Oldis v. La Societe Francaise De Bienfaisance Mutuelle

• Decision Date: 27 January 1955
• Docket Number: No. 16078,16078
• Citation: 130 Cal.App.2d 461,279 P.2d 184
• Court: California Court of Appeals Court of Appeals
• Parties: Rolland OLDIS, Plaintiff and Respondent, v. LA SOCIETE FRANCAISE DE BIENFAISANCE MUTUELLE, a corporation, W. E. Cunha, Benjamin S. Page, Alfred C. Daniels, W. Lister Rogers, William P. Gilbert, Honora Sheeran, Mary Salter, and Florence Dumelow, Defendants and Appellants.

Page 184

279 P.2d 184

130 Cal.App.2d 461

Rolland OLDIS, Plaintiff and Respondent, v. LA SOCIETE FRANCAISE DE BIENFAISANCE MUTUELLE, a corporation, W. E. Cunha, Benjamin S. Page, Alfred C. Daniels, W. Lister Rogers, William P. Gilbert, Honora Sheeran, Mary Salter, and Florence Dumelow, Defendants and Appellants.

No. 16078.

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

Jan. 27, 1955.

Rehearing Denied Feb. 25, 1955.

Hearing Denied March 22, 1955.

Hadsell, Murman & Bishop, San Francisco, for La Societe Francaise de Bienfaisance Mutuelle, W. E. Cunha and Benjamin S. Page.

Lamb, Hoge & Killion, San Francisco, for William P. Gilbert.

Phil F. Garvey, San Francisco, for Honora Sheeran.

Peart, Baraty & Hassard, George A. Smith, Alan L. Bonnington, San Francisco, for Albert C. Daniels, and W. Lister Rogers.

Keith, Creede & Sedgwick, John S. Howell, San Francisco, for Florence Dumelow.

Heller, Ehrman, White & McAuliffe, Appel, Liebermann & Leonard, San Francisco, for respondent.

FRED B. WOOD, Justice.

During or shortly following a major operation performed November 6, 1951, plaintiff sustained a third degree burn which considerably extended the period of his hospitalization. He sued doctors, nurses and the corporation which owned and operated the hospital, recovering damages in the sum of $16,000 after a trial before the court without a jury.

He tried the case upon the theory that the doctrine of res ipsa loquitur as expounded in such cases as Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258, is applicable. The court found that 'following said operation, for a period of the next four days, plaintiff was confined to a bed in said hospital, virtually helpless, drowsy, in a semi-conscious state with his perception of pain lessened from the effect of said operation and the administration at regular intervals of pain relieving drugs and sedatives'; that during said period 'defendants, and each of them, carelessly, negligently and unskillfully cared for and treated plaintiff'; and that 'as a proximate result of the negligence and carelessness and lack of skill on the part of defendants, and each of them, plaintiff was caused to and did sustain the following injuries: A deep and severe third degree burn on his abdomen, and a severe nervous and physical shock.'

Question: Does the evidence support the findings? Our examination of the record convinces us that the answer is 'Yes.'

Plaintiff went to surgery in the morning of November 6th. He returned from surgery shortly after noon of that day. The burn was discovered on November 9th, following, about 10:00 a.m. Sometime during that period the injury must have occurred. He testified he did not and does not know what caused the burn; testimony which, in support of the findings, we must assume the trial court believed.

These facts brought the doctrine of res ipsa loquitur into play. As said in Ybarra v. Spangard, supra, 25 Cal.2d 486, 154 P.2d 687, 'Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard. Any defendant who negligently injured him, and any defendant charged with his care who so neglected him as to allow injury to occur, would be liable', 25 Cal.2d at page 491, 154 P.2d at page 690; '[i]t should be enough that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case of identification of the instrumentality as the plaintiff may ever be able to make', 25 Cal.2d at pages 492-493, 154 P.2d at page 690; 'where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct.' 25 Cal.2d at page 494, 154 P.2d at page 691.

The ruling in the Ybarra case was later summarized by our Supreme Court in Summers v. Tice, 33 Cal.2d 80, 86-87, 199 P.2d 1, 4, 5 A.L.R.2d 91, and expressed in these words: '* * * a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, 162 A.L.R. 1258. There the Court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to defendants to explain the cause of the injury.'

