Niles v. City of San Rafael

• Decision Date: 02 October 1974
• Citation: 116 Cal.Rptr. 733,42 Cal.App.3d 230
• Court: California Court of Appeals Court of Appeals
• Parties: Kelly NILES, a minor, By and Through his guardian ad litem, David F. Niles, and David F. Niles, Plaintiffs and Respondents, v. CITY OF SAN RAFAEL and San Rafael City School District, Defendants, Cross-Complainants, Respondents and Appellants, MT. ZION HOSPITAL and David Haskins, Defendants, Cross-Defendants andAppellants. Civ. 34083.

Page 733

116 Cal.Rptr. 733

42 Cal.App.3d 230

Kelly NILES, a minor, By and Through his guardian ad litem, David F. Niles, and David F. Niles, Plaintiffs and Respondents, v. CITY OF SAN RAFAEL and San Rafael City School District, Defendants, Cross-Complainants, Respondents and Appellants,

MT. ZION HOSPITAL and David Haskins, Defendants, Cross-Defendants andAppellants.

Civ. 34083.

Court of Appeal, First District, Division 4, California.

Oct. 2, 1974.

Hearing Denied Dec. 26, 1974.

Sedgwick, Detert, Moran & Arnold, San Francisco, Crosby, Heafey, Roach & May, Oakland, Hassard, Bonnington, Rogers & Huber, San Francisco, for Mt. Zion Hospital and David Haskins, M.D.

Bronson, Bronson & McKinnon, Bishop & Barry, San Francisco, for City of San Rafael and San Rafael School Dist.

Musick, Peeler & Garrett by Joseph A. Saunders and Gary F. Overstreet, Los Angeles, for amicus curiae in support of the contentions of appellants.

Walkup, Downing & Sterns, San Francisco, for plaintiff and respondents; William B. Boone, Santa Rosa, of counsel.

CHRISTIAN, Associate Justice.

Suing for himself and as guardian ad litem for his minor son, Kelly Niles, David F. Niles has taken judgment in the amount of $4,025,000 against the City of San Rafael, the San Rafael City School District, Mt. Zion Hospital, and Dr. David Haskins. The judgment was entered on a jury verdict in that amount establishing defendants' liability for injuries which have totally and permanently incapacitated Kelly Niles. On the two public entities' cross-complaint for indemnity it was determined that they should bear $25,000 of the award; the remaining $4,000,000 was assessed against the medical defendants.

The medical defendants have paid $2,000,000 in partial satisfaction of the judgment, and attorneys' fees were fixed on the basis of that payment, the court reserving jurisdiction to determine additional fees upon subsequent payments on the judgment. The public entities and the medical defendants have all appealed, but only the medical defendants (hereinafter 'appellants') persist in attacking the judgment.

The facts necessary to consideration of the damage and indemnity issues are summarized. On June 26, 1970, 11-year-old Kelly Niles was playing softball at a school playground in a recreation program operated jointly by the City of San Rafael and the San Rafael City School District. The game was being supervised by an employee of the city's Park and Recreation Department. During the game a fist fight broke out between Kelly and another player over who was next at bat. The supervisor, who was inside the school building when the fight began, ran back to the playground when he learned of the fight and separated the two boys. Kelly had been hit in the head and was bleeding slightly from his lip. The supervisor tried to talk to the two boys, but Kelly ran to his bicycle and rode home; he was crying and appeared hurt and upset.

Kelly sustained in the fight a small fracture of the skull which tore an artery under the fracture. The resulting bleeding between the dura and the skull caused an accumulation of clotted blood that caused severe pressure on the brain; if untreated, this type of injury results in death.

Kelly arrived home from the playground at about 4:15 p.m., but his mother was away; his father (hereinafter 'Niles') arrived about 5:00. Niles saw that Kelly had been crying but Kelly would not explain why. The other participant in the fight, who arrived shortly after Niles, explained to Niles what had happened. Then Niles, who was divorced from Kelly's mother, drove Kelly to his apartment in San Francisco where Kelly was to spend the weekend. Kelly had cried throughout the trip from San Rafael to San Francisco and was in great distress on arrival at the apartment. Niles therefore took Kelly to the emergency room at Mt. Zion Hospital.

When Kelly arrived at the emergency room at approximately 5:45 p.m., he was examined by two nurses, an intern physician, and a pediatric resident. On the basis of his observations, the intern concluded that Kelly should be admitted to the hospital for observation of a head injury. The nurses and the resident physician agreed; the resident physician--who was the intern's supervisor--marked Kelly's chart 'Admit.'

