Leonard v. Watsonville Community Hospital

• Court: California Supreme Court
• Writing for the Court: GIBSON; CARTER; SHENK
• Citation: Leonard v. Watsonville Community Hospital, 47 Cal.2d 509, 305 P.2d 36 (Cal. 1956)
• Decision Date: 21 December 1956
• Parties: Grace T. LEONARD, Plaintiff and Appellant, v. WATSONVILLE COMMUNITY HOSPITAL et al., Defendants and Respondents. S. F. 19485

Page 36

305 P.2d 36

47 Cal.2d 509

Grace T. LEONARD, Plaintiff and Appellant, v. WATSONVILLE COMMUNITY HOSPITAL et al., Defendants and Respondents.

S. F. 19485.

Supreme Court of California

Dec. 21, 1956.

Rehearing Denied Jan. 16, 1957.

Crist, Peters & Donegan and Elton F. Martin, Palo Alto, for appellant.

Wyckoff, Parker, Boyle & Pope, McCarthy & Franich and Harry F. Brauer, Watsonville, for respondents.

GIBSON, Chief Justice.

A scissors-shaped metal instrument about six inches long, called a Kelly clamp, was left in plaintiff's abdomen when an operation was performed on her at defendant hospital. The operation was commenced by Doctors Lacy and Slegal. Kay Pogatschnik, who was an employee of the hospital, acted as surgical nurse. Doctor Eiskamp assisted in a part of the operation at the request of Doctor Lacy. Plaintiff was unconscious during the entire operation, which lasted approximately five hours. She was in considerable pain during the ten days she remained in the hospital following the operation, and the pain persisted for several months after she returned home. X-ray pictures taken about six months after the operation revealed a clamp lodged in the upper right quadrant of her abdomen. The clamp was removed, and plaintiff brought this action to recover damages from the hospital, the doctors and the surgical nurse. At the close of plaintiff's case motions for nonsuit were granted as to Eiskamp. Pogatschnik and the hospital, and plaintiff has appealed from the ensuing judgment. ¹

The questions presented are whether an inference of negligence was raised under the doctrine of res ipsa loquitur and whether, if such an inference arose, it was dispelled as a matter of law.

Evelyn Craig, who was superintendent of the hospital, and defendants Lacy, Slegal and Eiskamp were called by plaintiff to testify under section 2055 of the Code of Civil Procedure, which provides that in a civil action a party may call and examine an adverse party.

The testimony of Lacy, who was in charge of the operation, may be summarized as follows: He scheduled the operation after deciding that an exploratory examination of the upper right quadrant of plaintiff's abdomen should be in made. The hospital assigned Pogatschnik to act as surgical nurse, furnished all equipment and instruments, and charged plaintiff for the use of the room and for the services of the nurse. The operation began with Lacy and Slegal making an incision from plaintiff's navel upwards, exposing her gall bladder, which was diseased.

About forty minutes after the operation was begun, Lacy requested Eiskamp, who had been performing surgery in another part of the hospital, to look at plaintiff's gall bladder. Eiskamp made a visual inspection and recommended that the gall bladder be removed. After Eiskamp lift the room, Lacy and Slegal discovered a 'mass' in the sigmoid colon, which appeared to be cancerous. Lacy again consulted Eiskamp, who agreed that the mass should be removed and offered to help. The doctors decided not to operate on the gall bladder, and, while Lacy began to close the upper half of the incision, Eiskamp and Slegal prepared to remove the mass, which was in the lower left quadrant. None of Eiskamp's work was performed in the supper portion of plaintiff's abdomen, and he left the room before final closure of the incision. During the operation Lacy and Slegal used about 18 Kelly claims which are uncurved scissors-shaped instruments. Eiskamp did not use anything but curved clamps. Lacy paid Slegal his fee but never received a bill from Eiskamp for his services.

Lacy further testified that the surgical nurse keeps a set of instruments on a tray very close to the surgical field and that one of her principal functions is to hand instruments to the doctors and take them back from him. No request for an instrument count was made by Lacy. The practice of hospitals generally is to maintain a sponge count before closure of an incision and to account for the needles used in suturing. This practice is followed by the nurses at defendant hospital.

Slegal's testimony substantially confirmed that of Lacy as to the sequence of events in the operating room. He said that Eiskamp did not take part in closing the upper portion of the incision and left before final closure of the abdomen.

