Mayers v. Litow

• Decision Date: 15 October 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Aida MAYERS and Alex Mayers, Plaintiffs and Appellants, v. Sidney S. LITOW and Midway Hospital, Defendants and Respondents. Civ. 22305.

Page 351

316 P.2d 351

154 Cal.App.2d 413

Aida MAYERS and Alex Mayers, Plaintiffs and Appellants, v. Sidney S. LITOW and Midway Hospital, Defendants and Respondents.

Civ. 22305.

District Court of Appeal, Second District, Division 2, California.

Oct. 15, 1957.

Robertson, Harney, Drummond & Dorsey, Los Angeles, for appellants.

Reed, Callaway, Kirtland & Packard, Los Angeles, for respondent Litow.

Dryden, Harrington, Horgan & Swartz, Vernon G. Foster, Los Angeles, for respondent Midway Hospital.

FOX, Justice.

This is an action by a husband and wife for damages predicated upon alleged malpractice arising out of a thyroidectomy performed on plaintiff wife by defendant Litow. The trial court granted judgments of nonsuit in favor of both the doctor and the hospital. Plaintiffs have appealed.

Mrs. Mayers first met Dr. Litow in 1951 when he performed a hysterectomy on her. In 1952 he removed her gall bladder. She had had a nodule on her neck for several years; however, she never experienced any truoble with her neck or throat. Upon examining her prior to the gall bladder surgery, Dr. Litow noticed the nodule ('a growth within the thyroid gland') on her neck and advised surgery. He was of the opinion that it was serious and required surgery since it was a 'pre-malignant lesion.' No contrary medical testimony on this point was produced by plaintiffs. Since the gall bladder surgery and the thyroid operation could not be undertaken at the same time, Dr. Litow decided to carry out the planned gall bladder operation first, and perform the other surgery after plaintiff had recuperated. He did not tell her that her ability to speak or breathe would be affected by the operation. Certain tests were made before the thyroid surgery.

Mrs. Mayers entered Midway Hospital for the thyroidectomy on September 30, 1952. She was examined by a medical student, who made notations on her hospital record concerning her physical examination and case history. Dr. Litow testified that he did not rely on this record in performing the operation. Dr. Litow was on the staff of the hospital and used it for many of his operations. He made the arrangements concerning Mrs. Mayers' time of admission and operation, leaving the financial arrangements with the hospital to be made by plaintiffs. This was the usual procedure.

Before the operation, at the request of Dr. Litow, Dr. Pies visited plaintiff wife at the hospital and examined her vocal cords. He found them to be normal in appearance and mobility. She was given sedatives in the evening and on the morning of the operation on October 1, 1952. Dr. Litow performed the operation with Dr. Feinstein assisting. The latter was engaged by Dr. Litow to assist in the operation. Dr. Feinstein was also on the staff of the hospital. Both doctors testified that there was nothing unusual about this operation and that no complications were observed. The tumor in the thyroid gland was removed, and was later found not to be cancerous.

After the operation plaintiff wife complained of difficulty in speaking and breathing. Dr. Pies, plaintiffs' own witness, testified that he examined Mrs. Mayers two days after the operation. He found that the right vocal cord was normal, but that there was an impairment of the left cord of approximately 30%. Mrs. Mayers denied having been examined by Dr. Pies at that time. She testified that she did not see him from the time of his visit before the operation until she went to his office for an examination in November. At that time he found there was no movement of the left vocal cord. He expressed the opinion that the change was due to the healing and 'fibrosis.' He was also of the opinion that the difficulty in breathing was not permanent and that her cold contributed to the condition.

In the weeks following the operation Mrs. Mayers went to see Dr. Litow several times. In response to her questions about her hoarseness, he said that it would go away. He sent her to Dr. Pies in November for the aforementioned examination. His main reason was that she had a bad cold and was having ear trouble, but he also wanted Dr. Pies to look at her vocal cords.

Mrs. Mayers went to several different doctors in the ensuing months. One of these was Dr. Wexler, who testified that he first examined her six months after the surgery. He found her left vocal cord to be totally paralyzed.