The emergency room personnel had observed several signs suggesting that Kelly had suffered a head injury and that there was intracranial bleeding. Common symptoms of that type of injury include the following:

(a) A history of trauma to the head;

(b) A bruise, bump or welt on the head;

(c) Headache;

(d) Pallor;

(e) Perspiring;

(f) Repeated or forceful vomiting;

(g) Irritability and a desire to be left alone;

(h) Lethargy, grogginess, and lack of responsiveness;

(i) Slowing of pulse and rising of blood pressure;

(j) Stumbling gait and stiffening of limbs;

(k) Purposeless movement of limbs; and

(1) Dilation of pupils of the eyes.

The emergency room personnel knew that Kelly had been hit on the head; a large bump was readily apparent on Kelly's right temple; X rays showed swollen tissue but failed to indicate a skull fracture. Kelly complained of a headache and said that he did not want to answer questions he appeared irritable and lethargic and wanted to be left alone. Kelly became sleepier and more unresponsive; the intern wrote on his chart, 'Patient extremely groggy.' Kelly was pale and perspiring and vomited forcefully twice while he was in the emergency room. Kelly's pulse had been recorded at 62 when he was first examined, but it was noted on Kelly's chart that his pulse had dropped to 48. (A normal pulse rate for an 11-year-old child varies between 60 and 100.)

After the resident had concurred in the intern's recommendation that Kelly be admitted to the hospital, someone in the admitting office incorrectly told the intern that Kelly could not be admitted because he was not being treated by a private physician enjoying staff privileges at the hospital.

Dr. Haskins, Director of the Pediatric Out-Patient Clinic at Mt. Zion Hospital, was in the emergency room attending another patient; the resident sought his help in getting Kelly admitted to the hospital. After questioning the intern and the resident, Haskins talked with Kelly's father to determine whether he seemed capable of observing Kelly if hospital admission were refused. Haskins talked to Kelly in the emergency room, but he did not examine Kelly or look at his chart. Then Haskins talked to Kelly's father, concluded he was a responsible person, and told him Kelly could go home. Haskins advised Niles to watch for dilation of the pupils in Kelly's eyes, and to be sure that Kelly could be aroused from sleep.

When a child with a possible head injury is released from the emergency room, it is the usual practice of the hospital to give the parent a sheet listing symptoms that call for return of the child to the hospital. The head injury sheet used in the emergency room of Mt. Zion Hospital listed seven symptoms, five of which were present when Kelly was released from the hospital. ¹ The sheet was not given to Kelly's father.

At approximately 7:00 p.m., Niles took Kelly back to his apartment. Niles continued to observe Kelly for about an hour and a half, and learned from a first aid book that a slowing pulse rate is indicative of bleeding within the skull. When Kelly's pulse rate fell from 44 to 40 within a period of five minutes, and one pupil dilated, Niles rushed him back to the emergency room at Mt. Zion Hospital at approximately 8:30 p.m.

It was then determined that Kelly had intracranial bleeding; a neurosurgeon was called and Kelly was prepared for surgery. The neurosurgeon was delayed in traffic and surgery did not begin until some time between 9:20 and 9:50 p.m. A blood clot was removed and the bleeding was stopped.

There was some doubt during the first few days following surgery that Kelly would survive; he remained in a coma for 46 days before gradually regaining consciousness. He is now totally disabled: except for slight movements of the right hand and foot, he is paralyzed from the neck down. Kelly is mute although he communicates by eye movements; he hears and sees well. Although his body is paralyzed, Kelly's mental capacities appear to be unaffected by his accident. He responds well to special education. Kelly's condition can never be improved by medical or surgical treatment; the brain damage is irreparable.

Appellants make two principal arguments against the propriety of the judgment on the cross-complaint: (1) indemnity is improper because both tortfeasors were actively negligent in causing a single injury; and (2) improper procedure was employed in reaching the judgment on the cross-complaint.

The public entities were awarded judgment on the cross-complaint on the basis of the equitable indemnity doctrine propounded in Herrero v. Atkinson (1964), 227 Cal.App.2d 69, 38 Cal.Rptr. 490. In Herrero, Alice Lorenzo was injured in an automobile accident by a vehicle driven by Herrero. About 18 months after her injury, Lorenzo underwent an operation made necessary by the automobile accident; she died in surgery. Her estate then commenced a wrongful death action naming Herrero, a hospital and three doctors as defendants, alleging that Lorenzo's death was caused by a blood transfusion negligently administered by the medical defendants. Herrero cross-complained for indemnity against the medical defendants alleging that his liability for wrongful death attached only by reason of the negligence of the doctors and the hospital. The appellate court held that Herrero had stated a cause of action for indemnity, reasoning as follows: 'Although the original negligence of Herrero may be regarded in law as a proximate cause of the damages flowing from the subsequent malpractice of the cross-defendants, and the plaintiff may recover a joint and several judgment against all who are found liable, there is no reason why the ultimate burden of damages...