Those principles are applicable in our case even though the plaintiff herein was not 'unconscious' throughout the critical period. He was in great pain as a result of the operation and his senses were dulled by the administration of pain-relieving drugs. That makes the more credible his testimony that he did not know what caused the burn, nor when it happened; testimony it might be difficult to believe if he had at all times been in full possession of his faculties.

It was quite natural for the court in the Ybarra case to include the 'unconscious' state of the plaintiff therein as an element in its holding, for he was in fact unconscious at the time of his injury. But we do not think the court intended it to be regarded as an indispensable element in all cases, particularly in view of the following comment which the court made in the Ybarra case: 'The passenger sitting awake in a railroad car at the time of a collision, the pedestrian walking along the street and struck by a falling object or the debris of an explosion, are surely not more entitled to an explanation than the unconscious patient on the operating table.' At page 490 of 25 Cal.2d, at page 689 of 154 P.2d. The same may, we think, be said of the patient who, as found in the instant case, was injured while confined to a bed in a hospital, virtually helpless, in a semi-conscious state, with his perception of pain lessened from the effect of an operation and the administration of pain-relieving drugs and sedatives.

This question was factually involved in Milias v. Wheeler Hospital, 109 Cal.App.2d 759, 241 P.2d 684, a decision of this court, opinion by Presiding Justice Peters. There the patient was in a semi-comatose condition and did not feel the overhot applications. We upheld the giving of instructions on the doctrine of res ipsa loquitur upon the ground that if the jury had found certain facts the doctrine would have been applicable. Indeed, a patient's knowledge that a burn followed the application of a heating pad does not necessarily amount to knowledge of the specific cause of the burn in the absence of knowledge whether 'the heating pad was defective or improperly adjusted, or that the compresses had been dipped in some harmful solution, or excessive temperature, or several other causes.' Foster v. Delgrave, 129 Cal.App.2d 525, 277 P.2d 408, 410. However, the facts of our case do not require us to go that far for the basis of our decision. We hold that plaintiff's semi-conscious condition and his ignorance of the specific cause of the burn bring this case within the purview of the holding in the Ybarra case.

Plaintiff's Helpless Semi-Conscious Condition and Ignorance of the Cause of the Burn.

Plaintiff was unconscious during surgery and for a short time thereafter. During the remainder of the period, because of post-operative pain, he received 1/8th grain of morphine sulphate, hypodermically administered, every two hours around the clock, 34 injections during the three days following the operation. There is evidence that morphine dulls the mentality, slows the reactions and cuts down the feeling of pain, makes the patient sleepy and drowsy; repeated doses have a cumulative effect and could prevent a patient from feeling the pain caused by a third-degree burn. Plaintiff's resultant condition during this period was described as groggy, tired, confused mentally, quite confused; at times he blacked out. During this three-day period plaintiff was severely ill, very sick. He was recovering from one of the most painful operations known to medical science, the cutting out of the sympathetic nerves next to the spinal column. Oxygen was administered through a tube in the nose from time to time; and intravenous injections were administered to raise the blood pressure. There was a drainage tube inserted into the chest cavity, through the incision in his back, and connected to an underwater suction apparatus. At times a rectal tube was inserted. Through November 9th he had a relatively high fever and was at intervals injected with doses of penicillin. He lay helpless, unable to move except when shifted by a nurse. The bed was not cranked up. The first two days he was unable to talk; he just moaned.

The burn was severe, of the third degree, and located on the right lower quadrant of the abdomen a little below the belt line. Yet, plaintiff did not know he had been burned, nor how it happened. On the morning of November 9th he told the attending nurse 'he had a cramp on the right side.' He told her he had lain on that side. He referred to it as 'a muscle cramp.' He said it bothered him a little, but he didn't complain particularly and didn't say it was painful. The nurse examined the area, discovered it red and blistered, and notified two of the doctors. It was some time after November 9th and before November 22nd that plaintiff learned he had been burned. His remark to the nurse on November 9th about a muscle cramp was his first intimation to anyone of anything wrong on the right side of...