Eiskamp testified that no Kelly clamps were used in his part of the operation, that he 'had nothing to do with the gall bladder' and that in order to speed the operation he worked with Slegal on the tumor in the lower left quadrant of the abdomen.

Superintendent Craig testified that surgical instruments are furnished by the hospital, that they are placed in sterile packs containing a specified number and that she believed there are 18 Kelly clamps in a pack. After an operation all instruments are taken directly from the operating room, cleaned and reassembled into packages by a nurse or some other hospital employee. At the time of plaintiff's operation no one person was designated as being responsible for collecting and reassembling the instruments, and none of the hospital employees reported that any instrument was missing. Hospital in the area 'have no established practice of instrument counting either before or after surgery.' Sponges and needles are usually counted, and an instrument count is made if requested by the surgeon.

When a foreign object is unintentionally left in a patient's abdomen it is ordinarily the result of the negligence of someone. Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409. And where a patient receives unusual injuries while unconscious, all of the persons who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. The evidence is sufficient to raise an inference of negligence under the doctrine of res ipsa loquitur as to Eiskamp, Pogatschnik and the hospital. Eiskamp assisted in the operation; at one time or another during the operation the control of the instrument left in plaintiff's body was in the hands of the nurse; the hospital employed the nurse and furnished and reassembled the instruments. This places upon them the burden of initial explanation. Ybarra v. Spangard, supra.

Plaintiff contends that the inference of res ipsa loquiture was not dispelled as a matter of law and that therefore the court erred in granting the motion for a nonsuit. The same test is applicable in determining when the res ipsa loquitur inference is dispelled as a matter of law as in deciding when any other inference is conclusively rebutted. See Rose v. Melody Lane, 39 Cal.2d 481, 487, 247 P.2d 335; Leet v. Union Pac. R. R. Co., 25 Cal.2d 605, 621-622, 155 P.2d 42, 158 A.L.R. 1008. It has long been the rule in this state that a nonsuit may be granted only when, disregarding conflicting evidence, giving to the plaintiff's evidence all the value to which it is legally entitled, and indulging in every legitimate inference which may be drawn from that evidence, the court properly determines that there is no substantial evidence to support a verdict in favor of the plaintiff. Seneris v. Haas, 45 Cal.2d 811, 821, 291 P.2d 915; In re Estate of Caspar, 172 Cal. 147, 150, 155 P. 631. There is, however, a qualification on this broad general rule. It is settled that where the evidence raises an inference that a fact exists, and either party produces evidence of the nonexistence of the fact that is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved, the nonexistence of the fact is established as a matter of law. See Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868. In these circumstances the inference is dispelled as a matter of law, and, if the fact inferred is necessary to establish an essential element of the plaintiff's case, a nonsuit or directed verdict is proper. Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 77 P.2d 1059 (directed verdict); Crouch v. Gilmore Oil Co., Ltd., 5 Cal.2d 330, 54 P.2d 709 (nonsuit); Ceranski v. Muensch, 60 Cal.App.2d 751, 141 P.2d 750 (directed verdict); Johnson v. Black Company, 33 Cal.App.2d 363, 91 P.2d 921 (insufficiency of evidence).

The testimony which defendants claim dispels the inference of res ipsa loquitur as a matter of law was elicited from witnesses called under section 2055 of the Code of Civil Procedure, ² and plaintiff contends that such evidence cannot be used in ruling on a nonsuit to dispel an inference on which plaintiff relies. Section 2055 provides in effect that a party to a civil action may be examined as if under cross-examination by the adverse party and that the party examining such witness shall not be bound by the witness's testimony and may rebut it by other evidence. Before section 2055 was enacted, a litigant who called an adverse party to testify found that the witness was treated as his own and that his examination was restricted by the rules applicable to direct examination. See Smellie v. Southern Pacific Co., 212 Cal. 540, 555, 299 P. 529. This rule was changed by section 2055 as that testimony elicited by a plaintiff under this section is not treated as testimony of his own witnesses but as testimony obtained under cross-examination of the defendant's witnesses. Smellie v. Southern Pacific Co., 212 Cal. 540, 556, 299 P. 529; Figari v. Olcese, 184 Cal. 775, 782, 195 P. 425, 15 A.L.R. 192. It is clear, however, that all such testimony is evidence in the case and that the provision in the section that a party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, 'but merely as it declares, that the party calling such witness shall not be concluded from rebutting his testimony, or from impeaching the witness.' Figari v. Olcese, 184 Cal. 775, 782, 195 P. 425, 528; see ...