Morgenroth v. Pacific Medical Center, Inc.

Citation126 Cal.Rptr. 681,54 Cal.App.3d 521
PartiesCharles Henry MORGENROTH, Plaintiff and Appellant, v. PACIFIC MEDICAL CENTER, INC., et al., Defendants and Respondents. Civ. 34991.
Decision Date20 January 1976
CourtCalifornia Court of Appeals

Ralph J. Gampell, Gampell & Teter, San Jose, for plaintiff and appellant.

Gudmundson, Siggins & Stone, W. W. Gudmundson, San Francisco, for Selzer and Kelly.

Hassard, Bonnington, Rogers & Huber, Robert D. Huber, San Francisco, Richard G. Logan, Oakland, for Sakai and Kerth.

TAYLOR, Presiding Justice.

Plaintiff, Charles Morgenroth, appeals from judgments of nonsuit entered at the close of the presentation of his evidence of liability in an action for malpractice against his doctors, A. Selzer, J. Sakai, W. Kerth and J. Kelly, and the Pacific Medical Center. 1 He contends that pursuant to the recently established rule of Cobbs v. Grant, 8 Cal.3d 229, 244, 104 Cal.Rptr. 505, 502 P.2d 1, he did not give an informed consent to the internal mammary visualization procedure that increased the risk of the stroke he suffered during the subsequent procedure of coronary arteriography, to which he consented. He also asserts that he adduced sufficient evidence to go to the jury on additional theories of liability. The case raises a question of proximate cause and whether a causal relationship existed between the physicians' failure to inform and the injury to Morgenroth, as well as a question of first impression as to whether the amount of additional information required to be revealed is a matter for expert testimony, as the trial court ruled. For the reasons set forth below, we have concluded that the judgment must be affirmed.

Viewing the record in the light most advantageous to Morgenroth, the following pertinent chronology of events, adopted from his brief and the record, appears: In 1963, Morgenroth was 61 years old and retired from Lockheed, where he had been a cost control supervisor, and, with his wife of 31 years, moved to Berry Creek, a remote mountain area about 25 miles from Oroville. He then worked as a real estate developer, engaged in subdividing and selling a parcel of some 100 acres into approximately 1/2 acre lots. He acted as his own general contractor and also did the actual selling of the lots to customers.

At the time of his retirement from Lockheed, he had shortness of breath on exertion, a tightness in his chest at times and cramping in the calves of his legs. In late 1966 and early 1967, when these symptoms became worse, he was under the medical care of Dr. Frederick L. Evans of Chico, a specialist in internal medicine. Dr. Evans referred him for medical care to Dr. Selzer in San Francisco, an internal medicine specialist with a sub-specialty in cardio-vascular disease, with an office at the Pacific Medical Center. For the examination in connection with this referral, Morgenroth was admitted to the Pacific Medical Center on February 14, 1967. Dr. Selzer, testifying pursuant to Evidence Code section 776, indicated that Morgenroth's main complaints were of chest pain, provoked by any form of exercise or excitement (angina) and also cramps in the legs and groin on walking one block on the flat; this was caused by hardening of the arteries with resultant decrease in the blood flow to the heart muscle from the coronary arteries and the muscles of the legs. This decrease in the blood flow was the cause of the pain.

Among the tests that were performed on Morgenroth were an electrocardiogram which was abnormal and an electroencephalogram which was interpreted by different specialists to show very mild and certainly equivocal change, and also to be normal. A Masters test (an electrocardiogram taken during and immediately after the stress of walking up and down a few steps) was taken and Morgenroth went 23 steps as compared with the 20 minimum requirement. In addition, a cardiac catheterization was performed. In this procedure, a catheter is passed into a vein and then threaded through the veins to enter the right auricle of the heart and then into the right ventricle, so that various measurements are recorded. Dr. Selzer called into consultation Dr. Kerth, a cardiovascular surgeon who, after his examination, wrote a note in the hospital record stating, in pertinent part: 'Would favor doing an aortic arch study at time of coronary arteriogram if this is feasible.'

