Milias v. Wheeler Hospital

• Decision Date: 17 March 1952
• Citation: 241 P.2d 684,109 Cal.App.2d 759
• Court: California Court of Appeals Court of Appeals
• Parties: MILIAS v. WHEELER HOSPITAL. Civ. 14840.

Page 684

241 P.2d 684

109 Cal.App.2d 759

MILIAS v. WHEELER HOSPITAL.

Civ. 14840.

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

March 17, 1952.

James F. Boccardo, San Jose, Lewis J. Yapp, San Jose, of counsel, for appellants.

Bell, Anderson, Ropers & Majeski, Redwood City, for respondent.

PETERS, Presiding Justice.

This is an action brought through her guardian ad litem by Catherine Milias, a minor for her injuries, and by her father for his medical expense, all alleged to have been caused or incurred as a result of the negligence of the defendant, the Wheeler Hospital. The hospital is the sole defendant. At the trial the cause of action by the father was, by consent, dismissed. The jury brought in a verdict in favor of the hospital. From the judgment entered on that verdict the plaintiff appeals. Her principal contention is that the instructions on res ipsa loquitur were erroneous.

The facts are as follows: In February of 1948 Catherine was about eight and a half years of age. On Lincoln's birthday she bruised the calf of her right leg while riding her bicycle. By February 14th the leg was quite painful and she was put to bed by her parents. On the 15th the leg was worse, and on the 16th her father requested Dr. Melkonian to call at the house to see the child. The doctor was told that a short time before the bicycle incident the child had had an infected thumb, which had caused a high fever, nausea, and a swelling of the right leg. He discovered that the thumb was still inflamed. He ascertained that the right leg was swollen, tender and red, that the child's heart was beating very rapidly, and that she had a temperature of 104.8. He knew that the child was desperately ill, diagnosed the condition as osteomyelitis, believed her chances of recovery were slim, and advised immediate hospitalization. The child was taken to Wheeler Hospital, where she was admitted in a semicomatose condition at 11 a. m. on February 16th. Her temperature was then 105.8. Within half an hour it had risen to 106.4. Laboratory tests confirmed the provisional diagnosis, and also showed that the blood stream had become infected with both staphylococcus and streptococcus germs. Either is serious, but when they appear together the condition is extremely dangerous. Dr. Josephson, who operated on the child on the 17th, believed that, unless she quickly responded to treatment, she would die within a few hours, and it was his belief then that she would probably die.

When Catherine was brought to the hospital Dr. Melkonian prescribed that penicillin and 'force fluids' be administered, and that 'continuous warm' magnesium sulphate or epsom salt compresses be applied to the right leg, together with a heating pad. The medical evidence is to the effect that for this type of bone and blood poisoning the prescribed treatment was the best that could have been given, and no contention is made to the contrary.

The treatments prescribed by Dr. Melkonian were administered first by nurse Seifkin and then by nurse Thrasher, both employees of the hospital. Seifkin testified that when Catherine was admitted to the hospital the skin of the infected leg was clear except for a red spot above the knee, which Mrs. Milias told her had been caused by the use of a hot water bottle. Seifkin started the warm compress treatment about 2 p. m. and went off duty at 3 p. m., and was replaced by nurse Thrasher. The latter observed that the heating pad was on 'low,' continued it there, and continued the warm compresses until she went off duty at 11 p. m.

Dr. Melkonian saw his patient many times that day, the last time about 10:30 p. m. On each visit he observed the leg and saw no blistering. He ordered the warm compresses continued. On the morning of the 17th he observed a blister on the calf of the leg, and ordered the compresses discontinued. He testified that each time he saw the leg, compresses, and heating pad, the conditions he saw were in accord with his orders; that he was not concerned with a possible burn, but with saving the child's life; that the burn of which the child complains was simply an unexpected result of the necessary treatment; that the compresses were essential to save the child's life; and that the burn was as much the result of the child's general condition as anything else.

When nurse Thrasher went off duty at 11 p. m. on February 16th, she was replaced by nurse Pyle, who was employed by Mr. Milias, and who was not an employee of the hospital. Her testimony was not too clear. She testified that when she came on duty, Catherine's condition was very poor. Her leg was red and swollen, and under the moist dressing was one large blister and several smaller ones. She stated that she called these blisters to the attention of some unidentified nurse, and she did enter, on the patient's medical report, a statement about the blisters. On direct examination she could not remember whether the heating pad was being used when she came on duty, and on cross-examination stated that it was not then being used. But she testified that the dressings on the leg were then 'hot.' She stated that she could not remember whether she continued the hot compresses, but she was positive that she carried out the doctor's orders, and the order sheet called for compresses. She also testified that she may have discontinued the compresses after she discovered the blisters.

These various measures were successful in bringing the poisoned condition to a head, and in limiting its diffusion. Dr. Josephson, an orthopedic surgeon, drained the infected area on the 17th, and removed a cup and a half of pus. He found the soft tissue of the leg extensive infected. He testified that all concerned were engaged in an all-out effort to save Catherine's life, and that heat on the leg was necessary in this effort. He also testified that frequently in cases of osteomyelitis, scar tissue of the type on Catherine's leg develops. In a letter to counsel he had stated that when he observed the patient she had a badly swollen leg, that there was a red area 'evidently of thermal origin' on the calf; that the compresses had brought the condition to a head, and thus limited the area of infection; that it was too bad that the patient was in such a condition that she did not feel the overhot applications; and that no great amount of tissue was destroyed by the burn. He testified that the infection from which Catherine suffered would affect the amount of heat that she could take, and that even a compress of 100 degrees Fahrenheit might cause a reaction to a massively infected area.

A plastic surgeon, Dr. Brock, first testified that the condition could have been caused by a thermal agent externally applied, and that Catherine had a third degree burn, but also testified that the scarring could have been caused by the osteomyelitis.

All of the testimony is to the effect that at all times the electric heating pad was on 'low' temperature.

Catherine made a complete recovery, after some twenty-three days in the hospital. She has full use of her legs, and has no limp. The scars are not obvious if she wears...