By the time of the trial Mrs. Mayers' condition was much improved. However, there was still a certain 'stride' or noise in breathing and her voice was somewhat hoarse.

Much testimony was introduced at the trial concerning the recurrent laryngeal nerve. This nerve arises below the larynx and runs upward to the larynx, supplying the muscles which move the vocal cords.

Dr. Bellew examined Mrs. Mayers a few days before trial in 1956. Based upon a hypothetical question wherein it was assumed that there was no movement of the left cord after the operation, it was his opinion that the injury was caused by some severance of the nerve. He testified also concerning the present condition of Mrs. Mayers' left vocal cord and her hoarseness. He stated that the cord was 'fixed in the midline, shortened and fibrotic.'

All the medical experts seemed to agree that if the recurrent laryngeal nerve is severed, a complete paralysis of the vocal cord would immediately result. It was not disputed that it would not be common practice for a doctor to sever the recurrent laryngeal nerve during a thyroid operation.

Dr. Litow testified that he did not sever the recurrent laryngeal nerve during the surgery and Dr. Feinstein stated that he did not see Dr. Litow cut that nerve. The patient during surgery showed no signs that would indicate that the nerve had been severed, such as a rise in respiration or in temperature, difficulty in breathing, or an increased pulse rate. Dr. Litow testified also that edema might cause a paralysis but that function would ordinarily be restored unless figbosis set in.

Plaintiffs relied also on certain admissions allegedly made to them by Dr. Litow to the effect that he was 'sorry that it happened, he may have cut a nerve, because the nerves are very little. When you start to do anything it may happen in a thing like that.'

Plaintiffs argue that (1) the nonsuit should not have been granted, (2) they were entitled to the application of the doctrine of res ipsa loquitur against both defendants and (3) the trial court erred in excluding certain evidence.

A nonsuit should be granted only when, disregarding conflicting evidence and giving plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference that may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. Raber v. Tumin, 36 Cal.2d 654, 656, 226 P.2d 574. In reviewing the evidence, 'all presumptions, inferences and doubtful questions must be construed most favorably to the plaintiff.' Hinds v. Wheadon, 19 Cal.2d 458, 460, 121 P.2d 724, 725.

The judgment of nonsuit in favor of defendant Midway Hospital was patently correct. Defendant Litow performed the surgery with the assistance of Dr. Feinstein. No evidence was introduced to show that any other possible agents or employees of the hospital were present during the operation. These two doctors were both on the staff of defendant Midway Hospital; this meant that they were privileged to bring their cases to the hospital. Normally the question of agency is one of fact for the jury. Seneris v. Haas, 45 Cal.2d 811, 831, 291 P.2d 915, 53 A.L.R.2d 124. But in this case there is nothing in the record from which it may legitimately be inferred that defendant Litow or Dr. Feinstein was an agent or employee of the hospital. The doctors merely used the hospital facilities to perform the operation. It does not appear that they received any remuneration from the hospital for their services. Defendant Litow testified that he would arrange with the hospital for the use of facilities and would tell the patient to go to the hospital on the appointed day. Financial and other arrangements were thereafter made between the hospital and the patient. Mrs. Mayers had been operated upon previously in Midway Hospital; hence plaintiffs were familiar with the procedure and followed it on the occasion of the thyroid operation. It does not appear that defendant Litow ever did or said anything by which plaintiffs could reasonably infer that he was an agent of the hospital. It seems clear, therefore, that defendant Litow was in the position of independent contractor in regard to defendant Midway Hospital, and plaintiffs have failed to introduce evidence justifying an inference to the contrary. See Ybarra v. Spangard, 25 Cal.2d 486, 491, 154 P.2d 687, 162 A.L.R. 1258, holding that a surgeon was an independent contractor rather than an employee of the hospital, as an anesthetist or special nurse might be. Moreover, plaintiffs have presented neither argument nor authority to support their position on this point.

There is another theory upon which plaintiffs seek to hold the hospital liable. They base this claim of negligence upon the fact that plaintiff wife was examined by a medical student (when she entered the...