kitto to the anesthesiology machine was taped to his chest by Dr. Gilbert. This was done to prevent displacement of the tubing during the operation.

Dr. Perreten or his assistant or both of them then draped sterile sheets over Kitto's body, possibly aided in this endeavor by a nurse. Only a small area around the left eye was left exposed so that the tubing and connections were completely covered. Dr. Gilbert testified that the connections were properly fitted at that time.

Then, a nurse wheeled in an instrument tray which was placed over Kitto's chest. According to Dr. Gilbert, the nurse had difficulty adjusting the height of the tray, and the tray slipped and may have struck Kitto's chest or the draped sheets. The connection was not examined following this alleged incident.

In the midst of surgery, Kitto became inadequately anesthetized and coughed, causing the expulsive loss of the eye. Dr. Gilbert then discovered that the connection had become dislodged so that Kitto had not remained connected to the anesthetic supply as had been intended.

Dr. Gilbert in unrebutted testimony stated that the disconnection, with the concomitant inadequate anesthesia, in all probability caused Kitto to cough. There was no evidence, however, demonstrating the cause of the disconnection, other than the possibility that the instrument tray touched the

tubing, that the tube was improperly connected, or that it was displaced during the taping or draping.

I. Res Ipsa Loquitur

The Kitto's primary contention is that the trial court erred in failing to permit the jury to consider the presumption of negligence embodied in the doctrine of res ipsa loquitur. We agree that, under the circumstances, the trial court should have instructed the jury on res ipsa loquitur.

Res ipsa loquitur is a rule which presumes evidence which applies when it is judicially determined that a particular unexplained occurrence creates a prima facie case of negligence without proof of specific misfeasance. St. Luke's Hospital v. Schmaltz, 188 Colo. 353, 534 P.2d 781 (1975); Weiss v. Axler, 137 Colo. 544, 328 P.2d 88 (1958). Where applied it takes the place of evidence of negligence. Instruction on res ipsa loquitur is proper where the evidence reveals the occurrence of a harm which ordinarily would not have occurred, but for negligence, and which is caused by an agency or instrumentality within the exclusive control of the defendants sought to be charged with liability without contribution by plaintiff, and under circumstances such that evidence as to the explanation of the events causing the harm is more accessible to the defendants than to the plaintiff. Hilzer v. MacDonald, 169 Colo. 230, 454 P.2d 928 (1969); Hook v. Lakeside Park Co., 142 Colo. 277, 351 P.2d 261 (1960). See also Weiss v. Axler, supra.

A corollary requirement is that no direct evidence exists establishing that a specific act of negligence was the only likely cause for the harm. See Denver Tramway Corp. v. Kuttner, 95 Colo. 312, 35 P.2d 852 (1934). Each defendant in this case asserts there was no evidence establishing that a particular action caused the disconnection. The record supports these assertions. The mere introduction of evidence as to how an accident could have occurred and its possible causes does not necessarily preclude application of res ipsa loquitur so long as that evidence does not clearly resolve the issue of culpability. Scott v. Greeley Joslin Store Co., 125 Colo. 367, 243 P.2d 394 (1952). See also Hook v. Lakeside Park Co., supra.

Hence, we must determine whether the evidence satisfied the requirements for the application of res ipsa loquitur. All defendants concede that no voluntary act of plaintiff was a causative factor. Disputed are the likelihood of negligence, exclusive control, and the accessibility of the evidence. These matters we resolve in favor of the applicability of res ipsa loquitur.

The evidence indicated that a disconnection of the tubing without negligence was improbable. Testimony revealed the snugness of the type of pressure fitting which was dislodged. Expert testimony adduced by Dr. Perreten, on the issue of informed consent, illustrated that the detachment of this connection was not a contemplated risk of the surgery. Indeed, the circumstances were such that a jury could find the disconnection to be evidence of negligence without the aid of expert testimony. See Farrah v. Patton, 99 Colo. 41, 59 P.2d 76 (1936).

It is argued, however, that the testimony of Dr. Perreten and Dr. Gilbert demonstrated that this incident could have occurred without negligence. Both doctors testified that a patient could begin to rise out of the appropriate level of unconsciousness despite the exercise of due care. This testimony and argument ignore the fact that by unrebutted evidence the cause of the loss of Arthur Kitto's eye was shown to be the disconnection of the anesthesia equipment, and not some other event such as improper calculation of the quantity of anesthetic required. There was no testimony that this disconnection could have occurred without negligence.

Dr. Perreten and the hospital next question whether they had exclusive control over the instrumentality causing the occurrence. The basis for this argument is Dr. Gilbert's testimony that she had exclusive control of the anesthesiology equipment and of the patient's level of consciousness. However, this testimony is in direct conflict with other uncontradicted evidence that the An insensible passive recipient of treatment administered by other parties who is injured in the course of that treatment is hardly in a position to demonstrate each person's exclusive control. Thus, it is sufficient to show, as was done here, that at the relevant time, the instrumentality was under the control of no person who was not a defendant or an employee of a defendant. Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 (1945). See also Weiss v. Axler, supra; Zimmerman v. Franzen, 121 Colo. 574, 220 P.2d 344 (1950). A careless act during any of the preliminary procedures possibly could have caused the disconnection. Under such circumstances, the exclusive control requirement was satisfied.

instrumentality was at least partially under the control of each defendant at some time during the operation through their various participation in taping and draping Kitto and in positioning the instrument tray.

Finally, we reject the contention that, once the dislodged anesthesia connection was shown to be the offending instrumentality, the Kittos had equal means of ascertaining the cause of the occurrence. Because he was anesthetized, Arthur Kitto had no knowledge as to the cause of the disconnection. His wife was not present in the operating room, and the only conscious persons there were defendants or employees of defendants. Thus, in the absence of voluntary disclosure by the participants as to the precise cause of the disconnection, the Kittos remained at an evidentiary disadvantage in this respect. This is precisely what res ipsa loquitur is designed to combat. Ybarra v. Spangard, supra. See also St. Lukes Hospital Ass'n v. Long, 125 Colo. 25, 240 P.2d 917 (1952).

We therefore conclude that, since the evidence did not resolve the issue of culpability, the trial court erred in filing to submit a res ipsa loquitur instruction to the jury to aid in its determination of...