Marvulli v. Elshire

• Decision Date: 15 August 1972
• Citation: Marvulli v. Elshire, 103 Cal.Rptr. 461, 27 Cal.App.3d 180 (Cal. App. 1972)
• Court: California Court of Appeals
• Parties: Josephine MARVULLI and Louis Marvulli, Plaintiffs and Appellants, v. H. Donel ELSHIRE, Defendant and Respondent. Civ. 39375.

Page 461

103 Cal.Rptr. 461

27 Cal.App.3d 180

Josephine MARVULLI and Louis Marvulli, Plaintiffs and Appellants, v. H. Donel ELSHIRE, Defendant and Respondent.

Civ. 39375.

Court of Appeal, Second District, Division 1, California.

Aug. 15, 1972.

Gilbert, Thompson, Kelly, Crowley & Jennett and Burt J. Channing, Los Angeles, for plaintiffs and appellants.

Spray, Gould & Bowers, Los Angeles, for defendant and respondent.

LILLIE, Acting Presiding Justice.

While undergoing a hemorrhoidectomy performed at a Los Angeles hospital in May of 1967, plaintiff-wife suffered an adverse reaction ('hypoxia') to the anesthetic administered--her respiration either stopped or became shallow for a period of time fixed at from less than a minute to three minutes. After completion of surgery, following re-establishment of respiration, she was taken to the hospital's intensive care unit; six days later, however, she had a relapse and lost consciousness for 10 days. After six weeks in the hospital, she was taken home. Plaintiff-husband testified that she was helpless--she could neither walk, talk nor see. His testimony was corroborated by Dr. Peter Rocovich, specializing in neurological surgery, who stated that as of the trial date (June 1969) plaintiff-wife (while improved) was still 100 per cent disabled due to brain damage caused by lack of oxygen at surgery.

Plaintiffs' claims of medical malpractice were tried to a jury; after impanelment of the jury a settlement was effected as to defendant hospital and two defendant physicians, including the anesthesiologist; they were, accordingly dismissed from the case, and the trial continued as to the sole remaining defendant, the operating surgeon (Dr. Elshire). Plaintiffs appeal from judgment entered on an adverse jury verdict.

The sole assignment of error relates to two proposed instructions covering (in effect) the responsibility of defendant Elshire for the asserted negligence of the anesthesiologist and a hospital nurse, one Beyer, who assisted Dr. Elshire during the operation. The first, requested by plaintiffs, is in the language of BAJI 6.06; ¹ the second is 'DEFENDANT'S SPECIAL JURY INSTRUCTION NO. 1.' ² Neither was given by the trial court; instead, the court prepared and read its own instruction covering the issue of vicarious liability. ³

The following is a summary of certain relevant background facts. The anesthetic used on plaintiff-wife was a 'caudal epidural,' a local agent which deadened or numbed the patient's rectal area; this was supplemented by an intravenous injection of sodium pentothal. Both were administered by Dr. Clifford Winchell who had served as a staff anesthesiologist at the hospital for some 18 months. Defendant Elshire had previously worked with Dr. Winchell on other occasions; he first learned of Winchell's assignment to the instant operation when he checked a bulletin board used for such purposes. No consultation was had between the two doctors about the type of anesthetic agent to be used, nor did Dr. Elshire know the content of the material used on the patient when he entered the operating room--he testified that 'It is the prerogative that lies with the anesthesiologist.' After Dr. Elshire had made a guide stitch at the base of the hemorrhoidal plexus to control bleeding followed by an elliptical incision, he noted duskiness of blood possibly indicating impaired respiration. He called this to the attention of Dr. Winchell who concurred in that view. The patient's position was then changed from prone to supine; her respiration was assisted by means of an instrument made of hard rubber with a hollow center and shaped to conform to the configuration of the oral cavity. (Both Dr. Elshire and Dr. Winchell insisted that this instrument was not an endotracheal tube, as testified to by at least one nurse, since (in the opinion of a defendant's expert) standard practice does not endorse the use of such tube when a caudal epidural anesthetic is administered.) Upon Dr. Winchell's assurance that it could safely be done, surgery was then continued and completed.

Plaintiffs called as a witness Lucille Beyer, a registered nurse at the hospital who assisted defendant Elshire at the operation; according to plaintiffs, since she had also assisted him on other occasions, she was Elshire's agent for the purpose of vicarious liability. They claim that such liability should be imputed to defendant because she testified that before the first incision was made she thought that the patient's anus and rectum looked rather dark--indicating the lack of oxygen; this was confirmed after the incision; she failed to mention these matters to Dr. Elshire immediately because 'he is awfully sharp and I though he would pick it up'; defendant said nothing until he started to remove the second hemorrhoid; the blood was still rather dark and defendant said, 'Oh, my God, is she all right?' She further testified 'At this point I was muttering, 'The blood is black,' and Dr. Elshire said, 'Is she all right,' to Dr. Winchell, and he said, 'No, she isn't. " The above testimony, we note, was substantially disputed by defendant Elshire.

Several days after the operation plaintiff-wife suffered a relapse involving the serious consequences hereinabove mentioned; there was a division of medical opinion as to the contributing causes therefor. Dr. Stubrin (one of the dismissed defendants) had been the admitting physician--he treated plaintiff-wife for several months prior to her surbery. In his opinion, within three or four days his patient had completely recovered from the incident in surgery and then suffered a cerebral vascular accident; he also testified that the lining of the rectum was discolored because of a prolonged intake of a brownish-black laxative (cascara). Plaintiffs' witness, Dr. Rocovich, was of the opinion that the blackness of the blood indicated a lack of oxygen within the blood itself; that surgery should have been discontinued to allow the anesthesiologist to deal further with the problem; that hypoxia occurred with damage to the brain cells ultimately resulting in the relapse several days later; that such relapse was not due to a stroke or a cerebral vascular accident. Other divergent views of medical experts need not be mentioned or discussed.

In light of the foregoing matters, instructions on res ipsa loquitur were requested by both sides and read to the jury. It is not argued that the evidence does not substantially support the verdict eventually reached; rather, it is argued that a different determination might have resulted if certain instructions had, or had not, been given.

Plaintiffs first contend that the instruction requested by defendant (fn. 2, Supra) 'and given by the court improperly deprived (them) of the doctrine of Respondeat superior.' The simple answer to such claim is that the instruction was Not given having been 'refused' by appropriate notation of the trial court to that effect. There is thus no basis for the first of plaintiffs' assignments of error so carelessly asserted; we proceed, therefore, to the instruction requested by plaintiffs (fn. 1, Supra) which the court refused.

The refused instruction was taken from BAJI 6.06 captioned 'Liability of Surgeon for Negligence of Assistants and Nurses.' The editors' Comment thereto includes citation of Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687 wherein the court noted, after earlier citation of Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409 (also cited in the Comment), that '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; . . . and post surgical care by the surgeon, a hospital physician, and nurses.' (25 Cal.2d pp. 493--494, 154 P.2d p. 691.) The court held that res ipsa loquitur applied under the facts there present. While unconscious under a general anesthetic the plaintiff suffered an arm and shoulder injury resulting in paralysis; it was, therefore, error for the trial court to nonsuit plaintiff. Ybarra was followed by Seneris v. Haas, 45 Cal.2d 811, 291 P.2d [27 Cal.App.3d 185] 915 wherein the court 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." (P. 831, 291 P.2d p. 927.) In Seneris, however, wherein it was sought to hold defendant obstetrician (Dr. Haas) for the alleged negligence of the anesthesiologist, ...