The procedure of the coronary arteriogram entails the passing of a catheter into a hole in an artery and the tip of the catheter is guided up to the aortic arch and then into the orifice of a coronary artery, dye is injected and an X-ray moving picture is then taken. The catheter is then repositioned into the orifice of the other coronary artery and X-ray moving pictures are similarly taken. The procedure of an aortic arch study entails the passing of a catheter to the orifice of each of the brain vessels in turn and similar pictures taken. Although different kinds of catheters are used in each of these two procedures, both go through the same hole in the artery. If the amount of dye used for the coronary arteriogram, which has first priority, is too much, . . . 'it may not be safe for the patient to do at the same sitting the other study'; or if an inordinate amount of time is spent to visualize the coronary arteries, it is in the best interest of the patient to postpone the aortic arch study to a separate time.

Morgenroth was discharged from the Pacific Medical Center on February 21, 1967, and readmitted on February 26, 1967. The hospital record contains a 'Consent to Operation' dated February 27, 1967, authorizing the performance of a selective coronary arteriography and aortic arch study. Both procedures were performed on February 28, 1967, with the incision in the artery being made through the right brachial artery, the artery in front of the elbow crease.

At the site of the incision into the brachial artery made for the passage of the catheters, a clot formed, a condition called a thrombosis of the brachial artery. An operation was required on the same day, in which the artery was opened and the clot removed. At the operation, it was found that the incision into the artery made for the insertion of the catheter for the procedures of coronary arteriogram and aortic arch studies had been made through a very large atheromatous plaque. Such a plaque is composed of a fatty substance that grows over with fibrous tissue and very often develops some calcium or lime salt in it.

Dr. Kerth, the consulting neurosurgeon at this operation, also examined pursuant to Evidence section 776, indicated that the finding of the plaque at the location of the incision into the artery made it likely that other fatty plaques would be present in other parts of the circulation. If, in fact, these fatty plaques are present in other parts of the circulation, then one of the well recognized risks of doing a catheter procedure in the patient is the risk of knocking off one of the plaques. If a plaque is knocked off, it will be swept into the circulation and will eventually lodge in a place where the artery becomes too small for it; if this should be in the brain, then there is a probability of a stroke. Dr. Kerth, however, indicated that the tests involving these recognized hazards would not be performed in the first place unless the patient had arteriosclerosis.

The result of the first coronary arteriogram and aortic arch procedures showed that Morgenroth had a complete occlusion of his right coronary artery and a 50 percent narrowing of the main branch of the left coronary artery. The diagnostic procedures thus indicated that Morgenroth was in much worse condition than the doctors had previously realized and an urgent candidate for surgery. Dr. Selzer referred him to Dr. Kerth, who concurred. Thereafter, on March 6, 1967, Dr. Kerth performed a Double Vineberg operation on Morgenroth. 2 In this procedure, the internal mammary arteries on each side of the chest are cut open and introduced into the heart muscle, with the hope that the blood coming through the arteries will sprout into a new channel that will then connect with those that have inadequate blood supply.

Morgenroth was discharged from the hospital on March 20, 1967, and was seen at Dr. Selzer's office on April 24, 1967, by Dr. Kelly, Dr. Selzer's partner. Dr. Kelly made a note in his record at that time: 'Rare attack of the angina now. Has arthritic discomfort of shoulder especially right shoulder. Advised regarding exercises.' Morgenroth was seen again by Dr. Kelly at his office on July 20, 1967, and Dr. Kelly's note of that date indicates: 'Doing well as far as the heart. No angina, but has clot indication of left leg. Sign of arterial insufficiency in the left leg. Seen with Dr. Kerth who agrees and wishes to enter for arteriographic studies and surgery.'

Accordingly, Morgenroth was readmitted to the Presbyterian Hospital (a part of the Pacific Medical Center) on July 21, 1967, and discharged on July 22 after undergoing trans-lumber aortogram. He was readmitted on July 25, 1967, underwent the diagnostic procedure of left femoral arteriography and was discharged on July 27. An evaluation of these procedures indicated that an operation for the condition in his legs was not feasible and that there was no medical or surgical way of improving the poor blood supply in his legs.

After Morgenroth's discharge from the hospital following the performance of the Double Vineberg procedure, he went back under the care of Dr. Evans in Chico, who saw him on May 25, 1967. Dr. Evans' note indicated that he had had no chest pain since his prior visit on April 12, even though he had had a couple of temper tantrums. He was seen again by Dr. Evans on June 26, 1967, at which time Dr. Evans noted that Morgenroth complained of some intermittent crampting of his left leg and that he had difficulty in walking. The deposition of Dr....

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